Archive for December, 2011

Louis Vuitton Files Trademark Suit Over the Hangover II.

Saturday, 31 December, 2011 09:52 Written by Rene Dial 0 Comments
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By Rene Dial

I have heard a lot of on the edge lawsuits before but I believe this one has jumped over the edge and landed on its head.  According to the Guardian.co.uk, Louis Vuitton filed a federal trademark suit against Warner Bros over the line in the Hangover II “careful, that is a Louis Vuitton.”  To be honest I saw the movie, my brother and brother in law saw the movie and at no point in time have I heard them or any of my friends use that tag line.  To give a little background, our group of friends, quote movie tag lines a lot.  So much that it can become quite annoying at times.  The main comment and the funniest and most disturbing parts of the movie is trying to figure out what the monkey is playing with towards the beginning.  I will spare you and not go into details.

I was able to locate a copy of the complaint at paidcontent.org.

One of the first allegations that jumps out is Louis Vuitton’s claim that they did not approve Warner Bros’ use of any products bearing the LVM marks or any products bearing knock-off monograms.  It is a scary thought to think that every time someone wears a pair of jeans, shoes, socks, or virtually every item used in life then used in a movie the company can be sued because the item was not approved prior to the movie.

Louis Vuitton can make an argument that Warner Bros’ directly used the name of the bag in the movie.  If the entire movie was about a Louis Vuitton bag and it was the notoriety of the bag that drew crowds to the theater to see the movie and Warner Bros’ profited by their use of the mark we would have a different situation.  This is not the case here.  The mention of the bag is no more than a parody.  Are they making fun of the bag that it is so delicate and expensive or are they making fun of the character by showcasing his eccentric character.

Louis Vuitton’s fight is with Diophy not Warner Bros’. If anything Louis Vuitton should have paid to have their bag featured as a tag line in the movie or have Warner Bros’ buy a LV bag to compensate them for the lost profits of the one bag.  That kind of advertising is expensive.  Look at all of the advertising that they are getting by filing this lawsuit albeit bad advertising but still advertisement.  Makes you wonder if hiring an attorney, filing a complaint for around $400.00, and making a fuss gets you hundred of thousands of dollars in advertising?

Have a safe and happy New Year and let’s make 2012 the best year ever.

Be safe tonight!!

A Refresher on “Patent Pending”

Thursday, 29 December, 2011 09:11 Written by Scott Nyman 0 Comments
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Scott Nyman

 

Not quite a year ago, I posted an article about the term, “patent pending” and its sufficiency towards protecting your invention. Since that time, I’ve had a good number of people ask me just what the term means. I’ve also had people ask me, “so now that my patent is pending, I can sue people?” It seems the demand for these answers is high, so a refresher on “patent pending” seems appropriate.

Let’s start with the basics. What exactly does “patent pending” mean? The term “patent pending,” or something similar such as “patent applied for,” is used by a manufacturer or seller of an article to inform the public that an application for patent on that article is on file in the United States Patent and Trademark Office. Use of these terms should not be abused, for example by printing “patent pending” on a product for which no patent application has been filed. The law imposes a fine on those who use these terms falsely to deceive the public.

However, just because a searching party cannot locate a patent application on the invention through popular searches, such as Google Patents or the USPTO website, does not mean that no patent application is pending. Most patent applications filed on or after November 29, 2000, will be published 18 months after the filing date of the application, or any earlier filing date relied upon under Title 35, United States Code. Otherwise, all patent applications are maintained in the strictest confidence until the patent is issued or the application is published.

Once a patent application has been filed with the US Patent and Trademark Office, the disclosed invention may be considered “patent pending.” This holds true for both provisional and non-provisional patent applications. Provisional patent applications are not examined by the USPTO for patentability, but provide a disclosure of the invention with enough sufficiency to receive a filing date.

Non-provisional applications are examined by the USPTO, and may result in the issuance of a patent. In order to have any patent protection, an inventor is required to file a non-provisional application. To keep the filing date of a provisional patent application, an applicant is required to convert the provisional patent application into a non-provisional patent application within one year of filing the provisional.

So, can you sue if you believe someone is infringing on your patent pending invention? Not just yet. In short, the USPTO states, “These phrases have no legal effect, but only give information that an application for patent has been filed in the Patent and Trademark Office. The protection afforded by a patent does not start until the actual grant of the patent. False use of these phrases or their equivalent is prohibited.”

The term “patent pending” describes the period between the filing of a patent application with the USPTO and the final disposition on the application, which may include abandonment, rejection, or allowance of the application. Having a “patent pending” status does not afford an applicant any patent protection, it simply puts would-be infringers on notice that they may be subject to a lawsuit if the application issues into a U.S. patent.

Furthermore, 35 U.S.C. 287 provides the notice requirements for issued patents, stating, “In the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice.”

By providing notice to the public that your invention is in the process of potentially receiving patent protection, you are providing notice that continued potentially infringing conduct related to the applied-for invention may result in patent infringement. Although patent protection may not begin until the date a patent is issued, including a notice that such date is pending may help allow an inventor claim satisfaction of the notice requirement being met close to the actual date issue date of the patent, so long as the inventor promptly complies with the patent marking requirements of 35 U.S.C. 287.

However, the courts have routinely decided that “patent pending” alone is insufficient to support a finding of willful infringement. The Federal Circuit has stated, “A patent pending notice gives one no knowledge whatsoever. It is not even a guarantee that an application has been filed.  Filing an application is no guarantee any patent will issue and a very substantial percentage of applications never result in patents. What the scope of claims in patents that do issue will be is something totally unforeseeable.” Conopco, Inc. v. May Dep’t Stores Co., 46 F.3d 1556, 1562.

IBM Patents Getting Paid to be Healthy

Wednesday, 28 December, 2011 23:46 Written by Danie Roy 0 Comments
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Danie Roy

Before you start pounding your head against a desk, this may actually have some merit for discussion. Let’s face it, we didn’t want to eat right when we were young, so why can’t IBM patent getting a working system? Well, I’m not entirely sure if this is a new idea, but I know I’d like to get some green for eating greens.

For instance, “Eat your vegetables if you want dessert!” isn’t an uncommon thing to hear at a family dinner table, and operates on the same principle: eat right, get rewarded. The only difference is now there’s money involved instead of sweets. The new patent appears to have a computer tracking program for all this attached… not unlike some fitness tracker apps you can download for your smart phone.

You can see why I’m wary, but if this cuts down on healthcare costs and shortens the wait time at the doctor’s office, I’m not complaining.

I Got Sued By A Copyright Troll, Part IV: Discovery Shenanigans

Monday, 26 December, 2011 05:55 Written by Aaron B. Thalwitzer 0 Comments
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We’ve discussed the basics of pre-suit strategy, defenses both procedural and on the merits. Now let’s follow these cases through their usual trajectory to try and answer a common question: “What if I don’t settle AND the troll obtains my identity from my ISP?” We know that the IP address often leads to a rabbit hole of defenses, so where will they go next? Surely they don’t expect a defendant to personally admit to infringement — in fact, the defendant may assert his or her Fifth Amendment right not to incriminate him or herself, since there are potential criminal penalties for copyright infringement. But there are other ways to discover what’s lurking in a defendant’s closet, so to speak.

I will rule out depositions, requests for admissions, and interrogatories, since the Fifth Amendment may be asserted in most of these cases. (But note that in civil cases, there is no Constitutional prohibition on inferring a reasonable adverse inference from a party’s invocation of the privilege.  This is the subject of many a law review article, the telling of which I will mercifully spare you. See Baxter v. Palmigiano, 96 S. Ct. 1551 (1976).). The trolls will serve requests for production of documents, inspections of defendants’ computers and other digital devices, and subpoenas to produce documents and other things. It’s asking a lot from a judge to inspect all connected devices in a home after already having asked for the identities of defendants based solely upon an IP address and the name of the ISP account holder (the “subscriber”). It’s not that it’s unusual to inspect hard drives the like, but to do all this without even knowing who did it is pushing the limits of most judges willingness to exercise their sound discretion. Even if such discovery is ordered on an expedited basis, it only takes a few minutes to destroy a computer, as one alleged doe defendant reportedly said he’d do. Without inspecting the connecting devices, the troll will probably find it very difficult to prove the infringer’s identity.

This begs the question: Why do the demand letters demands thousands of dollars from  YOU (the subscriber) pay thousands of dollars for the infringement that YOU, if the troll, even with the identity of the subscriber, is still unable to determine who is responsible?

Early discovery, that is, generally, before a Rule 26(f) conference, discovery is only granted in limited circumstances. “As a general rule, the use of “John Doe” to identify a defendant is not favored. However, situations arise . . . where the identity of alleged defendants will not be known prior to the filing of a complaint. In such circumstances, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.” See Gillespie v. Civiletti, 629 F. 2d 637 (9th Circ. 1980). The truth is, judges could go either way on this.

For reasons already discussed, if you get a subpoena from your ISP, call a lawyer! (unless you don’t mind being forever attached to a copyright infringement lawsuit related to porn).

 

Christmas, Patents, and Icicle Lights

Saturday, 24 December, 2011 18:18 Written by Rene Dial 0 Comments
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By Rene Dial

Christmas is upon us and that fact of life for most people is having to store all of the holiday decorations.  Even better storing them so that they are of some use next year and not broken or tangled up.

A popular item of Christmas decoration are icicle lights.  Storing icicles lights are such a pain in the @$%.  No matter what you do the dangling lights are going to get interwoven with the rest of the string.  You can try wrapping them like an extension cord around your elbow moving up in a circular motion between your thumb and pointer finger.  The next thing I have tried is wrapping them around a spindle  such as the plastic holder from string.  None of these methods work and the next year we spend hours cursing and pulling during what is supposed to be one of the happiest times of the year.

To help alleviate some of the stress inventors have been at it trying to invent the perfect storage device for icicle lights.  How about an icicle light string carrier?  This carrier works by wrapping the wire around a spindle leaving the “icicle” portion of the lights dangling. Question now is can you hold it till next Christmas or when you lay it down will the icicle portion become entangled?

The next invention is similar to the previous one in that the lights are left dangling to allow the icicle portion of the light string to hang and prevent them from entangling.  This device works by connecting the string then rotating the lever at the top until the lights are wound around the spindle.  This invention also has a base allowing for storage in an upright position.

Needless to say that since the invention of icicle lights and Christmas lights in general man has always sought a better way to store them.  For now I will continue with the wrap around the arm technique.  Saves me money and storage space because let’s be real  who wants to find a place to store their storage device.

Let’s all have a very Merry Christmas and a safe holiday!

Enjoy the long weekend!

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