Intellectual Property Law

Back when I was losing on False Patent Marking.

Posted on April 01, 2010
Proof of objective facts and subjective intent are essential to success on a false patent marking claim (as well as on the inequitable conduct defense).  Showing that ‘patented’ was in some form marked on a product should not be hard.  In all ‘false’ conduct actions, the most difficult aspect is proving intent...

Still Curious Why Written Description Compels a Factual Inquiry.

Posted on March 31, 2010
Many en banc decisions lose impact soon after being issued.  Ariad v. Lilly raised such a threshold issue, about the written description necessary to obtain a valid patent, that it might have had a lasting impact.  Instead, clever patent prosecutors will adapt their practice, add more species and more research results, and go on obtaining [...

Word density

Posted on March 29, 2010
Why is that parties are limited to only so many words or pages, or density of type when pleading a cause, but courts can use unlimited pages to set out their decisions.  Presumably, the pleader is the better editor, relying on clearer, declarative sentences, while the deciders just let it all flow across endless pages...

Licensed to Pay, But Cancelled One Day.

Posted on March 10, 2010
Licensing disputes so often involve termination provisions.  Someone wants out, but has to manufacture a way out - and, the other party sues for wrongful termination.  Many of the decisions are fairly pedestrian contract interpretation ruling, but then there’s Brunskill Associates, Inc...

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NFP means for reaching result.

Posted on February 17, 2010
In a NFP order, the CAFC affirmed trial court rulings of not invalid and enforceable, in a suit about patents for those clunky tag devices and sensors used to deter shoplifters.  Defendants appeared for trial in 2008 and stipulated to infringement, choosing to defend on invalidity and unenforceability grounds...

Escaping the Rune Realm Anti-Circumvention Patrol.

Posted on February 12, 2010
An argument lost, an opportunity renewed.  Way back, before online multiplayer games were so viral, copyright interests made comments against passage of the DMCA.  Particularly questioned were prohibitions on DRM circumvention measures, but the DMCA, with those prohibitions, was enacted by Congress...

Is What is Wired, Tied?

Posted on February 11, 2010
A newly-filed suit in Michigan, accusing Comcast of tying premium cable TV with the rental of a set-top box, presumably will add to the cases before the Multidistrict Judicial Panel, 626 F.Supp.2d 1353 (MDL 2009).  In Rogers v. Comcast, 2:10-CV-10547 (E...

Spring IP lectures.

Posted on February 09, 2010
Per an earlier post, this Spring semester has a lot of IP to offer.  Tomorrow afternoon, 2/10, Prof. Donald Chisum will sum up some of the most significant patent cases from 2009.  Then, on Thursday afternoon, 2/11, Prof. Janice Mueller will give the Randall-Park lecture on The ‘Impossible Issue’ of Non-Obviousness in Design Patents...

An Economy of Terms.

Posted on January 27, 2010
Of late, most of my posts are on Twitter.  Work, school and play are causing me to cramp down my expressiveness to 140 characters. Check it out over at http://twitter.com/SPATLAW

FTC Thinks Surround Sound Comparable to Stereo.

Posted on January 20, 2010
The FTC decided, after public comment, to retain the Amplifier Rule, which is for consumers to compare power outputs of amps used in home entertainment products. http://www.ftc.gov/opa/2008/02/amp.shtm It decided there was no present reason to amend the rule due to the multi-channel home theater and surround sound systems, which now take up a lot of the market...

Way to Punch Up Your Law Practice.

Posted on January 17, 2010
IP and patent attorneys tend to wonder how best to position their advertising.  The back, and fold-over on the phone books are taken up with ‘are you injured?’ as is most of afternoon TV. Saturday night at the Hard Rock Hotel, few knew about the super flyweight bout, but it too was sporting some lawyer advertising...

Remember When You First Heard ?Kick Out The Jams!?

Posted on January 15, 2010
Hey Forever 21 got sued, again, for copyright infringement - and it’s not over clothing design. It is alleged in a L.A. Federal Court complaint that F21 made and sold clothing bearing a copyrighted photo of the [to some, legendary] rock band, the MC-5...

Procedural Process Errors, and Uninfringed Product by Process Claims = Certiorari?

Posted on January 08, 2010
At its conference today, the Supreme Court may decide, or decline, to consider the product-by-process issues in Astrellas Pharma v. Lupin Ltd., 09-335. The mystery of the chemistry was detailed by blawgers right after the CAFC issued its 8-4 decision on May 18, 2009...

Except as Provided Elsewhere, or Trumped, I?ll Own all the IP.

Posted on December 29, 2009
An IP decision of the Delaware Chancery Court reminds of two risks - wholesale incorporation by reference between separate IP agreements, and judicial misreading of patent law. In Cepahlon v. Johns Hopkins, 2009 WL 4896227 (Del. Ch. 12/18/09), three forms of agreement dealt with the ultimate ownership of IP developed by a university researcher...

If nothing else, patent attys will follow the semantics.

Posted on December 28, 2009
All the upsurging interest in computer-operated method claims being Bilski-ed out of existence raised curiosity about whether ‘lip service’ was being paid to the machine-or-tranformation standard. A search in the published, pending patent applications database yielded 1867 apps, published in 2009, describing a computer and using the claim term “transform...

Odd Inventions of Ought-Nine

Posted on December 27, 2009
The Telegraph of London devoted many-megapixels to show some odd inventions from this year. Take a look at these.  The “Husband Hunting Bra”, the “robo-toilet” with the “AutoClose” feature, the “PediSedate,” which gently sedates youngsters, the “JetLev-Flyer” that flies you over your pool, or the “Isophone” that lets you speak with other in the pool, and [...

Vive la Different Way of Co-creating.

Posted on December 14, 2009
The French court decided a design case by a petit-mains, which are seamtresses who present design samples to major fashion houses, hoping to secure a contract to purchase.  Basically, the court issued a split decision, granting both sides damages that nearly offset, and ruling for each side on some claims...

If Patent Troll Sends the Letter, Then a Case-or-Controversy ?Implicitly? is Asserted.

Posted on December 04, 2009
 The CAFC reversed the dismissal of a DJ action, noting that it was a close case for jurisdiction, but the scales tipped due to the notice letter coming from a “non-competitor patent holding company.”  (N/K/A, “no-co-pho-co” which I find has an alliterative syncopation more appealling than ‘patent troll’)...

Citizen Copyright Monitors

Posted on November 24, 2009
A recently-filed copyright case pleads that one of defendant’s employees called and reported that the single-user license for a subscription was being exceeded.  The plaintiff in Energy Intelligence Partners v. Fitch, publishes reports on the oil & gas markets...

Business Method - Reverse Auction by USPTO.

Posted on November 24, 2009
Your USPTO needs copy paper, and it solicits bids in a notice in FedBizOpps.  But, it is not a lowest, when-opened bid solicitation.  Rather, the Commerce Dept. uses a reverse auction method, as stated in the solicitation:                                     [...

Rule 403 Prejudice Comes with the Combo.

Posted on November 20, 2009
As one Delaware jurist used to ask, ?how many times do you patent lawyers want me to try your case??  It was a rhetorical inquiry, since the judge had the power to keep it to one, even though the lawyers might prefer 3 trials: claim construction, liability and damages (plus maybe a TRO mini-trial on [...

Local Patent Rules Might Have Unintended Impact.

Posted on November 18, 2009
LegalMetric sends out routine emails referring to its statistical analysis of patent litigation. Recently, it reported the most pro-patentee and [allegedly] pro-infringer districts among the federal courts. In order, the top 10 districts favoring parties accused of infringement are: 1...

Spring IP

Posted on November 16, 2009
As 2009 winds down, I begin preparing to teach in the Spring semester. The greatest number of IP law courses yet are offered in the coming semester. My class on IP Transactions L936 is one among the classes offered in Copyright Law L929, Patent Law L934, and also, the seminars in Advanced Patent Law L [...

Brand Assassins.

Posted on November 14, 2009
Businesses divide large blocks of time between building their brands, and managing risks. Crunch time comes when unforeseen actions give the brand a black-eye. The case is point is the F1 Grand Prix team of Renault, which like most motorsports teams, runs a car that resembles a rocket-shaped billboard...

Ariad v. Lilly - amicus diverge.

Posted on November 12, 2009
My initial reading of the amicus briefs to the Federal Circuit, on the two en banc questions about the written description requirement, indicated two clusters of argument.  There are contentions that the requirements “as applied” impact the life sciences harshly...

Was this award of counsel fees ?exceptional? or less.

Posted on October 19, 2009
The premise of prosecution history estoppel has strength in claim interpretation, but is a weak reason for assessing “exceptional case” attorneys fees.  The Judge awarded attorney’s fees to the accused infringer in iLor v. Google, 5:07CV109 (E...

Headless Calvaryman Unseated by Iqbal.

Posted on September 17, 2009
In the old days - what, like five years ago -  an infringement defendant sued by a competitor was likely to counterclaim based on patents possibly applicable to both parties? product lines.  Such counterclaims served a zero-sum strategy, and often was a gambit toward settlement by cross-licensing...

Twombly?s Alternatives Make Pleading Personal Jurisdiction Particularized.

Posted on September 01, 2009
The seeds of legal change often are found in unpublished, Circuit opinions. Among that mix are decisions interpreting, expansively, the Supremes’ remarks about adequate pleading in the Twombly and Iqbal cases. Serious parsing and explanations emerge when a panel decision extends the “plausible” requirement, without at the same time, implicitly amending federal civil procedure rules [...

Implementing A Method of Suing for Theft of Patented or Publicly Known Secrets.

Posted on August 28, 2009
The Ad world tends to self-publicize events involving itself, such as the suit against WPP and JWT arising from an ad campaign for Microsoft’s Bing search service (they’re so cool, everyone in the club knows them by their initials). News reports suggested a patented method to produce a “program-intergrated advertisement” was allegedly infringed...

SOX Whistleblower Liability Claim Raised by Firing IP Lawyers Who Reported Possible Inequitable Conduct by a Merger Party.

Posted on August 18, 2009
Husband & wife IP lawyers, working in-house, raised with their superiors the possibility of a material, pre-merger non-disclosure by a merger partner about its key patent, which could impact the post-merger revenue that the patent may generate. Within weeks, both lawyers were fired by execs who came over from the merger partner...

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