Even if the dispute with Apple and FlashPoint has not been fully resolved by the time of the final sale of the patent assets Kodak may still be able to proceed with the sale if they establish “adequate protection” under the Bankruptcy Code for Apple and Flashpoint at the time of sale. Kodak’s adequate protection could take many forms depending on the value of any remaining alleged interests, the amount of the sale proceeds, and other factors. Alternatively, the Bankruptcy Court also authorized Kodak to sell the patents subject to Apple and FlashPoint’s claims, if mutually agreed between Kodak and the winning bidder.

According to the FTC, coupons are a big business.  There are more than 3,000 manufacturers that annually distribute nearly 330 billion coupons that are worth an estimated $280 billion. With this type of marketplace it is easy to understand why opportunistic criminals would be interested in the industry, particularly given the economic plight of the moment caused by the Great Recession, which we cannot seem to escape.  Tough times cause people to be more cost conscious, but this also provides the perfect cover for con artists and scammers.  

On July 9, 2012, the United States Patent and Trademark Office (USPTO) announced that they are extending the First Action Interview (FAI) Pilot Program. The extension of the program will be in conjunction with a comprehensive review of the program to determine whether any adjustments should be made to the program. Further inquiry will be made into whether the program should be extended further or made permanent. During its review, the Office will consider feedback from both internal and external stakeholders. Accordingly, in addition to announcing the extension of the program, the Office is requesting comments on the program.

These polar opposite decisions in CyberSource and Ultramercial illustrate how fractured the Federal Circuit’s patent-eligibility landscape has now become for business methods and systems. The most recent split decision in CLS Bank International v. Alice Corp. Pty. Ltd. where a claimed trading platform for exchanging business obligations survived a validity challenge under 35 U.S.C. § 101 epitomizes this problem. As CLS Bank International unfortunately shows, an objective standard for judging the patent-eligibility of business methods and systems remains elusive, subject to an ever growing “tug-of-war” between the “inclusive” and “restrictive” patent-eligibility factions of the Federal Circuit. In particular, after CLS Bank International, we are no closer to having a judicially accepted definition of what is (or is not) an “abstract idea” when it comes to claiming business methods and systems.

A factual determination of the Board is to be upheld if there is substantial evidence to support it, In re Gartside, 203 F.3d 1305, 1315 (Fed. Cir. 2000), and a finding is supported by substantial evidence if reasonable minds might accept the evidence as supporting the factual finding. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). This has been translated by the Federal Circuit to mean “is the determination unreasonable?” Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351 (Fed. Cir. 2006).

Readers did point out some issues in our article that we would like to correct. First, we made some statements regarding copyright that are not completely accurate. A work can be jointly owned by two or more copyright holders who then have the right to individually assign nonexclusive rights without the permission of the other copyright holders. This is not typically done by companies developing code, because it effectively gives away the copyrights. It is more typically done when a company accepts code developed by an outside entity. In fact, as was pointed out by one reader, Sun has an agreement called the Sun Contributor Agreement (SCA) that specifies that any person who contributes code to a Sun-managed project gives Sun joint copyright in the code. This is an interesting way for Sun to ensure that code contributed to any of its projects can be used without restriction by Sun without copyright issues.

This case intrigued me from the start because it seemed rather odd that there should be a nonprecedential opinion in an appeal to the Federal Circuit necessitated by a completely adjudicated inter partes reexamination at the United States Patent and Trademark Office. Moreover, the original panel concluded that the combination of known elements resulted in a predictable result. The problem with that reasoning, however, is that not all of the elements were found within the prior art. In fact, the Board found that there are no fewer than three (3) meaningful structural differences between the invention as claimed and the prior art.

The IP Professional community must find ways to work with Wall Street to help educate and protect the credibility of IP as an emerging asset class, and not allow IP assets to become cannon fodder for deals or the investment “flavor of the month.” The InterDigital-Intel deal can be viewed as call to arms. Wall Street will ultimately choose to enlist or not credible transaction analysis. In most trades there are winners, and sometimes losers. Smart IP bankers will choose to do the homework and not be so quick to determine who, in fact, the beneficial parties are. Given the inefficiencies inherent in the patent marketplace, it is quite possible for a liquidity event like a patent transaction to have multiple winners. Reminding the financial community of this will not be easy.

On Friday, July 6, 2012, the United States Court of Appeals for the Federal Circuit issued a decision in General Electric Co. v. ITC. The Federal Circuit, per Judge Newman with Chief Judge Rader and Judge Linn, did not give GE a total victory, but victory enough over Mitsubishi. The Federal Circuit affirmed in part and reversed in part the original decision of the ITC, and remanded the case for further proceedings consistent with the decision. Ultimately, the Federal Circuit ruled that claim 15 of the ‘985 patent, correctly construed, covers the domestic industry turbines. Of note, the CAFC continues to interpret “connected to” and “coupled to” as not requiring physical separation.

This is an interesting development, and one that seems to make sense from both perspectives. When giant corporations are suing each other it is because they are in immature markets, such as we see with the enormous patent litigation surrounding various smart phones, tablet devices and the operating systems that power them. Lawsuits are the mark of an immature market because in the end no one really ever wins, that is except for the lawyers. The patent litigators make out handsomely, and there is absolutely nothing wrong with that. My patent attorney brethren thank you immensely I’m sure, and I am hardly going to take issue with capitalism at work. If you want to sue someone and you have the funds to hire an attorney then have at it!

WIPO is under fire again. It seems that WIPO not only shipped computers to North Korea, but also shipped computers to Iran as well. Congresswoman Zoe Lofgren (D-CA) called this latest WIPO transgression “an outrage.” At a hearing where Deputy USPTO Director Teresa Rea was a witness, Lofgren went on: “Really, it’s an outrage that WIPO would be transferring material, violating the sanctions that we have to North Korea and Iran… I mean it’s basically, it’s funded by U.S. inventors.”

It is still extraordinarily hot throughout most of the United States today. Some relief is on the horizon for tomorrow, at least for the greater Washington, DC and Northern Virginia area, with even more relief next week. After getting up early to go for a long walk with my 5 pound weights in each hand (yes, trying to lose weight) and it was 88 degrees first thing in the morning I knew I had to return to the topic of cool or cold inventions. I know I’m a geek, a nerd and extremely corny! But after the article from yesterday about Cool Wearable Innovations, I couldn’t resist writing an article titled “Cooler Innovation.”

It is fair to say that the eastern half of the United States is experiencing prolonged heat like few can ever remember. With that in mind I thought it might be an interesting time to take a look at some of the innovations that attempts to beat summer heat have lead to over the years. The theme here is wearable coolness. So sit right back in your chair, hopefully in a heavily air conditioned office or home, and get in touch with your inner inventor. These individuals came up with something patentable, and necessity is certainly the mother of innovation. Who knows, perhaps this prolonged heat agony will lead to a who new crop of gadgets associated with keeping one cool and refreshed during the dog days of summer.

The World Intellectual Property Organization (WIPO), in conjunction with INSEAD, released the 2012 Global Innovation Index (GII) on July 3, 2012. The GII model included study of 141 economies, which represent 94.9% of the world’s population and 99.4% of the world’s GDP (measured in US dollars). Once again, for the second year in a row, Switzerland, Sweden and Sinagpore top the list, which measures overall innovation performance. The report ranks countries on the basis of their innovation capabilities and results. The United States ranked 10th.

Earlier this week, the United States Supreme Court handed down its opinion on the Stolen Valor Act (18 U.S.C. §§704). This poor little First Amendment case has been largely ignored for the simple fact that it was published just before the Healthcare Decision. U.S. v. Alvarez answers the question of whether it is acceptable to lie about receiving military awards, more specifically, the Medal of Honor. What is interesting about the opinion for us Intellectual Property nerds is that the concurrence and the dissent both appear to suggest that the harm resulting from such behavior is analogous to dilution in trademark law.