Sunday, August 02, 2015

Sunday Morning on August 2, 2015


Almanac. August 2, 1754: Pierre L'Enfant born. Died in 1825.

Martha Teichner on fruit plates in Moscow,
Idaho.

Conor Knighton on "Summer of '69".
Nick Offerman and Megan Mullally. Clips of them in Oklahoma City.

Osgood on Walter Palmer, the dentist who killed
Cecil the lion. Osgood noted that the number of lions
has gone from 75,000 in 1980 to less than half that now.

Barry Peterson on Ron Diolio, teacher of
astronomy. Dark night sky in West Texas.

Mark Strassman in Havana on Cuban cigars.
Monteveisto. Pinar del rio.robaina.
Marcus Daniel of Naples, Fl.

Steve Hartman in Fairport, NY Bob Cramer and Leona sharp.

Rob Reiner interviewed.

Mo Rocca on Mustang convertibles.
Mat Anderson of Dearborn museum.
FDR and the Sunshine Special.

Pulse. Top summer song Katy Perry Califormia Gurls.


August 3. National hobo convention in Brit, Iowa.

Ben Stein on low rate of increase in
Worker productivity. Stein on impact of time spent
on cell phone. If we are gossiping, we are not working.

Next week: Jon Stewart.

Moment of nature. Viking. Joshua Tree National Park in
California.

Saturday, August 01, 2015

New report on USPTO on 31 July 2015

A headline in the Washington Post of a story by Lisa Rein begins with
the hook that the patent office stresses
quantity over quality.

Not the first time such an allegation has been made,
but the story was about something else.
Mentioning quotas unchanged since 1976, the
article noted examiners have been given more time for
examination. This would seem to be
Quality over Quantity.

Microsoft wins in licensing case against Motorola (Google)

In the 9th Circuit case Microsoft v. Motorola (appellant; Google with interest), 2015 U.S. App. LEXIS 13275 , the legal issue, in a case ultimately about patents, was an allegation by Microsoft that Motorola breached FRAND agreements; from the decision:


The panel affirmed the district court's judgment in favor of Microsoft Corporation in an action brought by Microsoft, a third-party beneficiary to Motorola, Inc.'s reasonable and non-discriminatory ("RAND") commitments, alleging Motorola breached its obligation to offer RAND licenses to certain of its patents in good faith.

At issue in the appeal were two patent portfolios, formerly owned by Motorola, both of which were subject to RAND agreements. The court previously upheld, in an interlocutory appeal, an anti-suit injunction preventing Motorola from enforcing in a German action any injunction it might obtain against Microsoft's use of certain contested patents. Microsoft Corp. v. Motorola, Inc., 696 F.3d 872 (9th Cir. 2012). Following that prior decision, a jury determined that Motorola had breached its RAND good faith and fair dealing obligations in its dealings with Microsoft.

(...)

The panel held that this court had jurisdiction. The panel held that this court's exercise of jurisdiction over the case in the prior interlocutory appeal, and the Federal Circuit's decision to transfer the instant appeal to this court because this court had jurisdiction, were both law of the case. The panel further held that the earlier jurisdictional determinations were not clearly erroneous.

The panel rejected Motorola's two merits challenges to the RAND bench trial, specifically, that the district court lacked the legal authority to decide the RAND rate issue in a bench trial, and that the RAND rate analysis was contrary to Federal Circuit precedent. First, the panel did not consider whether, absent consent, a jury should have made the RAND determination, because Motorola was aware that the RAND determination was being made to set the stage for the breach of contract jury trial, nor did Motorola ever withdraw its affirmative stipulation to a bench trial for that purpose. Second, the panel held that the district court's RAND analysis did not violate Federal Circuit patent damages law because this was not a patent law action. The panel held, however, that the district court's analysis properly adapted the Federal Circuit's patent law methodology as guidance in this contract case concerning the questions of patent valuation. The panel concluded that the district court's RAND determination was not based on a legal error or on a clearly erroneous view of the facts in light of the evidence.



The bottom line: Motorola (Google) lost:


With the parties' consent, the district court conducted a lengthy, thorough bench trial on the RAND rate and range. The court analyzed that evidence in its exhaustive findings of fact and conclusions of law, in a manner consistent with the Federal Circuit's recent approach to establishing damages in the RAND context. The court's factual findings were properly admitted at the jury trial. The jury's verdict [*83] was supported by substantial evidence, and its damages award was proper.

The judgment of the district court is AFFIRMED.

Friday, July 31, 2015

CAFC discusses inherent anticipation in ParkerVision/Qualcomm case



Of the matter of inherent anticipation:



Only one claim limitation is in dispute here: “performing
a plurality of charging and discharging cycles of the
first and second capacitors to generate first and second
down-converted information signals across first and
second impedance devices, respectively.”12 ParkerVision
contends that DeMaw does not anticipate claim 18 because
it does not expressly teach the claim limitation of
“charging and discharging” capacitors to generate a
baseband signal. Anticipation, however, “can occur when
a claimed limitation is ‘inherent’ or otherwise implicit in
the relevant reference,” even though the reference does
not expressly teach that limitation. Standard Havens
Prods., Inc. v. Gencor Indus., Inc., 953 F.2d 1360, 1369
(Fed. Cir. 1991), citing Tyler Refrigeration v. Kysor Indus.
Corp., 777 F.2d 687, 689 (Fed. Cir. 1985).



Cases involving inherent anticipation are counter-examples
to the "urban legend" that anticipation is the epitome of obviousness.

The CAFC also noted:


Thus, even though Figure 6.7 of DeMaw does not expressly
state that the capacitors engage in “charging and
discharging” to generate a baseband signal, Dr. Razavi’s
detailed testimony regarding the DeMaw circuit established
that charging and discharging is “implicit” in that
reference. ParkerVision sought to challenge Dr. Razavi’s
testimony in various respects on cross-examination, but
none of its questioning undermined Dr. Razavi’s explanation
of the operation of the DeMaw circuit and how Figure
6.7 of DeMaw corresponds to Figure 16H of the ’342
patent.
ParkerVision also challenged Dr. Razavi’s computer
simulations at trial, faulting him for assigning values to
certain components of the DeMaw circuit that were not
provided in DeMaw itself. Dr. Razavi admitted that
DeMaw does not disclose the values of certain capacitor
and inductor components; he explained, however, that he
used simulations only to “illustrate one or two effects [of
the DeMaw circuit],” and that the component values he
picked for the simulations did not affect his conclusion
that “DeMaw exactly matches the claim language.”



link: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1612.Opinion.7-27-2015.1.PDF

Newegg wins on "prevailing party" issue at CAFC


The CAFC analyzed "prevailing party" in Pragmatus v. Newegg :



To the extent the district court interprets our precedents
to require a prevailing party to have won a dispute
or benefitted from a substantive court decision, the district
court is incorrect. Such a requirement goes beyond
the Supreme Court’s statements in Buckhannon, which
require only that the party has obtained a “judgment on
the merits,” 532 U.S. at 603, resulting in “a corresponding
alteration in the legal relationship of the parties,” id. at
605.

“The dismissal of a claim with prejudice . . . is a judgment
on the merits under the law of the Federal Circuit.”
Power Mosfet, 378 F.3d at 1416. At least where such a
dismissal is paired with a covenant not to sue, this court
has held that the dismissed party must be regarded as the
prevailing party.
See Highway Equip. Co. v. FECO, Ltd.,
469 F.3d 1027, 1035 (Fed. Cir. 2006) (“[A]s a matter of
patent law, the dismissal with prejudice, based on the
covenant [not to sue] and granted pursuant to the district
court’s discretion under Rule 41(a)(2), has the necessary
judicial imprimatur to constitute a judicially sanctioned
change in the legal relationship of the parties, such that
the district court properly could entertain [a party’s] fee
claim under 35 U.S.C. § 285.”).




link: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1777.Opinion.7-29-2015.1.PDF

CAFC reverses WDNC in Blue Ridge case; synecdoche not inherently ambiguous


There was a claim construction issue in SOCIEDAD ESPANOLA DE ELECTROMEDICINA Y
CALIDAD, S.A. v. Blue Ridge ; Phillips was cited:


Claim terms are generally given “the meaning that
the term would have to a person of ordinary skill in the
art in question at the time of the invention.” Phillips v.
AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en
banc) (citations omitted). “[T]he person of ordinary skill
in the art is deemed to read the claim term not only in the
context of the particular claim in which the disputed term
appears, but in the context of the entire patent, including
the specification.” Id. at 1313.

The parties dispute the proper construction of two
claim terms: “two insulated chambers” and “magnetic
core.” Because the district court relied only on intrinsic
evidence in its claim construction, we review its claim
construction entirely de novo.

[So the Teva decision is not at play here.]




The issue on insulated chambers:


The district court recognized that construing “insulated
chambers” as electrically insulated “has a common
sense appeal.” Construction Op. at *7. Nevertheless, it
concluded that the patentees disavowed this definition
during prosecution. Id. at *8–10. The district court
placed great weight on the patentees’ statement during
prosecution describing their invention as requiring “different
and isolated chambers,” quoting this language
three different times. Id. at *9, *10 (quoting ’534 application
at applicants remarks (May 27, 2003) (emphases in
original)). The district court’s quote of the prosecution
history was inaccurate.
The prosecution history refers to
the chambers as being “different and insulated,” but
never refers to them as being isolated. What was referred
to as being “isolated” were the “different and
isolated columns.” ’534 application, applicants remarks
(May 27, 2003). The prosecution history thus fails to
support the district court’s characterization of the two
chambers as being so isolated that nothing can pass from
one to the other. The prosecution history certainly does
not rise to the level of a clear and unmistakable disavowal.
Blue Ridge argues that the plain and ordinary meaning
of “chambers” requires some sort of an enclosure.
True enough. But Blue Ridge has failed to show that such
an enclosure must be so closed or isolated as to prevent oil
or other elements from passing from one enclosure to
another.

(...)

Thus, the proper construction of “two insulated chambers”
is “two electrically insulated chambers.”




** As to magnetic core:



Blue Ridge argues that a synecdoche is inherently
ambiguous and should, therefore, be construed against
SEDECAL. That is not the law. Where a claim term
“ha[s] more than one plain and ordinary meaning,” we
look to the specification to ascertain which definition is
intended. See Kaneka Corp. v. Xiamen Kingdomway Grp.
Co., --- F.3d ----, 2015 WL 3613644, at *4 (Fed. Cir. June
10, 2015).
From the foregoing, we conclude that the phrase
“magnetic core” as used in the specification of the ’829
patent refers to core legs connected by yokes. The district
court’s contrary conclusion is unsupported by the specification
and is erroneous.



link: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1102.Opinion.7-29-2015.1.PDF

Thursday, July 30, 2015

Bioreactor patent application to K. Helllingwerf

Note published US application 20150210970, titled ARRANGEMENT OF A PHOTOBIOREACTOR OR A MICROBIOLOGICAL REACTOR .

Ice cream and intellectual property


Dunlap Codding has a recent post titled The Cold Reality of Our Favorite Frozen Treat Lawsuits mentioning certain trademark disputes in the ice cream biz.

For example, “Mister Softee” and “Master Softee” argued over Master Softee’s use of Mister Softee’s federally registered logo and sensory marks and its trade dress, among other issues. The owner of the “Master Softee” trucks, Dimitrios Tsirkos, was a prior franchisee of “Mister Softee.”

IPBiz has discussed some patent disputes in the ice cream biz. See for example
Popsicle patent wars of yesteryear

And don't forget that "melted ice cream" was behind the Evinrude patents. In 1906, ice cream melted while Evinrude was rowing to his girl friend. See http://ipbiz.blogspot.com/2015/04/cbs-sunday-morning-on-april-19-2015.html

CAFC re-visits design patents in High Point Design vs. BDI


The outcome:


BDI challenges each of these determinations on appeal.
For the reasons set forth below, we reverse summary
judgment of invalidity, affirm summary judgment of
non-infringement, affirm the denial of BDI’s motion for
additional discovery, and affirm the denial of BDI’s motion
to amend the complaint.



The CAFC gave background:


Design patents are presumed to be valid. 35 U.S.C.
§ 282(a). A party seeking to invalidate a patent on the
basis of anticipation must do so by clear and convincing
evidence. See Catalina Lighting, Inc. v. Lamps Plus, Inc.,
295 F.3d 1277, 1288 (Fed. Cir. 2002). Design patent
anticipation requires a showing that a single prior art
reference is “identical in all material respects” to the
claimed invention. Door-Master Corp. v. Yorktowne, Inc.,
256 F.3d 1308, 1312 (Fed. Cir. 2001) (quoting Hupp v.
Siroflex of Am., Inc., 122 F.3d 1456, 1461 (Fed. Cir.
1997)). In other words, the two designs must be substantially
the same. See Door-Master, 256 F.3d at 1312, 1313
(applying design patent infringement test from Gorham
Mfg. Co. v. White, 81 U.S. 511, 528 (1871), as the test for
anticipation). Two designs are substantially the same “if
the resemblance is such as to deceive [an ordinary observer],
inducing him to purchase one supposing it to be the
other[.]” Gorham, 81 U.S. at 528. Anticipation is a question
of fact. Int’l Seaway Trading Corp. v. Walgreens
Corp., 589 F.3d 1233, 1237 (Fed. Cir. 2009). Summary
judgment is proper only when the evidence underlying
anticipation is clear and convincing such that no reasonable
fact-finder could find otherwise. See SRAM Corp. v.
AD-II Eng’g, Inc., 465 F.3d 1351, 1357 (Fed. Cir. 2006).
Viewing all evidence in the light most favorable to the
non-moving party—BDI—we conclude that a reasonable
jury could have found there was not clear and convincing
evidence of anticipation.
In High Point I, we instructed that on remand, the
district court should “add sufficient detail to its verbal
description of the claimed design to evoke a visual image
consonant with [the] claimed design.” 730 F.3d at 1314.
We also instructed that the district court should perform
a side-by-side comparison of the claimed and prior art
designs as part of the proper obviousness determination.
Id. Notably, we cautioned that there appeared to be
“genuine issues of material fact as to whether the Woolrich
Prior Art are, in fact, proper primary references” for
obviousness purposes under 35 U.S.C. § 103. Id.
On remand, the district court did not perform a sideby-side
comparison, but concluded that the claimed and
prior art designs share the “same characteristics” because
they share “a structured body, a soft-looking fluff surrounding
the opening of the slipper, and a sole that appears
durable and fairly thick.” Remand Order, 2014 WL
1244558, at *6; see also id. at *7.
We find again that the district court fundamentally
erred in its analysis by analyzing the designs from “too
high a level of abstraction” and failing to focus “on the
distinctive visual appearances of the reference and the
claimed design.” High Point I, 730 F.3d at 1314 (quoting
Apple, 678 F.3d at 1331–32). Specifically, the court’s
description does little more than point out the main
concepts of the claimed design: a structured slipper
having fuzzy material at the foot opening. See Durling v.
Spectrum Furniture Co., 101 F.3d 100, 104 (Fed. Cir. 1996)


CAFC analyzes stay requests in view of CBM review by PTAB


The background of this CAFC case relates to stays requested by
Apple, and by Samsung:



Smartflash LLC and Smartflash Technologies Ltd.
(collectively, “Smartflash”), patent licensing companies,
filed separate suits against Apple and Samsung on May
29, 2013, alleging infringement of U.S. Patent Nos.
7,334,720 (the “’720 Patent”); 8,033,458 (the “’458 Patent”);
8,061,598 (the “’598 Patent”); 8,118,221 (the “’221
Patent”); 8,336,772 (the “’772 Patent”); and 7,942,317 (the
“’317 Patent”). Subsequently, Smartflash sued Google,
Inc. (“Google”) on May 7, 2014 and Amazon.com, Inc.
(“Amazon”) on December 23, 2014 for patent infringement,
asserting the same six patents as those asserted
against Apple and Samsung, as well as an additional
patent that issued on August 5, 2014, U.S. Patent No.
8,794,516. All of the asserted patents relate to managing
access to data via payment information.
Throughout the course of these cases, both Apple and
Samsung filed multiple CBM petitions with the Patent
Trial and Appeal Board (“PTAB”). See America Invents
Act, Pub. L. No. 112-29, § 18, 125 Stat. 284, 329–31 (2011)
(“AIA”). Between March 28 and April 3, 2014, Apple filed
12 separate petitions for CBM review on 35 U.S.C. §§ 102
and 103 grounds. And, on April 3, 2014, Apple moved to
stay the district court action pending CBM review. See
Defendants’ Motion to Stay Litigation, SmartFlash LLC
v. Apple Inc., No. 6:13-cv-447 (E.D. Tex. Apr. 4, 2014),
ECF No. 120. On May 15, 2014, Samsung filed a motion
to stay based on Apple’s CBM petitions, explaining that, if
the court were to grant its motion, it “would stipulate to
be bound to the same extent as Apple is under
§ 18(a)(1)(D) of the America Invents Act.” Defendants’
Motion to Stay Litigation, SmartFlash LLC v. Samsung
Elecs., Co., No. 6:13-cv-448 at 3 n.4 (E.D. Tex. May 15,
2014), ECF No. 149. Because the PTAB had not yet
decided whether to grant these petitions, the district court
denied both motions without prejudice to refiling if any of
the petitions were granted. S


Of history of the AIA:


Congress enacted the AIA, in part, to address concerns
about business method patents. With this Court’s
decision in State Street Bank & Trust Co. v. Signature
Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998), the
test for patent eligibility greatly expanded until the
Supreme Court’s decision in Bilski v. Kappos, 561 U.S.
593 (2010), which significantly curtailed the patentability
of business methods. As a result of “[t]his judicial expansion
and subsequent judicial retraction of U.S. patentability
standards . . . a large number of business-method
patents” issued that may not be valid. 157 Cong. Rec.
S1379 (daily ed. Mar. 8, 2011) (statement of Sen. Kyl).
Through the enactment of Section 18 of the AIA, Congress
sought to clarify this confusion by providing “a relatively
inexpensive administrative alternative to litigation for
addressing disputes concerning the validity of [CBM]
patents.” 157 Cong. Rec. S1379 (daily ed. Mar. 8, 2011)
(statement of Sen. Kyl); see also 157 Cong. Rec. S1364
(daily ed. Mar. 8, 2011) (statement of Sen. Schumer)
(noting that the fundamental purpose of the CBM review
process is “to provide a cost-efficient alternative to litigation”).

But in order to realize Congress’s intent to establish
an alternative to district court litigation for CBM issues,
parties must file CBM petitions in a manner that facilitates
this goal. We recognize that there is no statutory
deadline to file a CBM petition, unlike other post-grant
proceedings, but we nevertheless conclude the timing of
the petitions in this case created a tactical advantage for
Apple. See VirtualAgility, Inc., 759 F.3d 1319–20 (considering
the timing of a CBM petition to assess whether a
party sought to gain a tactical advantage or had a “dilatory
motive”). By waiting to submit its petitions until
almost the eve of trial and well after it filed its motion for
summary judgment on the § 101 issue, Apple was able to
first pursue its § 101 defense at the district court and
then at the PTAB.





Footnote 3 of the CAFC decision observes:



Although delay in filing a CBM petition is not one
of the express factors listed in § 18(b)(1), it is not improper
for the trial court to have considered traditional equitable
factors, such as unclean hands, in its analysis.



And the CAFC noted:


Specifically, because Apple
waited to file its petitions, the district court found that it
and the parties had already spent substantial time and
resources on the litigation, as evidenced by the six day
jury trial, the hundreds of pages of court-issued orders
and opinions, and the thousands of pages of briefing and
exhibits submitted by the parties. The district court also
explained that, under the current post-trial schedule, the
parties could appeal the entire litigation to this Court
prior to any appeal from a PTAB final determination.
Thus, the district court determined that it was more
efficient not to stay the case.



The conclusion of the CAFC: no stay for Apple:



Here, all four factors weigh against a stay in this case.
On this record, we conclude that the district court did not
abuse its discretion when it denied Apple’s motion to stay.


There was a different result for Samsung:


But the critical distinction
between the Apple and Samsung cases is that Samsung
has yet to go to trial. This fact affects the analysis of two
of the four factors: simplification of the issues and reduction
of the burden of litigation on the parties and on the
court. While the district court is extremely familiar with
the Apple case at this juncture, there are different claims
at issue and different accused technology in the Samsung
case. Oral Arg. at 30:18–31:24, available at
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
15-1707.mp3. Additionally, the Samsung case involves
three co-defendants: Exedea, Inc.; the Samsung entities;
and the HTC entities. The trial will involve fact witnesses
from overseas and require the use of interpreters for
some foreign witnesses. The additional complexities and
cost of the Samsung trial counsel us to find that these two
factors weigh in favor of a stay

(...)

Because
the district court did not properly consider the significance
of this fact in its analysis, we find that the district
court abused its discretion when it denied Samsung’s
motion to stay. And, on balance, we conclude that the
totality of the factors weigh in favor of a stay.



link: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1701.Opinion.7-28-2015.1.PDF

Tuesday, July 28, 2015

CAFC addresses analogous art in Circuit Check v. QXQ


In Circuit Check v. QXQ, the jury had found the claims of the patent
of Circuit Check not invalid as obvious, the district court judge granted judgment as a matter of law
that the claims were obvious and invalid, and the CAFC reversed the district court's judgment as a matter of
law. Thus, not obvious, obvious, not obvious.

The END of the Circuit Check opinion states:


Whatever doubts we have about these patents, the ju-
ry verdict was supported by substantial evidence.
We therefore reverse the district court’s grant of judgment as
a matter of law and remand for further proceedings
consistent with this opinion




The big issue in the case was whether certain prior art was analogous:


At trial, QXQ argued that three additional refer-
ences—rock carvings, engraved signage, and a machining
technique known as Prussian Blue (collectively, the
“disputed prior art”)—disclose the limitation
not present in the stipulated prior art and constitute analogous prior
art. Circuit Check argued that
the references were not
analogous.




The CAFC spoke of the analysis by the district court:


[The district court] found that although there was no
doubt that rock carvings “are not technically pertinent to
the ‘field’ of circuit testers,” and “witnesses credibly
testified that Prussian Blue dye had not been used on
alignment plates,” “any layman ” would have understood
that interface plates could be marked using the tech-
niques described in the disputed prior art (...)
It further noted that “any vandal who has ‘keyed’ a car
knows that stripping the paint with a key will result in
the underlying metal color showing through.”



As to the issue of "analogous art," the CAFC stated:



By finding the claims nonobvious, the jury presuma-
bly found that the disputed prior art is not analogous
and therefore not within the scope of the prior art.
See Jurgens, 927 F.2d at 1557. Substantial evidence supports
the jury’s presumed finding. To be considered within the
prior art for purposes of the obviousness analysis, a
reference must be analogous. Wang Labs., Inc. v. Toshiba
Corp., 993 F.2d 858, 864 (Fed. Cir. 1993). Whether a
reference is analogous art is a question of fact.
Wyers v. Master Lock Co., 616 F.3d 1231, 1237 (Fed. Cir. 2010).
Prior art is analogous if it is from the same field of en-
deavor or if it is reasonably pertinent to the particular
problem the inventor is trying to solve. Id.


The CAFC also stated:


The jury heard testimony that a
person of ordinary skill in the
art would not have thought
about rock carvings, engraved
signage, or Prussian Blue
in considering how to mark
interface plates.

(...)

The question is not whether simple concepts
such a s rock carvings, engraved signage, or Prussian Blue
dye are within the knowledge of lay people or even within
the knowledge of a person of ordinary skill in the art.
Rather, the question is whether an inventor
would look to this
particular art to solve
the particular
problem at hand.

Monday, July 27, 2015

Pre-emption of state trade secret law by federal copyright law


From the JDSupra post Fifth Circuit Revisits Copyright Preemption of Trade Secret Law :



On appeal, the Fifth Circuit analyzed preemption in two steps. First, the court determined “whether [the claim] falls within the subject matter of copyright.” Second, “the cause of action is examined to determine if it protects rights that are ‘equivalent’ to any of the exclusive rights of a federal copyright.” The Fifth Circuit joined other circuit courts (including the First, Third, Seventh, and Ninth Circuits) in finding that “state law claims based on ideas fixed in tangible media are preempted by § 301(a).” It found that the Spear Marketing’s claims were within this scope of preemption because: 1) computer software is a tangible medium; and 2) input/output data from VaultWorks is a trade secret. When addressing the second prong, the court found that the allegations of copying, communicating, and transmitting were equivalent to the reproduction and distribution rights under Copyright Law.



One wonders if the trend of courts requiring greater specificity in trade secrets (which might be advanced by fixing the ideas in tangible media), will run afoul of preemption?

Copyright and jokes posted on Twitter


In the realm of copying without attribution, see the thread on betanews titled Twitter censors plagiarized tweets that repeat copyrighted joke

Fortune on Google's patent giveaway to start-ups

Fortune's piece on Google's patent "giveaway", titled Google's new patent plan: how it will and won't help startups does not project big impact for the patent recipients. For example:


It’s a nice gesture on Google’s part, but will two patents make a big difference for the startups? Not really. One reason is the patents Google is giving out are mostly defanged. They come with licensing terms that prevent the new startup owners from invoking them against certain companies and, more broadly, a patent can only be used for defensive purposes – otherwise the startup will have to give it back to Google.



Elsewhere in the Fortune article:


Ultimately, though, receiving a Google patent will not change the destiny of any individual startup. History shows that successful startups – think Uber or Pinterest or AirBnb – get where they are by focusing on innovation and execution, not by mastering patent strategy.

The real significance of the Google Patent Starter Program is instead more subtle, and should be seen against the backdrop of other moves Google is undertaking to change the economic incentives that have made patents such a problem for the tech sector in the first place.

One other such move came in April when Google opened a temporary patent portal in April that let sellers ask if the company wanted to buy their assets. According to Kurt Brasch, a lawyer at Google, the program was a big success. In a phone interview, he wouldn’t provide many details, but did say the company bought numerous patents at purchase prices ranging from $3000 to $250,000.

Friday, July 24, 2015

Holt still clueless on patent reform

Mytheos Holt has another post on patent reform titled: The Fight Against Patent Trolls Is About Principle: link: http://dailycaller.com/2015/07/24/the-fight-against-patent-trolls-is-about-principle/#ixzz3gqkI5lHN

He suggests that patent reform was bipartisan. He omits that the opposition to patent reform is also bipartisan.

Holt writes:


That it is breaking down is a sign of the success of an otherwise very dubious public relations campaign seeking to cast the idea of patent reform as a giveaway to corporate interests and the Chinese.




One issue is that Goodlatte's "loser pays" provision is a problem for small inventors and universities, not so much of a problem for big companies, and nothing to do with the Chinese. One can look at the recent Columbia University / Illumina matter. Was Columbia University a troll who should pay Illumina's legal fees because Columbia lost?