Archive for October, 2011

HALLOWEEN PATENTS

Monday, 31 October, 2011 16:36 Written by danieldavidson 0 Comments
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By Daniel Davidson

To commemorate the spooky holiday which is upon us, Tactical IP would like to scare, I mean share, some All Hallows’ Eve patents with you.

The patent below is not particularly for Halloween but it does back a good punch in the freaky department.  That’s why I thought I would share it with you.  The Ouija Board was first patented on October 26, 1920 by C. H. McGlasson for which he claims the ornamental design of the board.  This “game” board is said to be a medium for which the spirits can communicate to you.

If that doesn’t get your blood boiling, our next patent is a novelty bag wich is sure to do the trick…or treat.  A patent for a bag which comprises of a recording device, audio device and remote control which allows a parent to maybe prompt their little one to “remember to say trick or treat.”Finally, for all the pranksters out there.  A patent for a clever bowl that allows for a user to insert their hand from the opening in the bottom and grab the unsuspecting trick-or-treater’s hand to insight some fright.

I hope everyone has safe and ghoulish Halloween night.  Cheers!

Pharmaceutically Speaking, Part 11.5: More on EU Stem Cell Ruling

Sunday, 30 October, 2011 08:00 Written by Danie Roy 3 Comments
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Danie Roy

After writing my “just the facts” post on the ECJ ruling against patenting of certain stem cell research, I did some more leisurely reading on the topic. It seems that the reactions have two tones: “IT IS THE END OF THE WORLD” and “ABOUT TIME.” Oddly enough, both reactions appear to be based on the same misconceptions of the ruling. Of course, after reading all the extreme reactions, I realized I had to discuss the topic a little more.

First, I’d like to address the misconception with the reality a little more emphatically: embryonic stem cell research is not banned in the EU. The ruling stated that such research cannot be patented if it destroys the embryo.

Vodka might work, but, again, don't try it at home.

I have to emphasize embryonic because, on the extreme side, some believe that all stem cell research has been banned. Not so. There was absolutely no ruling regarding adult stem cell and induced pluripotent stem cell (iPSC) research. And, again, the research was not banned, just ruled to be unpatentable. Some things just aren’t patentable, like potatoes. If, however, I find a particularly special use for potatoes, say, as a jewelry cleaner (please don’t try this at home, I’m not going to be responsible for your tubered jewelry), I could certainly get a patent on a method of using potatoes to clean jewelry. So, the question is, does the same principle work here?

The answer is… maybe. So far the patents in question appear to have been worded in such a way as to attempt to patent the stem cells themselves and their extraction. We’ll see how things shape up as registered practitioners try to draft around this ruling.

This is what it is about.

So, why the extreme reactions? Well, many are equating “not patentable” with “not profitable.” The logic here is, if the invention isn’t patented, the market isn’t cornered. If the market isn’t cornered, the invention won’t make lots of money. If the invention won’t make lots of money, why invest? If nobody invests, why do research?

While this line of thought makes some sense, it’s only partly right. See, some researchers are actually getting a little excited about the ruling, because this means the cost of research goes down: if there aren’t any patents on production, getting the tools to make therapies is cheaper and easier. And if the therapies themselves can be patented (we don’t know yet), then this ruling may be the best thing to happen for people hoping and waiting for stem cell therapies. Keep in mind that this does not apply to adult stem cell research and iPSC research, which are believed to have a much lower chance of immune system rejection when applied therapeutically. Stem cells are part of a very young science, though, so only time will tell.

Keep in mind, even though this kind of research isn’t patentable in the EU, it IS patentable in other countries, such as the US and China. The research is profitable SOMEWHERE, so there will be backers, and some of them will still be European. In short:

How do you Dilute a Trademark Part II

Saturday, 29 October, 2011 11:54 Written by Rene Dial 0 Comments
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By Rene Dial

Last week I talked about trademark dilution and opened up the discussion of “blurring.”  No it is not the newest Marvel super-hero movie it is actually a trademark term.  Blurring happens when a name has associations other than the product the trademark was intended for.  For example if I asked you for an apple 20 years ago there would be no doubt in your mind I was talking about the fruit.  Today if I tell you I want an apple it would be hard to ascertain whether I was asking for the fruit or a computer.  If  Fruit Inc.’s trademark was “Apple” then the computer company is blurring your association with the fruit’s trademark and diluting the mark even though the goods are totally unrelated.

15 U.S.C. 1125 (c) (2) (B) For purposes of paragraph (1), “dilution by blurring” is association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark. In determining whether a mark or trade name is likely to cause dilution by blurring, the court may consider all relevant factors, including the following:

(i) The degree of similarity between the mark or trade name and the famous mark.

(ii) The degree of inherent or acquired distinctiveness of the famous mark.

(iii) The extent to which the owner of the famous mark is engaging in substantially exclusive use of the mark.

(iv) The degree of recognition of the famous mark.

(v) Whether the user of the mark or trade name intended to create an association with the famous mark.

(vi) Any actual association between the mark or trade name and the famous mark.

The Trademark Dilution Revision Act of 2006 is intended to protect a famous mark from the type of blurring I discussed above.  The big question here is how the courts are going to interpret distinctiveness and the definition of a famous mark.  We know what the courts have held previously when addressing these questions however, are those interpretations going to fit into the TDRA of 2006 and protect truly famous marks from dilution.

Next week I will address dilution by tarnishment.

Have a great weekend!

 

Copyright Troll Righthaven Sues Over Copyright Not Owned by Plaintiff, Loses Case and Dignity

Thursday, 27 October, 2011 17:02 Written by Scott Nyman 1 Comment
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Scott Nyman

 

Anyone who frequently reads this blog will not be shocked to learn that I’m not a fan of trolls. I focus most of my dislike of trolls toward the patent trolls that undermine the purpose of the U.S. patent system. However, I also dislike the unscrupulous copyright trolls that harass seemingly random citizens for quick settlements. Don’t get me wrong, if a person owns a copyright for a creative work of art, he or she has every right to enforce those rights. However, in the case of Righthaven v. Thomas DiBiase, the notorious copyright troll (Righthaven) sued DiBiase for the a copyright not actually owned by the plaintiff!

Generally, copyright litigation against a regular bittorrent downloader, we’ll call him Joe, goes something like this. Joe downloads a song from The Pirate Bay. A record company sniffs the download to find that the song has been downloaded from an IP address. The record company sues Joe as a John Doe, hoping to get a subpoena to locate Joe from his IP address. The record company, through their undersigned counsel, then sends Joe a nasty-gram demanding a payment of, let’s say, $2000 to make this whole things go away or face federal litigation. Joe, terrified of going to jail (even though he almost certainly wouldn’t be imprisoned over copyright infringement), pays the demand and then quickly deletes his bookmark to The Pirate Bay.

Every now and then, a defendant takes a different route and fights the allegations. Thomas DiBiase chose to fight Righthaven, which uncovered that Righthaven did not even own the copyright-at-suit! The court awarded DiBiase nearly $120,000 in attorneys fees and cost relating to his defense of this absurd litigation.

Now, you may ask, how can an attorney file a lawsuit in federal court for a copyright her client doesn’t even own? The short answer, he can’t. Rule 11 of the Federal Rules of Civil Procedure includes:

By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Attorneys that practice in this matter, filing baseless lawsuits, are a stain on the reputation of the legal profession. Whether the filing of the Righthaven lawsuit was  intentional abuse of the legal system or due to gross incompetence, this lawyer should be sanctioned. There are enough lawyers that we don’t need ones. But that’s just my two cents.

 

Read more:

Ars Technica

 

 

 

Slide to Unlock Patent Granted to Apple

Wednesday, 26 October, 2011 09:18 Written by Aaron B. Thalwitzer 1 Comment
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That sound you just heard was the jaws and share prices of iPhone competitors dropping. Yesterday, the USPTO granted a patent to Apple for the now-ubiquitous “Slide to Unlock” feature which many smartphones have nowadays. Steve Jobs implied that the feature was designed and implemented to prevent what amounts to butt-dialing (of which, BTW, I am a repeat victim, having a name Aaron with two As). Apple filed back in 2005, so it took over 6 years to be granted.

Here’s the abstract for patent #8,046,721:

A device with a touch-sensitive display may be unlocked via gestures performed on the touch-sensitive display. The device is unlocked if contact with the display corresponds to a predefined gesture for unlocking the device. The device displays one or more unlock images with respect to which the predefined gesture is to be performed in order to unlock the device. The performance of the predefined gesture with respect to the unlock image may include moving the unlock image to a predefined location and/or moving the unlock image along a predefined path. The device may also display visual cues of the predefined gesture on the touch screen to remind a user of the gesture.

Is this prior art? In the Netherlands it is. A Dutch court recently invalidated the patent based upon the 2004-2005 “Neonode N1m, with a similar feature/device. (video here, see around the 4:00 minute mark).

I would bet dollars to donuts that litigation is imminent and will commence basically as soon as everyone gets their ducks in a row. Apple won a nifty prize, one which could allow it to maintain a name brand type of product to distinguish itself from and cast a generic light upon its competitors. As has been well stated elsewhere, Windows 8 is a potential infringer, as is every Android device. Cry havoc and let slip the dogs of war! Julius Caesar Act 3, scene 1, 273.

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