That's some highfalutin' lawyer talk, right there. That's what that is.

In case you missed it, the Supreme Court has not only denied Sigram Schindler's petition for cert in its appeal from the USPTO (you can read the petition here); it's considering sanctions against the attorney who filed the petition.

Here's the question presented:

“Does the US Constitution, in legal decisions based on 35 USC §§ 101/102/103/112,

• require instantly avoiding the inevitable legal errors in construing incomplete and vague classical claim constructions – especially for “emerging technology claim(ed invention)s, ET CIs” – by construing for them the complete/concise refined claim constructions of the Supreme Court’s KSR/Bilski/Mayo/Myriad/Biosig/Alice line of unanimous precedents framework,

or does the US Constitution for such decisions

• entitle any public institution to refrain, for ET CIs, for a time it feels feasible, from proceeding as these Supreme Court precedents require – or meeting its requirements just by some lip-service – and in the meantime to construe incomplete classical claim constructions, notwithstanding their implied legal errors?

Wow.

Did not see that coming (Troll edition)

The US District Court for the District of Nebraska has ruled (decision here) that the state of Nebraska must pay $725,000 in fees and costs to NPE "MPHJ Technology Investment LLC" after the state AG sent cease and desist orders to MPHJ pursuant to a suit filed under the state's anti-patent-trolling statute.  According to the Court, the state "violated 42 USC 1983 and the First, Fifth, and Fourteenth Amendments to the U.S. Constitutuion."

Ouch.

Lies, damn lies, and statistics

From the FY 2014 USPTO Annual Report (link here):  

Average patent pendency is down (to almost 2 1/2 years), but average time to first OA is flat (at about 1 1/2 years).

The backlog of unexamined applications stands at over 605,000, which is down almost 20% (!) from 2009.

Maintenance fees account for over 45% of FY 2014 patent revenue.

Total patent fee collections in FY 2014: $2.9B.

Congressional Hearings on USPTO Telework: Farce or Travesty?

A joint hearing held by the House Oversight and Government Reform Committee and the House Judiciary Committee heard testimony this week regarding telework at the USPTO (story here).

I have no doubt that some examiners are gaming the system.  It has always been thus.  

That said, here's an interesting fact:  in 2013, House members drew a salary of $174,000. Not bad, considering the median household income in 2013 was right around $52K.  But in 2013 the House was in session for 113 days.  That works out to an annual salary, for a 50-week year of five-day work weeks, of just under $385,000.  

But who knows how much of that time they actually spent on the people's business?  Fact is, nobody is keeping track of the hours that our representatives actually work.  They work for US, the taxpayers. How are we supposed to know if we're getting the work that we're paying for?  And I mean working on the stuff we send them to Washington to do, not working on raising money so they can get re-elected.  They can do that on their own time.  

So I have a suggestion for the House: no more hearings about patent examiners' work habits until representatives are willing to be accountable to us for their own work habits.

Wrigley, WTF?

According to this story in Above the Law, Wrigley (the chewing gum people) is opposing the application of Perfetti (the Mentos people) to register the mark "WTF."  Perfetti, which likes slightly off-center advertising, apparently plans to use "WTF" and the phrase "What The Fresh" to market its minty products.  Wrigley argues that consumers will confuse these marks with its own "Winterfresh" gum.


Yeah.  That's what I think of when I hear "WTF."

What's the Spanish word for "chutzpah?"

"A former executive with Spain's main copyright organization has been sentenced to prison for spending €40,000 ($50,000) in brothels using a corporate credit card, with a judge describing as "nonsense" the man's claims that the visits were work-related."

Full article here

Likelihood of Confusion, Part II

According to this story at Bloomberg.com, Apple is going to call its watch the "Apple Watch" rather than "iWatch" because the European trademark for "iWatch" is owned by Dublin-based Probendi.

According to the story, Probendi plans to market its own smartwatch and call it iWatch.  Now here's the confusing part: the iWatch is going to be an Android watch.  

Pizza flavor not subject to Federal TM protection

Last week, the U.S. District Court for the Southern District of Texas (Galveston) issued a decision (link here) holding that the flavor of pizza is not subject to trademark protection, because (a) it's not distinctive, and (b) it's functional.

As to the second reason: I agree completely. 

As the first: it's Texas pizza.  How can they tell?

Are tweets subject to copyright?

Emma Pauw, "social media writer" at We Talk Social (http://www.wetalksocial.co.uk/) asks the question in a piece in B2C (link here).

Actually, the question she asks is "Can You Copyright a Tweet?"

Under the Berne Convention, copyright vests upon creation. So you don't have to "copyright" anything.  It is, or it isn't.  Now, if you want to enforce your copyright, you may have to register your work with a government agency - in the U.S., the Copyright Office is part of the Library of Congress. If you want to sue for copyright infringement in U.S. District Court, you need to register it with the Copyright Office.  But the registration doesn't "copyright" the work.  

That's not the interesting part. 

Under U.S. law, copyright "subsists ... in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."  17 USC 102(a).

A tweet clearly can be an "original work of authorship."  But it doesn't have to be.  Let's assume that it is. (For a serious discussion of this issue, check out this post from WIPO).

A tweet "can be perceived, reproduced, or otherwise communicated...with the aid of a machine or device."  

The question is:  is a tweet "fixed in [a] tangible medium of expression?"  I say "yes," because if it's possible to copy a tweet, (and it clearly is), then it's "fixed" enough to qualify.  Put another way, I don't know of anything that can be copied exactly, that's not  considered fixed in a tangible medium of expression.  

And of course, if you want to sue somebody for infringing your copyrighted tweet, you have to send it to the Copyright Office, which means that you have to "fix" it so you can submit it. So that's that.

Should you bother?  Probably not.  

In other news, Don Henley is still...not dead

Everybody's talking about Michelle Lee being named as the new USPTO Director. This has to qualify as the Least Surprising Patent-Related News Story of 2014.  So that's all I have to say about that.

Instead, I want to talk about Don Henley.  

Yes, that Don Henley.  Don has sued clothing retailer Duluth Trading Company for trademark infringement (full story here).  They sell, among other things, Henley shirts. 

Like that.  

According to this entry in Wikipedia, the Henley shirt is "so named because this particular style of shirt was the traditional uniform of rowers in the English town of Henley-on-Thames."  Nothing whatsoever to do with the Eagles' drummer.  So why's Don suing?

DTC recently sent out an email ad promoting their Henley shirts with the slogan, "Don a Henley and Take it easy."

Like that.  BTW, check out Henley's hair in that clip.  Amazing.  That, kids, is '70s hair.

Anyway, apparently DTC didn't ask Don's permission before sending out the aforementioned ad.  What is clear is that Don has no sense of humor when it comes to somebody trying to trade in on his mojo.

Speaking of Don Henley's mojo, if you haven't heard Mojo Nixon's "Don Henley Must Die" you can give it a listen here:

And then read this article from the Austin Chronicle about a time more than 20 years ago when Don did have a sense of humor.  

If your patent application has been pending more than three years, should you throw in the towel?

Dennis Crouch posted the following graph at Patently-O:



It shows that for all cases that were filed before 2010, the number of patented cases as a percentage of the total is about 60%, and that the principal change is pending cases going abandoned.  This suggests that if you've got an application that was filed before 2010 and it's still pending, your chances of getting it allowed are slim.  

Likelihood of confusion? Uh, yeah.

According to a blog post by William Breathes on Denver Westword (full story here), candy giant Hershey has settled its trademark infringement case against Colorado cannabis-edibles producer TinctureBelle.

This is the kind of stuff that got Hershey's attention:

Apparently, TinctureBelle changed its packaging fairly dramatically, so, for example, Hashees peanut butter cups now come in a package with this label:

Now, as you know, trademark infringement centers on "likelihood of confusion."  Is the ordinary consumer going to mistake the allegedly infringing product for the real McCoy?  Often, this kind of thing is proved in court by providing results of surveys that show that consumers are confused.

This case raises a number of interesting questions in connection with surveys.  If you're going to prove likelihood of confusion for this kind of product, do you need to survey people who are going to use the product?  Who are, likely, already high?  Does the standard for "likelihood of confusion" change if the consumers in question are already confused, just generally?  How do you normalize for the munchies?

In any event, now that they've settled with Hershey, TinctureBelle only has to worry about Disney.

Primer on software patents for laypeople

Definitely not patentable

VOX (link here) has a decent primer on software patents for the novice.  Not an in-depth analysis by any means, and it does contain a couple of howlers, including my favorite: 

The Federal Circuit has always had a pro-patent bias, and in a series of decisions in the 1990s, it removed all meaningful limits on patenting software.

Yes, that's right, since the '90s (right up to Alice Corp. of course) there were no meaningful limits on patenting software.  None!   No wonder we're in this mess.  

Does Pat Riley Really Own "Three-Peat?"

I just read George Gurley's column (link here) about rampant trademarking of terms everybody uses, and speculating on how he can get rich by trademarking other commonly-used phrases.  I know, dumb.  

But it got me wondering: does Pat Riley really own a U.S. Trademark on the term "three-peat?"  For you non-sports fans out there, the term refers to winning three championships in a row.

Short answer: Yes.  U.S. Trademark Reg. No. 74508157.  

Longer answer: The live registration only covers "collector plates, mugs, and tankards."  Marks covering the use of the term on "non-metal key chains and plaques,"on "shirts, jackets and hats," and on "bed covers, namely, bed linen, bed blankets, bed pads, bed sheets, and bed spreads" are dead.  HOWEVER, Riley also has a live mark on the term "3-peat" (Reg. No. 86285769) covering "Bed Covers, Namely, Bed Linens, Bed Blankets, Bed Pads, Bed Sheets and Bed Spreads, and Towels."

[Typing "bed" over and over again is making me woozy.  Bed bed bed bed bed.]

But back to George Gurley's point:  go ahead, say "three-peat" all you want, you won't owe Pat Riley a penny. 

Darth Vader's Breath Sounds Are Registered at the USPTO

Coolest thing I've read all day (hat tip: Kelsey Campbell-Dollaghan at gizmodo.com  - link to story here).

You can hear the "sound mark" at the USPTO website here.

Are patents the problem?

That's the title of an article by Tamar Haspel appearing in the Washington Post (link here) that looks at the relative merits of patents on living things, particularly plants.

From the title, I expected an anti-patent screed.  What I read was a thoughtful piece that takes a realistic look at the positives and negatives.  Which surprised me.  But don't take my word for it - go read it yourself.

My only real criticism is that the article appears in the Food section, instead of Section A, where it belongs.  

Who owns the copyright on a course syllabus?

An article by George Leef in Forbes (link here) calls out a recent ruling by the Missouri Court of Appeals, upholding a lower state court decision that the University of Missouri need not provide copies of course syllabi under a "sunshine law" request, because such copying would violate the professors' copyright in their syllabi.

The decision (here) analyzes the question of whether syllabi are subject to copyright and, finding that they are, decides that fair use is not applicable because fair use is a defense to a charge of copyright infringement, and not a pre-emptive doctrine to authorize copying before the fact.  Which once again shows that it's better to ask for forgiveness than for permission.

But the part that the Court leaves out is whether the copyright to the syllabi properly lies with the faculty, or with the university.  The university's position is that the syllabi are the property of the faculty, and that it's not authorized to make copies without permission.

Anyone who has dealt with intellectual property issues and major research universities will not be surprised to learn that the University of Missouri has a copyright policy (link here).  Section 100.030.A.1 states, 

1. In conjunction with the University Conflict of Interest Regulations 330.015 and the University Patent Regulations 100.020 as they may be amended from time to time, this policy governs the rights and responsibilities of University employees, students, and of any other persons using University facilities or resources in the creation of original works of authorship subject to protection by copyright law. The faculty will continue to hold copyright for traditionally accepted intellectual property that is developed in their roles as teachers and scholars subject to the provisions of section 2 herein. These include, but are not limited to such materials as books, workbooks, study guides, monographs, articles, and other works including music and performances, whether embodied in print, electronic format, or in other media.

It's that "Section 2" proviso that's the kicker.  Section 2.b provides that "The University will own the copyright in materials that are...created by employees if the production of the materials is a specific responsibility of the position for which the employee is hired."

As a former college professor, I can state with a high degree of confidence that the production of a course syllabus is a "specific responsibility" placed on faculty by the university.  Accordingly, the copyright on the course syllabi is held by the University, not by the faculty.

Why this apparently didn't come up during the case is a complete mystery to me.

Swiss-style? Cheese, OK. Patent claims, not so much.

Not in Switzerland, but very cheesy.

This came up in a case I'm working on today, and I had to remind myself, so I figured I would share.  DISCLAIMER: I'm not a European patent attorney.  If any European patent attorneys read this, and want to correct anything I might have got wrong here, I'd be pleased to hear from them.
  
In the U.S., if you come up with a new treatment that uses an old drug, you can get a patent on a "method of treatment" that's limited to treating the particular disease in question.

European patent law prohibits "method of treatment" claims, because they're considered to incorporate the human body.  So for many years, European practitioners got around this by using something called "Swiss-style" claims.

Swiss-style claims have the form "Use of [product X] in the manufacture of a medicament for treatment of [disease Y]."  

They're apparently called "Swiss-style" because they were first permitted by the Swiss Patent Office, and not because of their cheesy goodness.

However, since 2010, Swiss-style claims have been barred by the EPO (although this rule applied only to new cases filed after the relevant decision of the Enlarged Board of Appeal), which did not claim priority to an earlier-filed case.

Since then, the preferred alternative to the Swiss-style claim has been the "second medical use" claim, which has the format: "[Product X] for use in the treatment of [disease Y]."    It's a "second" medical use claim because Product X is already known for use in treating disease X.  So by that token, if you discover the first therapeutic use of a known compound, and write the claim "Product X for use in the treatment of disease X," that would be a first medical use claim.  Which is also OK in Europe, provided the facts support the claim.

It's just a box of patents, I don't know who put it there...

Reuters is reporting that Germany is considering closing the "patent box" tax loophole (story: here).

This raises the obvious question: what?

Turns out, some countries (notably the UK and the Netherlands) offer corporate tax breaks to companies that commercialize (or, in the case of the UK, "commercialise") patented technology.  Profits on products that incorporate patented technology are subject to a corporate tax rate of 10%, rather than the current 23% (source: here).  Apparently some German companies are taking advantage of these tax breaks to move their operations out of Germany and into a "patent box" jurisdiction.

It's called the "patent" box because it doesn't apply to products covered by trademark or copyright.

I have no idea why it's called a "box."

Happy Together? Not Anymore.

According to this story in Billboard, a California judge has granted summary judgment that Sirius/XM has violated the Turtles' copyrights by broadcasting their songs without permission.

Here's the interesting part:  Sirius/XM has been broadcasting Turtles' songs for seven years without paying, and the Turtles knew about it, but didn't sue or even ask for royalties.  

At this point, I'm thinking "laches."  Laches is an equitable doctrine that bars suit where a plaintiff has "slept on his rights."  Typically, at least in patent cases, laches kicks in after six years.  So if I know that somebody's infringing my patent for six years, and I don't do anything about it, not even a nasty letter, then I'm SOL.

However, the Turtles' case wasn't brought under Federal law, because Federal copyright law doesn't apply to sound recordings made before 1972.  (Copyright law is weird).  So the case was brought under California state law.  And since they're seeking statutory damages for the infringement, the case is being brought in law, not in equity.  The result?  Laches doesn't apply.  Here's the relevant passage from the decision.

Sirius XM reasons that Flo & Eddie [the owners of the Turtles catalog] and Sirius XM have been "happy together" for years without any licensing or royalty arrangements, and Flo & Eddie cannot disrupt this practice that Sirius XM has built its "oldies" business around after Flo & Eddie had allowed it for so long.  ...It is undisputed that Flo & Eddie has been aware of Sirius XM's public performance of its sound recordings for over seven years and has never demanded payment or sued Sirius XM regarding the performances prior to this lawsuit. ...However, "the laches defense is unavailable in an action at law for damages 'even [if] combined with the cumulative remedy of declaratory relief.'"  ...This case is, in part, an action at law for damages...; therefore, before reaching the issue of prejudice, the laches defense fails because it is unavailable to Sirius XM in this action.

Slip op. at 15; cites omitted. 

Did not see that coming.

This is the kind of thing that makes people angry, but they shouldn't be.

According to this story in the Hollywood Reporter, the organizers of the "Rocky 50K Fat Ass Run" have knuckled under to a threat of trademark suit from MGM and will rename their event, a race which is to roughly track Sylvester Stallone's route from "Rocky."  This article from the Philadelphia Enquirer details a reporter's efforts to figure out the "actual" route that Rocky ran in the movie, which involved a fair amount of creative filling in between scenes.  My favorite line from the article: "Nothing is more South Philly than a flaming barrel."

Now, here's the thing.  The average person reading the article about MGM squelching this cool event is going to react negatively.  Because MGM comes across like a bunch of assholes pissing on what sounds like a harmless, fun event.  But it seems pretty clear to me that the organizers screwed up by not asking permission in the first place. I bet if they had gone to MGM, and linked the run up to some worthy charity, they could have gotten a freaking sponsorship from MGM.  They might have had to drop the "fat ass" from the name of the race, which would be a loss, I grant.  But still.

Wash. Post: Rep. Wolf Asks Justice Dept. to Open Investigation into USPTO Timekeeping

According to this story in Wednesday's Washington Post, Rep. Frank Wolf (R, VA) is asking the Justice Department to open an investigation into allegations that patent examiners at the USPTO are "cheating" taxpayers by claiming to have worked hours that they did not actually work.

Frank Wolf (R, VA)

Although he represents a substantial chunk of Northern Virginia, Rep. Wolf's district does not include the USPTO, or the neighborhoods in Alexandria where most of the examiners that are based in the "home office" live.

According to the Post, 

In recent years, the patent office has addressed the vast majority of time and attendance fraud by requiring cheaters to go into counseling and occasionally suspending them, according to officials at the agency with knowledge of its employee-relations practices.

Really - "the vast majority?"  "Vast?"  How often has this happened in "recent years?"  This language certainly seems to suggest that "time and attendance fraud" is rampant at the USPTO.  And that the USPTO knows about it, as they apparently have a counseling program set up to deal with offenders.  And if, as the article suggests, this sort of thing happens all the time, shouldn't Rep. Wolf be discussing this with the USPTO, rather than the US Attorney's Office?

Thanks, Washington Post, for clearing all that up.  Sheesh.  

Creative Use of Trademark

According to a story at BET.com (link), Aussie rapper Iggy Azalea (pictured below) is trying to block release of a video that purportedly features her engaged in "relations" with rapper Jefe Wine.

Iggy

Her attorneys are apparently arguing that because "Iggy Azalea" is a registered trademark in the US, release of the video without her permission is a trademark violation.

Sure enough, she has a US registration for the "Iggy Azalea" mark (link to record in TESS).

Here's the part I don't get:  how does she get her application allowed?  Because Iggy Pop.

Original Iggy

Iggy Pop (hereinafter "Original Iggy") also has registered trademarks in the U.S. protecting his moniker (link to records in TESS).  And Original Iggy's marks are considerably senior.  As you would expect.

Likelihood of confusion?  Certainly not based on appearance. But the marks are word marks, not based on how the Iggys (Iggies?) look.  

Remember, trademarks are supposed to protect consumers.  God help you if you go to download a song from one Iggy and get a song from the other.  Because I'm guessing the respective fanbases overlap not at all.  But don't take my word for it.  Check it out below, and decide for yourself.

I think I see the problem here

An article in today's Washington Post (full article here) contains a link to the original "whistleblower" reports of examiners slacking off at the USPTO.  

One of the whistleblowers, a disgruntled SPE, is quoted as saying,

“As a government employee, I can no longer sit by and watch this problem get any worse,” the supervisor’s complaint continued. “We have lost sight that we are a government agency who works for the taxpayers. We are not accountable to the taxpayers.”

 To which I respond:  EXACTLY.

The USPTO isn't accountable to the taxpayers.  Because the taxpayers don't support the USPTO.  The USPTO runs on fees paid by patent applicants.

Let me repeat that, just so there's no misunderstanding.

TAXPAYERS DON'T SUPPORT THE USPTO.  THE EXAMINER'S SALARIES ARE PAID BY PATENT APPLICANTS.

Maybe, just maybe, if examiners had an understanding of who's really paying their salaries, patent examination would improve.

Next week, I'll address the question of whether it makes any sense to have examiners track their time, when they're on a production quota.  

Federal Circuit: What Does "Unobtrusive" Mean? We Can't Tell.

Yesterday, in its decision in Interval Licensing LLC v AOL, Inc. et al. (full text here) the Federal Circuit upheld a ruling by the US District Court for the Western District of Washington holding Interval's claims invalid as indefinite.

Here's a claim that the Court described as "representative:"

A method for engaging the peripheral attention of a person in the vicinity of a display device, comprising the steps of

providing one or more sets of content data to a content display system associated with the display device and located entirely in the same physical location as the display device; 

providing to the content display system a set of instructions for enabling the content display system to selectively display, in an unobtrusive manner that does not distract a user of the display device or an apparatus associated with the display device from a primary interaction with the display device or apparatus, an image or images generated from a set of content data; and

auditing the display of sets of content data by the content display system;

wherein the one or more sets of content data are selected from a plurality of sets of content data, each set being provided by an associated content provider, wherein each associated content provider is located in a different physical location than at least one other content provider and each content provider provides its content data to the content display system independently of each other content provider and without the content data being aggregated at a common physical location remote from the content display system prior to being provided to the content display system, and wherein for each set the respective content provider may provide scheduling instructions tailored to the set of content data to control at least one of the duration, sequencing, and timing of the display of said image or images generated from the set of content data.

Yikes.

The Court focused on the highlighted limitation above, and particularly on the "unobtrusive" language.  Money quote:

We recognize that a patent which defines a claim phrase through examples may satisfy the definiteness requirement.  In this case, however, we decline to cull out a single "e.g." phrase from a lengthy written description to serve as the exclusive definition of a facially subjective claim term.

slip op. at 17-18; cites omitted.

Now, normally I would say that the USPTO must have had some understanding of what the term meant to allow the claim.  But in this instance, as the Court points out, at least three different interpretations of "unobtrusive" were adopted at different times by the patent Examiner, the applicants, and the Board.

 

What Does the USPTO Know About Patent Litigation?

It's been widely understood for many among practitioners that the USPTO doesn't care about your patent litigation problems.  Once the patent is out the door, they don't have anything to do with it, unless it shows back up on a reissue, reexam, or inter partes review, where it will be treated like an unemployed child who has moved out of her parents' house but keeps dropping off her laundry.  Yeah, they'll take it back, because they feel like they have to, but they won't enjoy it.

But now, the USPTO is offering free advice on patent litigation issues on their website, that they're calling the "Online Toolkit."  

Been Sued or Gotten a Demand Letter?
Answers To Common Questions About Abusive Patent Litigation

Received a letter about or been sued over a patent? You’re in the right place. See below for answers to common questions:

See the topics below for answers to common questions:

In June 2013, President Obama ordered the creation of this website to empower those who have received a demand letter or may be threatened with a patent lawsuit with information about their options. In response, the USPTO has created this site.

The information presented on this site does not constitute legal advice. It should not be considered to replace advice from an attorney. Reference to any specific organizations, attorneys, law firms, corporations, or websites does not constitute endorsement, recommendation, or favoring by the USPTO.

We welcome your comments and suggestions in the box below.

For more information about abusive demand letters see the following links, White House Fact Sheet and National Economic Council and the Council of Economic Advisers report “PATENT ASSERTION AND U.S. INNOVATION”

Comes off a bit too "Lionel Hutz" for my taste.  

Next week, the USPTO is offering a FREE webinar about the Online Toolkit that "will showcase topics such as:

• what are my options for responding to the suit?
• How can I tell whether or not I'm infringing?
• How do I find a lawyer?
• How can I challenge a patent or patent application?

Here's the info, in case you're interested.  If I tune in, I will report back with my findings.

WEBINAR ACCESS INFORMATION:

Video: https://uspto-events2.webex.com/uspto-events2/onstage/g.php?t=a&d=641836089

Dial In: 1-571-270-7000

Event number/meeting ID: 641 836 089

Event password: 12345

Federal Circuit Applys Alice Analysis, Holds Claim Invalid Under 101

Last week, in its decision in Buysafe v Google (decision here) the Federal Circuit applied the Alice Corp. analysis prescribed by the US Supreme Court to hold patent claims invalid under 35 USC 101.

Here's the main claim:

1. A method, comprising:

receiving, by at least one computer application program running on a computer of a safe transaction service provider, a request from a first party for obtaining a transaction performance guaranty service with respect to an online commercial transaction following closing of the online commercial transaction;

processing, by at least one computer application program running on the safe transaction service provider computer, the request by underwriting the first party in order to provide the transaction performance guaranty service to the first part,

wherein the computer of the safe transaction service provider offers,  via a computer network, the transaction performance guaranty service that binds a transaction performance guaranty to the online commercial transaction involving the first party to guarantee the performance of the first party following closing of the online commercial transaction.

So, yeah.  

Patent Troll Case Going Forward in Vermont State Court

Via the Brattleboro Reformer (story here), patent aggregation entity MPHJ Technology Investments has lost what appears to be its final procedural effort to get out of Vermont state court.  

MPHJ is the defendant in a suit brought by the Vermont Attorney General in response to MPHJ's demand letters sent to "numerous" Vermont businesses.  MPHJ is trying to license its patent, described as covering "the process of emailing scanned documents."  

Apparently, the Vermont judge was not impressed by MPHJ's complaint that it would be burdensome to defend the case in Vermont, in view of their own demand letters, which threatened litigation in Vermont.

So, yeah.  That's pretty much a loser right there.

Eastern District of Texas Not So Patent-Friendly

An article in today's Houston Chronicle (link here) suggests that, while patent lawsuits are being filed in the ED Texas in ever-increasing numbers, that trend may be changing soon.

Money quote:

... a new nationwide study of 36,000 completed patent cases filed between 2000 and 2013 found that plaintiffs in East Texas lose just as often as they win, according to Lex Machina, a Menlo Park, Calif.-based supplier of legal data. 

The Lex Machina study found that plaintiffs won their cases through summary judgment, a bench trial or a jury verdict 2.43 percent of the time, while defendants won 2.45 percent. The remaining 95 percent were either settled or dismissed. The median compensatory damage award by East Texas judges and juries in patent cases was $8.25 million, compared to $6.9 million for patent in Delaware, which is considered a pro-business judicial district. 

"Juries in the Eastern District were said to be awarding higher damages than juries in other jurisdictions, something that will obviously attract new plaintiffs," says Adam Sanderson, a Dallas-based partner at Reese Gordon Marketos in Dallas. "Although there are some recent indications that things may be evening out somewhat, reputations often endure even after the facts on the ground have changed."

Trademark or Trade Dress?

Hershey has provided us with an easy example that you can use if you want to explain the difference between trademark and trade dress (original story in Confectionery News here).

Hershey is suing LBB Imports in US District Court in Pennsylvania for trademark and trade dress infringement.  

The trademark claims include a charge that LBB is importing KitKat bars into the U.S..  Hershey uses the KitKat mark in the U.S. under license from Nestle, who produces KitKats in Europe.  LBB is accused of importing European KitKats into the U.S.; in the picture below, the Hershey KitKat is on the left.

Hershey is also accusing LBB of infringing its trade dress for Reese's Peanut Butter Cups with RBB's Toffee Crisp candy bars.

You can see the elements of trade dress here:  the yellow lettering with the brown outline on the orange wrapper.  

OK, now I'm hungry again.

I have your sanity

I have to admit, I was somewhat skeptical when I found out that the Electronic Frontier Foundation (website) is featuring a Stupid Patent of the Month.

Then I saw this month's Stupid Patent, and I have to admit to being amazed.  And impressed.  And a little depressed.  Admittedly this case was prosecuted pro se.  But still.  

The patent in question is 8,609,158, which issued on December 17 of last year, from an application that was filed in June of 2012.  It's got one claim:

1. A method of treating a human suffering from cancer, pain, and Bipolar disorder consisting essentially of administering to said human therapeutically effective amounts of evening primrose oil, rice, sesame seeds, green beans, coffee, meat, cheese, milk, green tea extract, evening primrose seeds, and wine.

Seriously.  Here's a little excerpt from the Detailed Description section of the spec, for your reading enjoyment.

Go straight to Exhibit G (my favorite best method cooked versions) and make it immediately. Take it in cups or ¾^th cups large doses with hot milk (and oil as directed) in the morning and afternoon for days then taper it off until you get to a lower dose. Drink 2 cups of coffee. In the late morning I drink ½ cup of coffee and ½ cup of milk or green tea. Make this a daily medicine. You must acclimate this food/medicine in your body and keep it in you daily. It is an easy, in your kitchen food, that will help you in 1-10 days and it will help eliminate any hospital trip. After 2-4 weeks, slowly reduce the quantity gradually and lower the medication to a tablespoon per day as directed, you will see the medication effect. You must eat cups at first for many, many days. You must have your body acclimated on this drug. I have you my friend. I have your sanity. If you want, add one glass of red wine or 4 little fruit figs or fruits or dates, a little meat and watch this medicine be better. For a good recipe, drink ½ cup of evaporated milk before bedtime. (For regular medicinal benefits: Do not eat a lot of green plants/seeds on this medicine. Stay away from excess greens if you are not balanced in your foods.) It pushes out your medicine and causes a detoxification. I eat green plants, but I hate my medicine balance right after that or many hours later. It takes a day to rebalance. It is not worth the psychosis or little pains that pop through. (It should be noted that I eat sushi and seaweed is on the rice and I eat soy beans. This is balanced by the rice and green tea and the meat or fish.)

New Illinois Anti-Troll Law

Per this story in Crain's Chicago Business, Illinois has joined the list of states that has created a state cause of action for patent trolling. The summary:

The bill by Sen. Daniel Biss, D-Evanston, specifically makes it a violation of civil law to demand a royalty payment from a company if the demander doesn't hold or represent the patent holder itself, or if the patent has been overturned in court or expired. It also will be illegal to use any written communication, including emails, to falsely accuse someone of a patent violation with the intent of forcing a settlement. 

This raises a question - is an exclusive licensee a "patent holder?"  You can't tell from the article, but if you look at the text of the statute (here), it doesn't say "patent holder."  It says that the person asserting the patent must either be (or represent) "a person with the current right to license the patent [] or enforce the patent." 

So that's OK then.  

And now, since it's in Illinois, and there's a bridge (under which a troll might be hiding):