I'm Shocked. SHOCKED!!!

The Commerce Department's Office of the Inspector General has released a report detailing the results of its investigation into extensive goldbricking practices by paralegals at the Patent Trial and Appeal Board.

Apparently, the Board hired a raft of paralegals a couple of years back, as part of a plan to expand the staffing at the Board.  Unfortunately, before they could hire the Administrative Patent Judges that would be handing out work to those new paralegals, the Federal Government instituted a hiring freeze.  As a result, these new paralegals didn't have much to do.  But since they're Federal Government employees, they have to account for their time, which they reported under a "miscellaneous" heading.  

They then spent that time doing laundry, gardening, watching TV, whatever.  

I'm not going to defend paying government employees to not work.  Nevertheless, I think it's important to bear a couple of things in mind in connection with this story.  

First, the USPTO is entirely funded by user fees.  So no taxpayer dollars were wasted here.  Patent applicant dollars were wasted.  

Second, if the USPTO had received permission from the government to spend their own money, as they've asked to do for EVER, the APJs that would have been giving work to these paralegals would have been hired at the same time, and this whole thing never would have happened.  At least not on this scale.

I don't blame the paralegals.  Apparently they tried to get work, but the work just wasn't there.  Maybe they should have been laid off, but anyone who has ever dealt with any government agency knows that cutting anything is seen as an admission that you don't need as big a budget, which will result in cuts next appropriations time.  This is not a USPTO problem; it's a government budgeting problem.

This guy is suing American Eagle Outfitters for copyright infringement

He's a street artist in Miami.  That's him in front of one of his works, which apparently has been appropriated by American Eagle Outfitters (story here).

His name is Aholsniffsglue.

And that's all I have to say about that.

UPDATE:

Aholsniffsglue (real name David Anasagasti) has agreed to settle his copyright infringement case against American Eagle (story here). Terms of the agreement are confidential.  Care to bet on whether glue is involved?  And paper bags.  Lots of paper bags.

It's where the money is.

An article by John Council posted Monday in Texas Lawyer reports that, over the last 14 years, courts in the Eastern District of Texas have handed out more than $5B in compensatory damages awards in patent suits.  That's more than any other jurisdiction, and more than four times the next closest jurisdiction.

That's not especially surprising, given the number of patent cases filed in ED Texas, and their patent-friendly reputation.

What surprised me is that the next closest jurisdiction is the Western District of Pennsylvania.  Even more surprising, the Western District handed out more than $1B in compensatory damages over the same period, but that amount was given out in seven cases. 

Seven.  Works out to almost $180M per case.

The ED Texas handed out more in aggregate, but that amount covers 84 cases.  That means that, per case, the Western District of Pennsylvania handed out more than three times as much  in compensatory damages awards as the Eastern District of Texas.

Brave Heart, Aching Head

WE'LL FIGURE IT OUT LATER!!!

As a descendant of a Scottish immigrant, I've been following the ongoing campaign for Scottish independence with some interest.

Today, Scottish Patent Attorney Peter Arrowsmith has a guest post over at Patently-O in which he explores the potential impact of Scottish independence on IP rights in an independent Scotland.  

I've read it through twice.  It seems pretty clear that nobody on the Yes Scotland (independence) side has thought this through in any detail.  Thinking about the potential complications makes my head hurt.  

So I'm not going to think about it, at least for now.  Maybe they'll vote to stay part of the UK, and then I won't have to think about it at all.

You're doin' fine, Oklahoma! Just don't send any patent demand letters!

OK!

You can add Oklahoma to the list of states that have anti-troll legislation on the books.

According to a story in NewsOK, the law, which goes into effect November 1, prohibits sending patent demand letters in bad faith, requiring the patentholder to conduct due diligence before sending a letter accusing a party of patent infringement.  Suits may be brought by the state attorney general or by private plaintiffs, who may seek damages, costs, attorneys' fees, and punitive damages of up to $50K, or treble the total damages, costs and fees, whichever is greater.

Ah, screw it.  Here's that Wolverine guy singing the song.  

Anti-trolling bill goes into effect in Georgia

Wait...Cherokee Rose?  Is that some kind of slur?

According to a story in the Washington Examiner, the Georgia law is modeled after a similar statute in Vermont.

Key provisions:

• Patent demand letters must include "“factual allegations concerning the specific areas in which the target’s products, services and technology infringe the patent or are covered by the claims in the patent.”
• Prior to sending a demand letter, the patentholder must conduct due diligence that appears to be comparable to that required for filing a complaint asserting patent infringement in Federal Court.
• Creates a cause of action under Georgia's Fair Business Practices Act.  Available relief includes "restitution, punitive damages in an amount of $50,000 or three times the combined total of damages, costs and fees, whichever is greater; expenses of litigation, including reasonable attorneys’ fees; and any other relief that a court deems just."
• If a plaintiff convinces a court that there's a "reasonable likelihood" that the patentholder didn't conduct the required "pre-letter investigation," it can require the patentholder to post a bond not to exceed $250,000 to cover the cost of litigation.

Trolls go mainstream

According to a story at CNN, Marathon Patent Group LLC, which styles itself as a "patent acquisition and monetization company," has announced that it's going to be listed on the NASDAQ.

And now, in further cheer-related trademark news...

According to ESPN's Darren Rovell, San Diego State University has apparently filed a request with the USPTO to register the "I Believe That We Will Win" cheer as a trademark.

Only one problem:  the cheer has been used by others for years - for example, a Navy midshipman selling t-shirts with the cheer at least as early as 2003.

We will see if anybody opposes registration.

Chicago Cubs Send Cease-And-Desist Letter to Man In Bear Suit

Cubs GM Theo Epstein posing with Billy Cub

According to NBC's Chicago affiliate, MLB and the Cubs are demanding that John Paul Weir, who hangs around outside Wrigley Field before games posing for pictures with fans, cut it out immediately.  

You can see the full story here.

Has your pig wandered off? Be careful how you call it, if you don't want to pay a royalty.

According to a recent story in Arkansas Online, the website of the Arkansas Democrat-Gazette, the USPTO has granted the University of Arkansas' request to register its "Hog Call" cheer as a trademark.

You can hear the cheer here.  If you're in the office, make sure your speakers aren't turned up too high.  Unless your office is in Little Rock or Fayetteville, in which case, crank it up.

This whole "copyright" thing is getting out of hand

According to NBC News, the estate of Sir Arthur Conan Doyle is trying to take its fight over the copyright on the characters of Sherlock Holmes to the U.S. Supreme Court.

The issue is when the famous detective and his sidekick Dr. Watson enter the public domain.  If the term of the copyright counts from the date of publication of the first Sherlock Holmes story, then Holmes and Watson are in the public domain, and others are free to write new Holmes stories without paying royalties to the estate of Conan Doyle, who died in 1930.

This is the position favored by the Court of Appeals for the Seventh Circuit, which decided on June 16 in a decision authored by Judge Posner that only the details in the final ten Holmes stories are still protected.   

The petitioners argue that the term runs from the date of the last Holmes story published by Conan Doyle, and thus the copyright on the character is still in force.

I am so not getting on this plane

Fig. 1 

In case you missed it, this is Fig. 1 from US Patent Application Publication 2014/0159444, "Seating device comprising a forward-foldable backrest."

It's assigned to Airbus.  You've probably seen it - it's been making the rounds this week.  And you're thinking, "no way they ever put this in an actual plane.  Even airlines are not that sadistic and stupid.

But then there's this actual mock-up from 2011, courtesy of the Daily Mail:

Yeah, that's MUCH better.  You can really relax in these seats.  See how happy the model is?  

Actually, if you look closely, I think her expression is more like "You have got to be kidding me."

BTW, the pitch on the seats in that mock-up is apparently 23 inches. Now imagine you're sitting in that seat, and the guy in the seat in front of you reclines his seatback.   Nice, right?

There are only two virtues of this seat for the passenger: (1) there's no room for a tray table, so they can't inflict an airline meal on you; and (2) there's no place to set up your laptop, so you can't even pretend to work on the flight. 

Update: Terry and the Pirates

See updated post below.

USPTO seeks comments on patent application pendency

Seriously.  They'd like your thoughts on the following important questions:

1. Are the current targets of ten month average first action patent pendency and twenty month average total patent pendency the right agency strategic targets for the USPTO, stakeholders, and the public at large? If not, what are the appropriate average first action patent pendency and average total patent pendency targets, and what is the supporting rationale for different targets?

2. ... Should the USPTO have first action pendency and total pendency targets be met by nearly all applications (e.g., 90 or 95 percent of applications meeting the pendency target) rather than an average first action pendency and total pendency targets? If so, what should the percentage be and why?

3. Should the USPTO consider more technology level patent pendency targets, for example, at the Technology Center level? If so, should all the Technology Centers have the same target? If not, please explain why Technology Centers should have different pendency target levels and how they should be determined?

4. The American Inventors Protection Act (AIPA) provides for patent term adjustment for certain examination delays. ...Should the USPTO consider using a first action pendency target tied to minimizing the number of applications in which a first action is not mailed within fourteen months? ...Should the USPTO also consider using some of the other [Patent Term adjustment]-specific timeframes for their optimal pendency targets?  [IOW, since we've set up this system to rate our performance for purposes of patent term adjustments, should we be using those times, as opposed to some totally different set of times, just because?]

5. ...a USPTO policy to encourage completing first office actions too soon after the filing date of an application does not allow for the publication of all pertinent patent prior art and for the appropriate window for third party prior art submissions. Would the benefits of a prompt first Office action outweigh potential concerns of the Office action being issued too quickly? [when has this ever happened?]

6. [Comment on the following:]  

a. Some potentially significant case law decisions are pending which may impact large categories of inventions and possibly lead to reduced patent filings.

b. It has been just over one year since patent fees were adjusted. ...User practices and business decisions based on the adjusted fee levels may not have stabilized yet.

c. There is a lot of activity in the global IP arena which may impact patent filing activity and IP practices in the United States.

7. What other metrics should the USPTO consider utilizing to measure pendency or timeliness throughout the examination process?

Send your comments to patent_pendency2014@uspto.gov.

USPTO Director Update: Johnson Trial Balloon Falls Flat

The Hill is reporting that the White House is backing away from its proposal to nominate Philip Johnson, the IP head at Johnson & Johnson, to be Director of the USPTO, after complaints from pro-"patent reform" senators, including Sen. Schumer (D-NY) and Sen. Cornyn (R-TX).  

Next USPTO Director: Philip Johnson?

There's a rumor going around that Philip Johnson, Chief IP Counsel for Johnson & Johnson, has the inside track to be the next Director of the USPTO (hat tip: Hal Wegner).

From an IP lawyer's point of view, Johnson looks to be a good pick.  He stands to follow in the footsteps of previous Director Kappos, although Johnson will likely bring a different set of sensibilities, coming as he does out of pharma rather than high tech.

However, rumors of Johnson's impending nomination has the folks at the Electronic Frontier Foundation all bunched up, because Johnson & Johnson, Johnson's (soon-to-be) former employer, is a member of the Coalition for 21st Century Patent Reform, a group that is justifiably skeptical about the recent patent "reform" legislation that was lurking around the halls of Congress for much of this session.

Judge Diane Wood Thinks We Would be Better Off if the Federal Circuit Just Went Away

Chief Judge Diane Wood is a Smart Person

According to an article published Monday evening in the online version of the Wall St. Journal, Judge Wood, who just happens to be the chief of the 7th Circuit Court of Appeals, thinks that we'd all be better off if the Federal Circuit were eliminated.  Patent appeals would go back to the regular circuits, the way it used to be, so that we can get "a diversity of viewpoints on patent law the way we do with nearly every other legal subject."

Yeah, because we're not getting enough "diversity of viewpoints" from the twelve judges that currently sit on the Federal Circuit.  Like when they hear an important case en banc and produce seven opinions, none of which attract a majority of the court. That kind of monolithic thinking is not serving us well.

This could work out GREAT!!!  Sure!  You think the Supreme Court has been hearing a lot of patent cases lately?  Just wait until we go back to having circuit splits on patent law issues. And even more forum shopping!  Awesome!  

Terry and the Pirates

UPDATE:

The bill, which has now been christened the "Targeting Rogue and Opaque Letters Act of 2014" (the "TROL" Act - get it?) has now been approved by the House Energy and Commerce Subcommittee on Commerce, Manufacturing and Trade (say that five times fast).

The bill now moves to the full committee.  

On July 1, U.S. Rep. Lee Terry (R., Neb) introduced a draft bill  that would make sending bad-faith patent demand letters an unfair trade practice, with enforcement in the FTC.  If enacted, the bill would supersede the anti-trolling bills that have been enacted in several states so far. This is pretty clearly an effort to get out in front of the action that's bubbling up at the state level.

BUT...

The bill is still pretty clearly only half-baked.  For example, it doesn't address how the FTC is supposed to deal with concurrent patent litigation.  But it bears watching.

Your July 4 Patent Post

The Patent Act of 1836, passed on July 4 of that year.

It's interesting to see how much of the language in that original statute survives to this day.

USPTO Opens office in Denver, plans to stay awhile.

On Monday the USPTO issued a press release entitled 

U.S. Patent and Trademark Office Opens Permanent Satellite Office in Denver, Colorado

"Permanent?"  Really?  

Well, that takes care of that... or does it?

Most American beer drinkers know that the quintessential American macro-brew, Budweiser, has been locked for years in an international trademark battle with Budejovicky Budvar over the Budweiser name.  

The Czechs always held the moral high ground in this dispute, since the Czech brewer located in the town of Budvar (or, in the German, Budweis - hence the name).  How, the Czechs ask, can this American import be allowed to co-opt our hometown name?

Interesting side note:  in the U.S., Budejovicky Budvar wouldn't be able to register the trademark "Budweiser" on that basis alone - marks that primarily identify the geographical location where the product originates are not registrable - see, e.g., the Boston Beer Company and California Pizza Kitchen.

Now, Reuters is reporting that Anheuser-Busch InBev, the Belgian-based mega-brewing conglomerate that makes Budweiser in the U.S., has purchased the Czech brewery Samson, which is also located in Budvar.

The implications are staggering.  Or maybe not.  Anyway, we'll have to wait and see what happens next.