Intellectual Property Law

Federal Circuit - Down with the Rule of Thumb

Posted on January 19, 2011
For years, one tool available to testifying experts in evaluating royalty rates as a basis for damages in patent litigation has been the "25 percent rule of thumb," although the Federal Circuit has been unclear in precisely how it viewed the rule...

Do Not Track - the FTC's New Privacy Framework

Posted on December 02, 2010
The FTC reported yesterday its endorsement of a "Do Not Track" mechanism to provide consumers with a means to avoid the collection of browser data regarding online product and service browsing.  Such data is often used for online targeted ads.    In examining the need for a new framework, the FTC cited slow progress in online industry self-regulation...

Facebook User Ban Vindicated

Posted on November 07, 2010
A California district judge recently upheld a user ban by Facebook against a user who violated facebook rules by friending people she did not know.  She was engaged in some outspoken commentary supportive of President Obama and increased her activity on Facebook in response to harrassment from other Facebook users...

Another Landmine for Licensees

Posted on November 07, 2010
At a time when a sideways economy seemingly coincides with a rise in software compliance audits, licensees have another reason to carefully review their software use.  In  The Compliance Source, Inc. v. GreenPoint Mortgage Funding, Inc. ((2010 WL 4056112, No...

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Case highlights disagreement over interpretation of Wiretap Act

Posted on September 24, 2010
The 7th Circuit recently ruled on a wiretap case involving an employee who set up an Outlook auto forward rule to intercept email communications from his boss. US v. Szymuszkewicz (7th Circuit, 2010).  The Court correctly ruled that this sort of email interception violated the Wiretap Act...

Court rejects Facebook discrimination claim.

Posted on September 24, 2010
Evan Brown reportson an interesting discrimination claim involving Facebook.   In Jabbar v Travel Services, Inc., 2010 WL 3563112, (D. Puerto Rico, September 10, 2010) the court granted summary judgment in favor of the defendant in a client case involving a hostile workplace claim...

Software's Last Sale

Posted on September 16, 2010
It seems like the first-sale doctrine doesn't get a ton of use in the software area.  The market for hand-me-down software is inherently limited.  Undoubtedly, however, there are those who take full advantage of the doctrine and the ability to transfer a specific copy of a copyrighted work after its first sale...

Oracle tries to topple the Android

Posted on August 13, 2010
2010's version of the Blackberry patent troll scare just hit the courts this week.  Oracle filed a lawsuit against Google alleging infringement by the Android operating system of Java patents and copyrights.  This time, the stakes are a little different...

Google Leverage Clear in New Adwords Suit

Posted on August 11, 2010
Cnet recently reported a new case against Ascentive, the company that provides computer support applications under the slogan "Finally Fast."  The case is interesting not because another company steps in the long line of trademark holders upset with Google's adword policies...

Could the Education Crisis in the US be Killing Creativity, Innovation, and the US Role in Tech?

Posted on July 31, 2010
I ran across three related news stories this week loosely tied to this common theme.  The first is this article in Computerworld which posits that China's relentless focus on science and technology could ultimately lead to it becoming the world leader in technology...

Risk of Credit Fraud Not Sufficient for Standing

Posted on July 29, 2010
Veronica Jackson at the Consumer Finance Law Blog reports on the recent case of Hammond v. The Bank of New York Mellon Corp., No. 08-6060, 2010 WL 2643307 (S.D.N.Y. June 25, 2010).  In Hammond, the Southern District of New York held that plaintiffs who sue based on a potential risk of identity theft, instead of actual identity theft and demonstrated damages, lack standing to sue...

Anonymity Shield Lowered by 9th Circuit for Commercial Speech

Posted on July 20, 2010
The 9th circuit held recently that a lower standard would apply for releasing the name of an anonymous internet poster.  The Cahill standard of requiring enough facts to prove a hypothetical summary judgmentnt motion was found to be too stringent for commercial speech...

Will Twitter Security Woes Impact Facebook

Posted on July 20, 2010
After a recent high profile settlement by the FTC against Twitter for security lapses, we expected to see a wave of panic in websites that might have potential security holes or expose "private" postings through the failure to properly handle web crawlers and other mechanisms that peek under the home page...

Supreme Court declines to answer the fun question on text messaging

Posted on June 25, 2010
In the recent Supreme Court decision Ontario v. Quon,the court held that the government's search of text messages on government owned pager equipment did not violate the 4th Amendment or privacy rights of a police officer.  No surprise there...

Nimmer on Open Source

Posted on June 13, 2010
Raymond Nimmer recently posted a good short summaryof the differences between open source licenses and commercial licenses.  Some of his points make great sense in the practical world of dealing with open source in the context of software licensing transactions...

Tapping in to anonymous posters

Posted on June 13, 2010
Evan Brown recently reported about the Zynga case, an attempt to gather information about potential infringers of the Mafia Wars trademark.   Although there is certainly some merit to limiting overly broad discovery requests, seems natural that the free speech concerns about protecting anonymity on the internet for discussion sites does not apply in the context of a commercial game...

Social Media Marketing: Legal and Practical Issues for the Small Business

Posted on May 13, 2010
The advent of social media Web sites like Facebook, Twitter, YouTube and LinkedIn provides the opportunity for authentic interaction and engagement with customers. Accordingly, it is no surprise that these Web sites and others are now being used as marketing tools by companies large and small to help them achieve their strategic goals...

Comparison of Most Popular Open Source Licenses

Posted on April 15, 2010
Protectcode has published a handy comparison chart showing the basic differences between the six most popular open source licenses being used today.  Those licenses are: GNU General Public License (GPL) 2.0 GNU General Public License (GPL) 3.0 GNU Lesser General Public License (LGPL) 2...

BrowseWrap Agreements Enforceable

Posted on March 26, 2010
The recent Missouri Court of Appeals case of Major v. McCallisterheld that the browse-wrap agreement (which was presented to the user at every page, and presented again when submitting the information to complete the purchase) was enforceable where the purchaser was given notice that by clicking through, she agreed to the terms and conditions...

Microsoft's Unprecedented Assualt on the Botnet

Posted on March 04, 2010
Last week Microsoft launched a successful, but complicated and multifaceted assault on the botnet known as Waldec.  The manuever invovled simultaneously shutting down 277 internet domains responsible for sending up to 1.5 billion spam emails a day...

FCC Shuns ISP's to Embrace Net Neutrality

Posted on October 23, 2009
A little over two plus years after the FTC took a pass on jumping into the net neutrality battle, the FCC has decided to carry the net neutrality banner.  The Wall Street Journal reported that the FCC is proposing new rules embracing equal treatment for all types of internet content...

Peeking Behind the Google Shield

Posted on August 21, 2009
Criticism of a Vogue magazine cover model isn't exactly ground breaking legal news.  A judge ruling requiring Google to turn over the name of the defaming blogger may be.  ABC News reports that the New York State Supreme Court did not buy a blogger's argument that the Internet is a place for ranting, notwithstanding the facts...

Posner Proposal to Save Newspapers: Prohibit Linking/Paraphrasing

Posted on July 23, 2009
Judge Richard Posner of the U.S.Court of Appeals for the Seventh Circuit (and renown legal scholar and blogger) has recently proposed a solution to the decline of newspapers in the U.S. - change the law (specifically copyright law) to prohibit linking, copying small parts of news articles, and paraphrasing online...

Google, Copyrights and Trademarks - An Update

Posted on July 16, 2009
Over the years, Google has received countless complaints regarding unauthorized use of images. Earlier this month, Google implemented a feature on its Image Search tool that allows users to filter images by usage rights. Users can use this tool to find images that are available for Internet use and in some cases adaption...

Another EU - US Privacy Gap - IP Addresses Not PII

Posted on July 07, 2009
A Seattle Judge recently ruled in a class action suit against Microsoft that IP Addresses do not constitute Personal Identifiable Information (PII) for purposes of interpreting restrictions in a user agreement.  The ruling, recently reported by Online Media Daily,  runs counter to decisions and interpretations in both the EU and New Jersey...

Act Fast to Protect Your Trademarks on Facebook

Posted on June 11, 2009
Facebook, the social networking website, will begin allowing vanity URL's this weekend, inviting yet another opportunity for opportunistic domainers to nab your trademarks.Specifically, Facebook has announced that beginning on June 13, 2009, at 12:01 a...

Sotomayor's Record on IP and Technology Issues

Posted on June 05, 2009
President Obama recently announced that he intends to nominate Judge Sonia Sotomayor to be a Justice of the U.S. Supreme Court, filling the seat vacated by Justice David Souter. If appointed, she could have a very significant impact on IP and technology issues...

New PWC Patent Litigation Survey Shows Trial Success Rate Highest Ever

Posted on April 29, 2009
A link to the PWC report is here.  Summary of relevant findings: median damage award has remained steady over the years when adjusted for inflation. Significant difference in success rates and size of awards between bench trials and jury cases is driving more jury trials...

Second Circuit Breathes New Life Into Trademarks Holders' Claims Against Google's Adwords

Posted on April 14, 2009
In 2006, the Second Circuit ruled in a case called 1-800 Contacts v. WhenU, that an adware program that detected visits to corporate web sites via their URLs, and triggered competitor's ads in a separate popup window, did not make any "use in commerce" of the trademarks embodied in those URL's, and that therefore the conduct was not actionable under the Lanham Act...

To Link or Not To Link?

Posted on April 02, 2009
Earlier this year, Tim referred to the Jones Day/Blockshopper trademark dispute.  I have been invited to expound on this topic.   Last year, a fledgling real estate news site called BlockShopper started publishing information about the home purchases of lawyers from the New York law firm Jones Day...

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