Intellectual Property Law

How to guard Terms and Conditions agreements from being found unenforceable after Harris v. Blockbuster, Inc?

Posted on November 18, 2009
The U.S. District Court in Harris v. Blockbuster, Inc. (622 F.Supp.2d 396) denied Blockbuster’s motion to compel arbitration under the terms in the Click-Wrap Agreement that its customers were required to accept as a condition of joining Blockbuster online...

No Doubt Sues Activision Under Right of Publiciy Claim

Posted on November 12, 2009
The Orange County based rock band, No Doubt, has recently filed a lawsuit in Los Angeles Superior Court, claiming that Activision, the creator of Band Hero (the latest of the Guitar Hero series), exceeded its contractual terms that allowed activition to use the  likenesses of band members Gwen Stefani, Tony Kanal, Tom Dumont and Adrian Young in the [...

Do Ringtones Played in Public Spaces Violate the Copyright Act?

Posted on November 09, 2009
In an attempt to collect additional royalties from Verizon Wireless and AT&T, ASCAP recently tried to persuade a federal judge that playing a ringtone on a cellular phone in public amounted to copyright infringement.  Enforcement issues aside, In re Application of Cellco Partnership (09 CIV...

Germany?s Proposal to Protect Publishers

Posted on November 08, 2009
Publishers around the globe are suffering from consistent reductions in ad sales and revenue driven by decreased circulation.  The most common target of the publishers? anger and frustration have been online aggregators.  In the U.S., aggregators have been party to a series of lawsuits, most of which [...

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Is peer review the future of patent examination?

Posted on October 29, 2009
It is no secret that the USPTO is overwhelmed with patent applications.  Indeed, this was the motivation behind the now abandoned rules changes the office proposed recently.  Inherent in an overburdened system is the likelihood of errors, especially by omission...

Google Tried to Settle Copyright Infringement Cases with $60 in China

Posted on October 19, 2009
What can $60 do in copyright infringement cases? Google thought this can be the settlement amount. Since Google launched Google Books, its online digital library service (www.print.Google.com) in 2004, the company has overcome quite a few hurdles in obtaining authorization to publish copyrighted works, including reaching settling agreement with the American Author Guild [...

Vermont Brewery Challenged by Monster Energy Drink Over Trademark

Posted on October 16, 2009
Rock Art Brewery owners Matt and Renee Nadeau received a cease and desist letter from makers of Monster Energy Drink (Hansen Beverage Company) to stop selling its Vermonster beer and drop its efforts to get a federal trademark for the name.  Hansen claims use of the name Vermonster beer “will undoubtedly create a likelihood of [...

Controversial USPTO Rules Rescinded

Posted on October 08, 2009
The USPTO announced today that it will file a motion to dismiss in Tafas v. Kappos, the case regarding the validity of a controversial rules package proposed by the USPTO.  This effectively marks the end of the rules proposed to help make the USPTO reduce its application backlog...

Modest Recent Changes in UPTO Patent Examination Practices.

Posted on October 04, 2009
            As everyone well knows, the USPTO faces a gigantic backlog of patent applications (around three quarters of a million applications) that leads to significant wait time for inventors.  In view of this, USPTO director David Kappos announced some encouraging news last week in the form of changes to the examination system...

Trademarks get quacky?..

Posted on October 02, 2009
There is a business dispute with IP ramifications currently ongoing in the San Francisco area.  This dispute centers on duck tours.  Everyone here in Boston is probably familiar with the duck tours that use WWII-era amphibious vehicles (or replicas) to tour the city both on land and water...

Looking to make a difference out of law school?

Posted on April 27, 2009
This woman did: Barbara A. Ringer, who joined the Copyright Office at the Library of Congress straight out of Columbia Law School, and 21 years later oversaw the passage of the revolutionary Copyright Act of 1976. At the time Ms. Ringer joined the Copyright Office, the 1909 law in place provided for 28 years of [...

Conviction in The Pirate Bay Case

Posted on April 17, 2009
Today in Stockholm the Swedish District Court handed down a  $3.5 Million fine and one year in jail time for the people behind The Pirate Bay, a popular bittorrent tracker.  While the people fined say they would rather burn down their homes than pay the fine, (Ars interview), it appears they will have to serve [...

Wyeth v. Levine - Are we in for a world of ubiquitous black box warnings?

Posted on March 24, 2009
The Supreme Court’s recent decision in Wyeth v. Levine held that FDA approval of a drug’s labeling does not preempt a state law tort claim for inadequate labeling.  So what do you do if you’re counsel to a pharmaceutical company making physician-administered drugs?  Put the biggest, scariest black box warning you can on every prescription drug [...

Pfizer Buys Wyeth, Industry Consolidates, IP Lawyers Rejoice

Posted on January 26, 2009
Pfizer?s purchase of Wyeth is big news for the pharmaceutical industry, and for big business in general.  Because its blockbuster cholesterol drug Lipitor comes off patent in 2010, probably ceding much of its $12.6 billion market to generics, Pfizer went looking to boost its pipeline in search of the next blockbuster drug...

A win for end users: Apple (finally) goes DRM-free

Posted on January 25, 2009
On January 6th, Apple announced that it will offer music from all four major music labels (Universal, BMG, Warner Bros. and EMI) for the first time as DRM-free downloads.  This is a huge step for iTunes, finally catching up with the method Amazon MP3 has used since its inception...

A Shoveler?s Manifesto: Can I Lay Claim To That Parking Space?

Posted on January 22, 2009
Should I have a property right in the parking space I laboriously shoveled out after yet another New England winter storm?  Can I lay any legal claim to that space when I leave it, such as by placing a marker of some kind in it?  Should I be entitled to slash the tires or break [...

The Game of E-Discovery

Posted on April 21, 2008
An entertaining and informative piece on the “game book” for conducting e-discovery, using the metaphor of a basketball game. Practical and specific points and tips for anyone interested in the new world of electronic discovery.   “[I]f you play hide the ball in e-discovery, and get caught, you may not only lose the case, but you may [...

Privacy in Web-Based E-mail

Posted on April 09, 2008
Given the way that the gov’t can discover your personal information–name and address–from your IP, if you care about privacy, then you should care about how your IP is revealed. Now this can be done in many ways regarding web browsing, but how about web-based e-mail? I’ve looked at Gmail and Yahoo!, and Yahoo! puts your [...

How the Government Attributes Internet Traffic to a User

Posted on March 26, 2008
From U.S. v. Carter, No. 2:07-CR-00184-RLH (GWF), 2008 WL 623600, at *4 (D. Nev. March 6, 2008): The Affidavit then described the steps taken by the Government to identify the user of Internet Protocol (IP) address 68.108.184.145. A search of the publicly available website arin...

Cool Queuing Theory Model Suggests Continuations Not the Problem at the PTO

Posted on December 14, 2007
Recently on Bill Heinze’s I/P Updates, I read about a note published by George Mason authors entitled “Improving Patent Examination Efficiency and Quality, An Operations Research Analysis of the USPTO, Using Queuing Theory“. 17 Fed. Cir...

Another Criticism on the Demise of OiNK (and the Problems of Class and Indie Rock)

Posted on November 26, 2007
Great post from marathonpacks (via fluxblog) on the demise of OiNK: Yet what these people don?t understand, or at least won?t admit to understanding publicly, is that OiNK was a symbolic subcultural mirror of exactly everything they profess to hate about their vision of mainstream culture...

Another Court Recognizes an Expectation of Privacy Over E-mail

Posted on November 26, 2007
From National Economic Research Associates, Inc. (”NERA”) v. Evans, 21 Mass.L.Rptr. 337 (Mass. Super. 2006): NERA contends that any reasonable person would have known that the hard disk of a computer makes a ?screen shot? of all it sees, which the computer then stores in a temporary file, including e-mails retrieved from a private password-protected [...

Choosing Strong Passwords

Posted on November 18, 2007
Not quite a “law hack,” barely a “life hack,” maybe just a “memory hack.” But in response to this Lifehacker mention of an algorithm to create answers to “dumb” security questions, I decided to throw out my method of making memorable, strong passwords...

Law Hacks

Posted on November 17, 2007
The ABA Journal online published a list of “law hacks” this past summer. They group these “hacks” under E-mail, Your PC, Time Management, Phones, the Web, Software, Low Tech, Your Brain, Your Money, Hardware, and more. (If you’re unfamiliar with the world of “hacks” or more properly “life hacks,” then they’re generally tidbits of advice [...

District Court Blocks PTO New Continuation & Claim Rules

Posted on November 02, 2007
The Eastern District of Virginia court hearing the case of Tafas v. Dudas issued a preliminary injunction on Oct. 31 blocking the PTO’s implementation of its new continuation and claim rules that were to go into effect on Nov. 1.  In that case, a number of plaintiffs, including Glaxo Smithkline, had joined together to block [...

Waffles! Hydra! Pink!

Posted on October 30, 2007
OiNK’s new home page is now hawking waffles—and links to a Google search on”what to use instead of oink.” (The first result is brokep’s (of The Pirate Bay) blog post, appropriately titled, “What to use instead of Oink (waffleswaffleswaffles and jam)...

Extralegal Methods for Protecting Our Perceived File-Sharing Rights

Posted on October 25, 2007
In response to this dig on This Recording (where Alex Carnevale compares siding with the RIAA as supporting lynching): I can’t say that I support what the RIAA is doing. I think, reflecting upon Tim Wu’s articles on socially-acceptable crime, the RIAA is a private interest forcing the hand of government to expend tax-payers’ money [...

Are US-Based OiNK Users at Risk for Legal Liability? And Why This Was a Smart Move by Big Music

Posted on October 24, 2007
Idolator has two enlightening exchanges with US attorneys about whether US-based OiNK users are at risk for copyright infringement. The take-home is “yes,” but the likelihood of prosecution, on the other hand, is low: I think it depends on how quickly the RIAA gets its hands on any of the server logs...

OiNK File-Sharing Community Shut-Down

Posted on October 23, 2007
Now, we can talk about it: OiNK, the invite-only, free file-sharing community was raided by the police, and the owner was taken into custody. OiNK (once available at oink.cd)was known on the street for distributing a lot of not-yet-released and pre-release versions of albums...