WASHINGTON — The U.S. Department of Commerce today released a green paper on Copyright Policy, Creativity, and Innovation in the Digital Economy (Green Paper) to advance discussion on a set of policy issues critical to economic growth. The Green Paper discusses the goals of maintaining an appropriate balance between rights and exceptions as the law continues to be updated; ensuring that copyright can be meaningfully enforced on the Internet; and furthering the development of an efficient online marketplace.
The Green Paper released today is the most thorough and comprehensive analysis of digital copyright policy issued by any administration since 1995. The report is a product of the Department of Commerce’s Internet Policy Task Force (IPTF) with input from the U.S. Patent and Trademark Office (USPTO) and the National Telecommunications and Information Administration (NTIA). Through the IPTF, the USPTO and NTIA will solicit further public comments and convene roundtables and forums on a number of key policy issues.
“Copyright law strikes a number of important balances in delineating what is protectable and what is not, determining what uses are permitted without a license, and establishing appropriate enforcement mechanisms to combat piracy, so that all stakeholders benefit from the protection afforded by copyright,” said U.S. Secretary of Commerce Penny Pritzker. “Ensuring that our copyright policy provides incentives for creativity while promoting innovation on the Internet is a critical and challenging task. The Green Paper released today is an important step toward ensuring that the United States’ creative industries continue to have a substantial impact on strengthening our nation’s economy.”
Myth 3: Independent inventors and independent inventor companies set up to license their patents have had little impact on the Troll story.
Truth: Independent inventors have a great impact on the NPE story, with independent inventors and independent inventor companies set up to license their patents filing considerably more suits under the joinder rules of the AIA on the average than non-independent inventor based NPEs. Their patents also fare significantly worse in both litigation and reexamination proceedings.
Independent Inventors have long distinguished themselves from “Patent Trolls” arguing the term would soon be used by large companies to stop independent inventor activity. See Chad Vice, Edison Nation Forums, forum post entitled The Patent Trolls’ Lie and The War on Independent Inventors, June 23, 2013. Unfortunately, so-called “experts” in the troll story have consistently been including independent inventor activity in the “troll” category for at least over a decade. In fact as our figures slow, there is no conceivable way of getting anywhere near a majority of troll suits post AIA unless one is counting all independent inventor suits, and suits by their alter ego companies, into the mix. While some may think this unfair, it is simply a fact.
To our knowledge, this is the first study that looked at the effects of independent inventor, and, in particular independent inventor company (that is, companies that we determined were just the alter ego of the individual inventors themselves) were having on the overall NPE numbers. That is, we looked behind the NPE to decide whether a company was just an alter ego of an independent inventor.
Design matters. For example, the success of Apple Computer’s products is due not only to their technical capabilities, but also to their aesthetic design, which Apple has justifiably protected with a substantial portfolio of design patents. Recently, Apple’s iPhone design patents and other intellectual property were under scrutiny in comparison with the Samsung Galaxy family of phones. However, because of the strategy Apple utilized when filing these patents, their counsel at trial was able to obtain a jury award of over $1 billion, $980 million of which could be attributed to infringement of the design patents[i].
In this four part series, titled Strong Design Patents, we will look at Apple’s design patents to see how to build a strong design patent portfolio. In this first article, we will look at “The Power of The Broken Line,” then “The Power of Color”, followed by “The Power of the Portfolio”, and lastly, “The Power of Policing”.
Design patents are deceptively simple. They are merely drawings or photographs of an object. They protect against someone else making a similar looking object. Infringement is determined by comparing the accused object against the figures in the patent. If the accused object is sufficiently similar to the figures so that a typical observer using normal care would confuse the two, then the accused object infringes the patent. The damages for infringement are either the lost profits of the patent holder, a reasonable royalty the patent owner would have received for a license to the patent or all of the profits the infringer made by selling the infringing devices, whichever is greater. It doesn’t matter how much of the value of the accused object can be attributed to the design. If the accused object infringes, the patent owner is entitled to the full damages.
For all of us mystery buffs, what makes a good story is learning at the end who is ulti-mately responsible for the skullduggery set forth at the beginning of the yarn. Were all the prob-lems due to Colonel Mustard and his ineptitude with the candlestick, or do we have another case of “the butler did it?” And so, we set up our response to the many fables swirling around the so-called “Patent Troll” to lead us to whom we now believe is ultimately responsible for the rise in litigation by such entities. In this regard, we will look at numerous statements that have been asserted in the past with respect to the “patent troll,” and see how such statements stack up against the data. By following our responses to the various “myths” of the patent troll, we be-lieve most will themselves detect the “power behind the troll” long before we specifically un-cloak the same (no, it is not the Romulans! ) But just in case, we do the unmasking at the end of the paper.
There are many myths that are attached to the fable of the so-called “patent troll.” Acting like the MythBusters, we probed some of them, and set forth our findings below.
Several weeks ago the United States Court of Appeals for the Federal Circuit issued a rather interesting decision in a case that had initially been appealed up to the Unite States Court of Appeals for the Fifth Circuit. See United States Marine, Inc. v. United States (Fed. Cir., July 15, 2013).
United States Marine, Inc. (USM) sued the United States government in the United States District Court for the Eastern District of Louisiana under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b)and 28 USC §2674. USM alleged that the United States misappropriated USM’s trade secrets. Specifically, USM claimed that the United States Navy, which had lawfully obtained USM’s proprietary technical drawings under a contract (to which USM was not a party), owed USM a duty of secrecy that it breached by disclosing those drawings to a rival private firm for use in designing military boats for the government.
The case was straight forward enough, at least through the end of trial. After the district court found the United States liable for trade-secret misappropriation and awarded USM damages, the government appealed to the United States Court of Appeals for the Fifth Circuit claiming that the district court lacked jurisdiction.
Editor’s Note: This is part 1 of a 5 part series written by Steven J. Moore and with the assistance of Marvin Wachs and Timothy Moore, also of the Kelley Drye & Warren Patent Department.
PROLOGUE : On the Isles of the White Knights and the Lowly Bridge Trolls
Once upon a time, long, long ago, in a land far, far away, there existed an island kingdom called Inventis, a legendary land of technologically advanced people. Inventis was composed of many small islands, each separated by raging rivers of hot lava said to have spewed from the mouths of dragons. The only way to move from one island to the next was by way of a bridge of stone. Several bridges had been built in the past, in each case unlocking unanticipated riches on the bridged island. While it was thought that more riches were on the other islands, because of the effort and danger of building a stone bridge over hot rivers of lava, most of the islands of Inventis remained inaccessible. This was a problem for the King as the population of Inventis was growing rapidly, and the people simply needed more room. The King, looking to promote the progress of bridge building, promulgated an edict whereby any bridge builder was granted, for a time, the exclusive right to any new and useful discovery made on any previously isolated island. To assure that any bridge built would be sound, the King restricted such exclusive right to bridge builders who fabricated their bridges to exacting engineering specifications. He placed the responsibility to assure these provisos were met in the hands of his Ministry of Bridge Patency (“Patency Office”) which also provided administrative mechanisms for anyone wishing to challenge any asserted exclusive right.
On the main island there lived two distinct groups of artisans who were adept at bridge building. One group, the Commercializers of the Enclave of Corporate, sold many products and services to the public. Among their number were some large and sturdy White Knights. The other group, the Non-Commercializers of the Enclave of NPE, were known as dreamers who paid little immediate heed to making money through commerce. Although among their number were independent thinkers, new entrepreneurs, failed commercializers, university scholars and basic researchers, there were also some hideous, slinking creatures who had polluted waters of the mainland by making a living dredging up the wreckage of the past, and marketing it as valuable. Because of these slinking creatures, the Knights referred to all those coming from NPE as “Trolls.”
In December of 2011, we published an article in the New England Journal of Medicine describing the current crisis in cognitive testing. Doctors and medical researchers are scrambling to adapt to the recent assertion of copyrights in a popular screening method that has been used for decades to measure cognitive impairment. Although the assertion of this particular set of rights is relatively new, doctors are increasingly facing copyright claims in a variety of tests, including those for depression and for pain.
In the New England Journal article, we tried to encourage the creation of a cultural norm in the field of medicine, in which medical researchers would ensure continued availability of their tests through appropriate open access licensing for any copyrights that might exist. In this companion piece, we consider the legal side of the question. Although copyrights in medical testing are being asserted frequently, are those rights valid, and should they be upheld in whatever courts eventually hear the issue?
Recently it has come to my attention that there is a WikiHow page titled How to Study for the Patent Bar. I have been teaching a patent bar review course for the Practicing Law Institute since 2000, so I am something of an expert on the patent bar examination. I know a thing or two about how aspiring patent practitioners can and should proceed to study for the exam. I can tell you definitively that if you follow this Wiki advice you are guaranteed to fail!
The other principle lecturer in the PLI patent bar review course, and course creator, John White, put it like this: “If a person really follows this advice, they will be our student after 2-3 failed attempts. They will also be an emotional confused confidence lacking wreck!”
Hopefully we have your attention. You absolutely must be very careful when choosing which advice to follow. While free resources are tempting because the price is right, relying on what is free is a recipe for disaster on the patent exam.
With droves of people flocking to the beach, the role of the beach lifeguard becomes much more important. According to the United States Lifesaving Association, which certifies open water lifeguards, USLA lifeguards completed a total of 69,070 rescues during 2012, about half of which were rip current rescues. USLA lifeguards also completed a total of 307,893 medical aids during that year.
Today in IPWatchdog’s 2013 Summer Fun series, we’re taking a look at patents that recognize the importance of safety at the pool or beach. A number of patent applications and issued patents published by the U.S. Patent & Trademark Office that we feature in today’s column describe systems and tools to aid lifeguards in their work. One patent application explains a buoy system that can wrangle multiple distressed swimmers and provide them with a flotation line. One issued patent protects a rescue tube with a recessed extension strap for safer use. A second issued patent protects a system of detecting rip tides through computer analysis of video.
Two other documents we’re discussing here create safety systems for swimmers when there are no lifeguards present, or if a lifeguard can’t detect a problem. One issued patent is for an alarm system that sounds if it detects that a swimmer is in danger. Finally, one last issued patent discusses an emergency contact system for putting poolside rescuers who aren’t trained to react to emergencies in touch with emergency personnel.
For many summer weather enthusiasts, this time of year is the best for getting out on the water and surfing the largest waves they can find. Surfboards have been around since the 1940s and have grown in popularity as a summer pastime in coastal areas.
Today in IPWatchdog’s Summer 2013 Fun series, in honor of the ongoing U.S. Open of Surfing in Huntington Beach, California, we’re featuring some of the most interesting new patent applications and issued patents related to surfing. Some of these newly devised innovations are designed to help a surfer save their physical energy. One patent application describes a new powered surfboard with a detachable chair for riding far out into a body of water. Another issued patent protects an attachable hard edge that can improve the performance of inflatable surfboards, which are easier to transport. A new four-pointed tail design from a patent application would improve a surfer’s speed and control on the water.