Welcome News

This is welcome news in my opinion regarding the enforcement of copyrights. The Associated Press is reporting a change in tactics by the music industry. I think this is a great idea because it gets more the root of the matter for the music industry, still protects the subject copyrights, but does not alienate consumers.

Important Trademarks

Trademark disputes have always interested me. This dispute between a Czech brewery and Budweiser is very interesting (HT: Wall Street Journal). It is also another demonstration of how important and valuable trademark rights can be, especially foreign trademark rights. A product may become incredibly popular in the U.S. and then be ready to get into foreign markets, but it may already be too late. Success is copied. That certainly includes foreign companies copying a product and/or trademark the see become popular in the U.S. It is important to secure those foreign trademark rights early.

The National Jury Instruction Project has developed a set of Model Patent Jury Instructions (HT: PatentlyO). First of all, I think it is a great idea to standardize jury instructions for patent cases. Having standard jury instructions may help eliminate confusion for possible jurors. Also, having standard jury instructions that will be applied in the case agreed upon at the beginning of the lawsuit helps keep everyone on the same page right from the start. I also like the way the jury instructions try to use terms that will be a little more understandable for the potential jurors. The only problem I see with that is that litigators may use the terms generally accepted by patent professionals, and this could cause some confusion with jurors who will be using the terms in the jury instructions.

This is a great post about the problems in the US Patent and Trademark Office, and the idea of changing the rules of patent procedure (HT: IP Watchdog). It really does sum up the frustration patent applicants and patent attorneys have with the PTO. Changing the rules in the middle of the process is unlikely to help the situation. Patent protection is still the best protection available for those inventors trying to protect their intellectual property rights, but it would be nice if that protection could be obtained, or denied, in a timely, effective manner.

Coldplay Sued for Copyright Infringement

Coldplay is being sued for copyright infringement. This will be an interesting case to follow. My prediction would be a settlement of some sort because of the amount of money involved and because a jury's reaction is basically impossible to predict. I would also add that in my opinion, copyright law is relatively difficult to define, adding one more layer of uncertainty.

New Rules

The news rules for patent prosecution proposed by the Patent Office have been causing quite a stir for a long time, as illustrated by these articles here and here. The news rules would provide serious restrictions on how patent applications are filed and how patentable material is protected. The rules would certainly favor the Patent Office over the inventor and that is not a good thing. It seems that in the past, the Patent Office has been a bit more liberal about granting patents and then letting the market sort things out later. I am not opposed to this idea because the result is that only those patents truly worth something end up in the court system and it allows any inventor to at least have their chance at coming up with "the next big thing."

Employment Contract Is Key

The Chicago Tribune reports that MGA Entertainment, the maker of Bratz dolls, will not be allowed to continue to sell the dolls. MGA Entertainment and Mattel have been in a legal battle and now Mattel has basically won the war. The article says the damages are based on claims of breach of contract and copyright, but the most important point is that the individual from MGA Entertainment claiming to have developed the Bratz dolls came up with the idea for the dolls while working at Mattel. This case is a huge victory for employment contracts that protect intellectual property.

Simplified Version

This article by Brian Bethel does help clear up one common misunderstanding. Having a trademark does not allow the trademark holder to monopolize use of that particular word or phrase. The down side of the article is that it makes the test for determining likelihood of confusion sound easy. There are cases almost too numerous to mention about when a comparison of two marks actually results in a likelihood of confusion, and the inconsistency about results is well-known. As is often the case, what can appear to be relatively straight forward turns out to be anything but in a courtroom.

Patent Ambush

Zusha Elinson provides a great article about the idea, and consequences, or a "patent ambush." I have some experience with patent holders asserting rights in a matter where there is an applicable regulatory standard. It does seem that there is something unfair about a patent holder being in the position of an indispensable licensor. At least this shows that such a patent holder should only be able to achieve that status after full disclosure.

Possible Attorney General

Pres.-Elect Obama's possible choice for U.S. Attorney General, Mr. Eric Holder, has a strong inclination toward protecting intellectual property rights, and especially stopping pirating of software and music. This is one area where I would agree with the federal government getting involved in the enforcement and protection of individuals' intellectual property rights, when it requires or involves international contacts. I have a lot of concerns when it comes to the enforcement of copyrights against individual citizens, but protecting intellectual property of all kinds against international piracy is something I readily support. From an intellectual property perspective, Mr. Holder may make a fine Attorney General.

Patent Practioner Annual Fee

The United States Patent and Trademark Office has now implemented its Patent Practioner Annual Maintenance Fee. Beginning now, all patent attorneys will have to pay $118 every year to maintain registration with the USPTO. I dare say this fee will only increase over the years.

Enforcing Copyrights

The way record companies have tried to enforce copyright laws has always been of interest to me. This case that will help determine whether the copyright laws and their enforcement are constitutional should be very interesting. One thing I have never understood is the way damages are calculated for copyright infringement. I understand that damages can be difficult to determine, but the amounts awarded seem very unreasonable. I know that in trademark law the "potential" for damages is very great, but the "actual" damages are usually limited by available evidence. It seems copyright law should be able to strike some sort of balance. The awards just seem to be disproportionate with the offenses.

Willful Infringement Harder to Prove

Universal Avionics has prevailed in summary judgment against Honeywell with regard to Honeywell's claims of willful patent infringement. The Court in this case, US District Court of Delaware, found that Universal Avionics' knowledge of the patents at issue was not enough to support a finding of willful infringement. This sounds like a good, correct ruling. The concept behind "willful" patent infringement requires more than just knowing about a competitor's patent.

Business Innovation

Law firms and lawyers, like businesses, will need to innovate and think ahead if they want to be prepared for the economic challenges that all businesses will face in the current economic landscape. Clients will be looking for ways to save on costs without cutting deeply on legal representation. This is just one reason I like working where I work, and in the field where I work. I am able to do work for client all around the country, but I can live in an area where I do not need to charge the prices of the big firms in big cities, and the difference in legal representation is not that great. However, I know this is not enough. Clients need a lawyer that will stay current with or ahead of the market so they can provide valuable and reliable legal advice. The lawyers that do that best will not only survive, but thrive.

Worth the Attempt

The BBC provides a story that Lego was not successful in the EU in its attempt to obtain a trademark for the shape of its toy blocks. This will obviously be a tough decision for Lego, and of course, they plan to appeal the decision. I certainly cannot blame Lego for trying because trademark protection like this is certainly very valuable and worth protecting. That functionality argument they are facing may be tough, but I wish them well. A valuable trademark is well worth the effort of protecting.

New Rule on Privilege

Pres. Bush has recently signed a law that creates a new Federal Rule of Evidence, Rule 502. Obviously, it is important that attorneys understand this new rule and its implications, but clients should be aware of this rule as well. Attorneys need to be aware of the rule so the elements regarding disclosure are understood, and so the possibility of an agreement between the parties is used advantageously (see part e of Rule 502). Clients need to understand the rules about disclosure as well because it has been my experience that sometimes clients reveal privileged information and do not realize it because they did not reveal or make public the actual document, and therefore they think the information is still protected by privilege.

This new rule of evidence can be very helpful in discovery and should be relieved and evaluated. I do think it can help limit some of the costs of discovery when used appropriately. And doesn't everyone want to do everything they can to limit costs nowadays.

Always Changing

One of the things that never ceases to amaze me is how certain thing adapt and how someone, somewhere will find a way to make a little money. The latest example is how MTV and MySpace will team up to cash in on video clips of shows posted on the internet. This is a great idea because I know that I do not catch much TV, but if there is a clip that interests me, I can find it and watch. Previously, that has been generally commercial free, but I will not be surprised when that changes.

Importance of IP Rights

I think it is important to note that the trend appears to be companies continuing to innovate and protect its intellectual property, even during economic uncertainty. It shows the importance of intellectual property rights at all times, not just when the economy is doing well. Having said that, I also think intellectual property rights can be obtained and protected in an affordable, responsible manner. For the great majority of companies, the services available from larger, more expensive firms does not differ enough with the services from smaller firms to warrant the great disparity in costs.

Book Deal

This settlement by Google is certainly an interesting copyright development. The internet is still new enough, and functions and processes are changing quickly enough, that the interface between intellectual property law and the internet is the most interesting aspect of IP law. It will be interesting to see how Google moves forward with its plans for a library after this deal is done because it will certainly set a lot of precedents.

Not Alone

I cannot say I blame any attorney that would drop a client like this. I know it is hard to believe, but most attorneys I know are truly trying to help their clients, both to avoid and navigate legal issues and to grow their client's businesses. It does an attorney no good when a client mis-manages its company.

Patent Re-Exams

It is not surprising that patent re-exams are up, especially in light of the "hightened" standard for obviousness. I am representing a defendant in a patent infringement suit and I have been trying to convince all involved that a re-examination of the patents would be a fantastic idea. Maybe this article will help.

Keyword Advertising

Litigation involving trademarks used as keyword advertising by various search engines is something I have some experience with. I have really enjoyed this work, partly because it is an area of trademark law definitely on the cutting edge. I would really love to see the settlement agreement between American Airlines and Google, not to mention the one coming between American Airlines and Yahoo. It would be very interesting indeed, and very helpful for my own clients facing similar issues.

Billable Hours

It seems a new push or idea about getting rid of billable hours surfaces on a regular basis. Part of me really likes this idea, but part of me also sees some real problems with getting rid of billable hours. Each case ends up being unique and requiring its own special attention. Not to mention, certain clients require more attention than others. These things are just facts of the practice, not good or bad. This is also why I think the best course of action is to always provide affordable quality. I may not work in the nicest office in town, or drive a new company car, but my clients do not have to pay for that either. I am not saying a "high priced" attorney is not worth the money, but I think the difference in legal service provided is not usually proportionate to the difference in costs of the service.

Copyright Bill Now Law

Pres. Bush has approved the Prioritizing Resources and Organization for Intellectual Property Act. I still have serious doubts about this bill. Copyright laws are already a mess and getting an executive branch official in on the mess will probably not help matters. If music publishers like the bill, it is probably not a good thing. Also, it appears Pres. Bush is not anxious to appoint to a "Copyright Czar."

Finances and Science

This article describes the connection between the financial markets and research and development. Obviously, patent prosecution is one of those areas relying heavily on research and development. The interesting flip side of this coin is that this may also be a great opportunity to break into a market. As with most things in life, timing is everything.

Cannot Escape the Financial Crisis

The thing I find interesting about this reference to Wall Street wanting more details on the "bailout" is where I found it. Even this primarily intellectual property news service has an article about Wall Street and the financial crisis.

Insurance and Fraud

This article is indirectly related to my curiosity about fraud and intellectual property matters. An insurance company not wanting to get involved in fraud claims does not surprise me, especially if the standard for proving fraud remains lowered.

More Virtual World IP Matters

Here is another article about the intellectual property issues that will be coming from the virtual world. This will certainly be a growing, and interesting, field of intellectual property law.

Intellectual Property in Virtual Worlds

One of the things I enjoy about working with intellectual property rights is the cutting-edge technology aspect of the whole thing. Sure it is easy to see how patents can put you on the edge of technology, but trademarks and copyrights are right there too. Advertising in virtual worlds will no doubt create all kinds of problems and concerns for intellectual property owners in the real world. For example, see these articles here and here and here.

Internet Radio

This is good news for internet radio providers, and I like internet radio providers. It does not surprise me that Congress had to step and help internet radio providers deal with copyright owners. Copyright can simply be messy and expensive.

New Fees

The Patent & Trademark Office will have new fees effective October 2, 2008. Always good information to have available.

IP Bill Passes Senate

The Senate has approved the bill that would enhance certain remedies for the violation of intellectual property rights. My big problem with this bill is getting the government involved in enforcement actions, which seems very unusual. My other problem in general is that this bill seems designed to please Hollywood more than the average intellectual property holder.

Worth Watching

Having done a fair amount of copyright law, this case in Minnesota will definitely be worth following. Copyright law tends to be a bit of a mess and this initial verdict does seem exorbitant. I also think it is interesting that the Judge asks for help from Congress. Good luck with that.

Patent Exhaustion

This is a great article talking about the doctrine of patent exhaustion, or the first-sale rule. It provides some really good principles to keep in mind with regard to licensing patent rights.

Economic Concerns

Law firms will certainly not escape the concerns associated with the financial markets. As always, it is a good time to take very good care of the clients you have and focus on helping them with their needs and concerns during this time.

Constitution Day

Since it is Constitution Day, it would be a great day to read or re-read the Constitution. I think it is great reminder that intellectual property rights are based on "Constitutional" principles. Article 1, Section 8, Clause 8.

Patent Reexams

The recent Federal Circuit decision In re Swanson, 2008 U.S.App. LEXIS 18928, (Fed. Cir. Sept. 4, 2008), will make obtaining a reexamination of a patent easier. This case provides a great opportunity for litigators who do a lot of patent infringement defense work. I certainly know some litigators that would rather have the Courts decide validity issues, but I think getting a reexam is my preference. The standard of review is better in the reexam and the recent cases on obviousness make your chances in a reexam pretty good. Of course, this is from the perspective of someone doing more defending in patent infringement cases.

Inequitable Conduct

Another AIPLA amicus brief will certainly be worth watching. The standard for proving inequitable conduct, as well as deciding the appropriate remedy, will be issues to watch closely.

IP Enforcement Legislation

The Senate Judiciary Committee has approved a bill that is supposed to toughen laws related to the enforcement of intellectual property rights. I am not sure I like the part in the bill about having national and international IP Enforcement Coordinators. Since when was it anyone's job to enforce IP rights except the IP owner? Not to mention, if the current problems with the Patent Office are any indication, I certainly do not want more people unfamiliar with IP enforcement overseeing the process. Harsher penalties is one thing, but getting help from the government with enforcement sounds like a really bad idea to me. No wonder the entertainment industry likes this bill so much.

Fraud in the TTAB

Claims of fraud in the TTAB is a subject I have been following for a while. Unfortunately, longer than I have had this blog. However, the recent amicus brief from the AIPLA provides a great opportunity to christen this blog, and try to bring a little more awareness to this issue. It is clear that over the last couple years, the TTAB has lowered its standard for finding fraud by not requiring the necessary evidence for deceptive intent. Hopefully, the TTAB will be able to correct course. The amicus brief should certainly help.