Intellectual Property Law

CAFC Could Be Cited As Authority In Rocket Clemens Defense.

Posted on August 13, 2009
Showing their every-widening expertise in everything from IP to HGH to Latinisms, the Federal Circuit has reversed 2-1 a decision over the firing of a federal correctional officer, who had tested positive for steroids after losing his bout in a Ultimate Fighting Championship event UFC 75 in London...

Colting Caught in the Rye, with Friends.

Posted on August 11, 2009
An expedited appeal to the 2nd Circuit {09-2878 by the author known as J.D. California} of the injunction against his unauthorized sequel to Salinger has garnered several amici, including some IP Law professors.  As briefs by amici-teachies tend to be, this one is a position paper on the fair use/transformative test and against a presumption of irreparable harm when [...

If enough air is released, everyone held aloft by the joint defense balloon may need to have packed their own parachute.

Posted on August 10, 2009
An article by Zuzha Elinson in The Recorder points out the risks attendant to joint defense groups in patent litigation. The prime risk is being unprepared to go it alone when everyone else settles out around you. Two cases are mentioned, one defense verdict and one for the plaintiff, from which it is implied that [...

I?m Sorry Dave, but copying this program into RAM is too important for me to allow you to jeopardize it.

Posted on July 14, 2009
In Quantum Sys. v. Sprint Nextel, 2009 WL 1931196 (4th Cir. July 7, 2009), the panel unpublished that they had followed the 9th Circuit’s MAI Sys. v. Peak ruling, which deems loading software into RAM the making a “copy,” which is “sufficiently fixed for purposes of copyright infringement...

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About my lapsed patent, unpaid maintenance fees and the contours of your breaches, ?See you in Court? - somewhere.

Posted on July 13, 2009
A Michigan legal malpractice suit against patent attorneys, alleged a lapse due to unpaid maintenance fees, having to settle patent litigation on unfavorable terms, as well as “sundry other breaches … the precise contours of which breaches are not altogether clear from the Complaint...

No Friends in the Diamond Business.

Posted on July 12, 2009
A later-filed, Lanham Act suit between two diamond merchants, which sell ‘enhanced’ gemstones, hits on the issue of standing. In Diascience Corp. v. Blue Nile, Inc., 2009 WL 1938970 (S.D.N.Y. 2009), the district court revists the somewhat unresolved law of Lanham Act standing...

9th Cir. Cues The ?Traveling Music? for a Prevailing Copyright Party.

Posted on July 01, 2009
In reversing an award of substantial attorneys fees in a copyright case, a Ninth Circuit panel reversed another panel’s seventy-year old ruling about whether a voluntary dismissal without prejudice makes the defendant a “prevailing party.” In Cadkin v...

Maybe Patent Agents Were Needed In Puerto Rico.

Posted on June 19, 2009
It’s a short trip from S. Florida to Puerto Rico, but what’s there to do there. You could stroll a white sand beach along Playa Brava, or spend eight hours at the Univ. P.R. - Mayaguez making an illicit copy of a standardized exam. The defaulting defendant in National Council of Examiners for Engineering and [...

That Big-Ole Defense Went Down Well.

Posted on June 18, 2009
A jury verdict against Jammie Thomas for downloading, and making available, 24 copyrighted songs, totals $1.92 million.  The RIAA never will be able to collect on this Dr. Evil sized penalty, but still, it?s a win.

I ?Know a Guy? - Generically Speaking.

Posted on June 17, 2009
One word added to the parlance, but still known as “fixed” to a novel and film is “The Godfather.” Capece? It seems the term is at once, unique and attributable to the Puzo book and Coppola film, while too being generic and adjectival...

The Unbearable Pointlessness of the Fight.

Posted on June 14, 2009
Litigation, especially over property to which the litigant has an intellectual connection, tends to be hard fought - but then, the stakes often are so high. The continuation of a business, and the employment of those pursuing that business, hinges upon the litigation outcome...

The Blawger?s Body of Evanescent Work.

Posted on June 11, 2009
One attraction of intellectual property is that, although the exclusive rights are for “limited times,” the I in IP embodies an element of immutability. Even after IP is devoted to the public domain, the invention was one that persons of skill in the particular art, at the time of invention, would consider new, useful [...

Thou Shalt Not Convey Away Just Before Reckoning Day.

Posted on June 05, 2009
When an owner/patentee feels the ship listing, then the IP often gets assigned, reclaimed, conveyed, etc. TNo specific or legal remedy can prevent this, but typically pleaded is an action for imposition of a constructive trust, as in The Compak Companies v...

In re Bilski - Could be Transformative

Posted on June 01, 2009
News that the Supreme Court will review In re Bilski is quick to set off currents of speculation.  In its un-reviewed form, Bilski was relief from the State Street hangover and was a work-around to the stunted state of reforming the Patent Act.  Now, one wonders how the Supremes can keep intact their string of smackdowns [...

Self-Congratulatory Moment.

Posted on May 26, 2009
May celebrates Historic Preservation month, http://www.preservationnation.org/take-action/preservation-month/. Those who have contributed to the preservation and adaptation of historic places in America are celebrated by The National Trust for Historic Preservation, as well as by local bodies...

That Judge Said Disgorge, and I Say Much More.

Posted on May 22, 2009
Alas, the sphere of copyright protected musical works is too often penetrated by pirates, and if Gilbert & Sullivan still could craft a tune, they’d bemoan that what’s been gained is now often lost. This fine, and hallowed, Memorial Day weekend, will include some time listening to some faves on the radio or media player, [...

$540 for Your Thoughts, Sir.

Posted on May 20, 2009
Rulings on counsel fee motions give some idea of what IP litigators charge, as well as how much courts are willing to award, for New York minutes. Reduced fees were awarded in a ruling yesterday in a case over “patterns, fabrics and color schemes that are identical or virtually identical to the patterns, fabrics and color schemes [...

Divebombing The Yellow.

Posted on May 19, 2009
Guess what color is a registered trademark of Wham-O for water slide toys? The answer is in the Ninth Circuit’s affirmance Friday of a verdict finding willful infringement of the color yellow. 2009 WL 1360963. Wham-O was able to preclude testimony by the infringer’s expert on the topic of the “competitive advantages offered by use of [...

Some Laches Getting Down to the `Skins.

Posted on May 19, 2009
The D.C. Circuit has affirmed the ruling that laches bars Native Americans claim of disparagement by the use of the mark “Washington Redskins.” 2009 WL 1350607. It took only from 1992 until 5/15/09 to reach that issue. What threshold prejudice was there in the time that passed from registration of the mark, in 1967, up to [...

Did the Oracle Ever Speak of The Balance?

Posted on May 15, 2009
If you?ve been to Delphi, and stood at the ruins of Oracle, looking off toward the valley, wondering whether it lies at the line between the cosmological, the meta- and the physical, hinged over a sorcerer?s stone, and not far from the touristical, then you must?ve been experiencing a lot of demestica on that trip...

A Path that is Wide, but the Gate is Narrow.

Posted on May 15, 2009
How many roads must a patentee go down, before he can see the sky?  The patentee wishes to invest in plowshares, but those infringers divert some of the budget to swords.  Then, at the reckoning, what is gained. Passages from two recent decisions that deny post-judgment recoupment remind us that when the fire burns out, there [...

Still Trying to Make the Grade.

Posted on May 14, 2009
As the mid-point of 2009 approaches, I hope to get re-grounded in that somewhat worthwhile pursuit of blawging.  As the year began, I had the pleasure of being the guest blawgger on techlawforum.net.  Doesn’t look like anyone picked up that gig after I left it...

Postscript at Closure.

Posted on August 28, 2008
This IP blog took to cyberspace in August, two years ago.  Now, after 150 posts and 350,000 visits by readers, I’m closing it down.  I’ll still read every CAFC case, and take in most every IP case that I can find {thanks PACER}.  My conclusion, though, is that the ’space’ occupied by IP blawgers is overcrowded and [...

I Covenant, No I Condition, Not To Infringe Your Copyright.

Posted on August 13, 2008
Not since the Sixth Circuit decided Mike’s Train House v. Lionel LLC, around Xmas/Hannukah 2006, has the notion of grown-ups, wearing judges’ robes, arguing over how to run model railroads, come into mind. Until now, with the CAFC’s ruling in Jacobsen v...

When ?Fudging? Conduct is Inequitable.

Posted on July 27, 2008
Many proposals for patent reform legislation suggest changes to the inequitable conduct defense. One proposal is that the defense strictly require information material enough to get the a patent rejected or granted.  Just checking the wrong box on a form would not be material enough...

Had the CAFC been Jurors, They?d Have Told the Judge to Grant a Directed Verdict.

Posted on July 21, 2008
A first read of Muniauction v. Thomson left a bewilderment - was this the worst CAFC decision of 2008, or one of the worse patents in a 2008 appeal.  Such thoughts continued, until the complete fog thinned to a thin veil of haze.  It’s a candidate for both awards...

Originality is Elemental, but is it Art.

Posted on June 30, 2008
The protection of visual and artistic works is the stock and trade of the Register of Copyrights. These works do not have to aesthically pleasing or critically acclaimed, only original. The 10th Circuit’s recent decision in Meshwerks, Inc. v. Toyota has kept me perplexed through the weekend...

With Pavao, You?ve Got the Power.

Posted on June 25, 2008
In a non-precedential show of its power, the CAFC reversed de novo in another case involving a JMOL motion reviewed under Ninth Circuit law. In today’s ruling in Heuft v. IDC, the panel finds a prosecution disclaimer in a parent patent, applies that to claims later issued from a divisional, then rules in toto on infringement, even [...

This 13 Thing Keeps Coming Up Decisively.

Posted on June 13, 2008
There’s a lot to think about on a Friday - do I have charcoal, will it rain, how come I’m still working on Monday’s work, what the numbers on my paycheck mean - oh, and that it is the 13th.  For all those lucky birds who were born on Friday the 13th, what can you tell [...

As I Had Said, I?m Saying What I Claim It Means.

Posted on June 04, 2008
June is off with a CAFC case in which the same counsel that prosecuted the patent argued for a non-literal interpretation of the issued claims.  If the client thinks that the patent you prosecuted will protect against infringement, then when you are asked ‘does it cover this,’ you may wonder how Markman would interpret the saying, ‘in [...

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