Archive for April, 2011

Guest Editorial – Congress Needs Your Input About the Proposed Patent Law

Saturday, April 30th, 2011

USPTO Seal David E. Boundy, Vice President, Assistant General Counsel Intellectual Property at a well-known financial services firm, in Boston MA, has asked patent practitioners around the country to post information about the patent bill now in its final stages of consideration by the U.S. Congress.  The  patent lawyers at Lipton, Weinberger & Husick have regularly devoted space to this topic in our monthly newsletter.  Because the stakes are so important, we have agreed to reproduce Mr. Boundy’s letter in full.  Although directed to attorneys, anybody with an interest in the U.S. patent law — that includes inventors, small businesses, technology companies and citizens — should also take heed.  Here is Mr. Boundy’s letter:

Dear fellow patent attorney:

I need your immediate assistance to help defeat a particularly bad patent bill now in its final stages of consideration by the U.S. Congress. You have seen the blogs and emails explaining how the America Invents Act (formerly the Patent Reform Act of 2011) will dismantle our carefully-balanced patent system, the system that has made America the innovation engine for the world. The bill is bad for America, bad for your clients, and bad for you as a patent attorney. Other countries innovate at half our rate. The multinationals want to “harmonize” our laws with those unsuccessful systems for their own convenience. This bill imposes about $1 billion in costs by taking away options that domestic American businesses use, to save a comparatively trivial amount for the Patent Office and a small number of multinational corporations.

The appendix to this letter outlines the proposed law and how it will significantly damage our clients, our profession, and our country.

Because this bill has passed the full Senate and the House Judiciary Committee, it could be enacted within weeks. The big multinational corporations have plowed untold sums of money into lobbying, and have the bill they want. It’s essential that Congress hear from domestic American businesses and inventors, and hear from them now. Congress desperately needs to learn from small businesses and startups how they actually use the patent system to create new products, jobs, and wealth.

Congress is on recess until May 2, and your Representative will be in your district. This is your best opportunity to inform your Representative that this bill will destroy American jobs by making it impossible for startups, small companies, and university spinoffs to protect the inventions they create, to obtain the funding they need to commercialize their inventions, and to earn the profits they need to grow new R&D-intensive businesses.

The “Asks”

Go to www.house.gov to find your Representative’s contact info. To schedule a meeting, many offices will want you to FAX in a request letter. Second best is a phone call to your district office (not the D.C. office). Third best-and far less effective, but better than nothing-is an email. www.reformaia.org can help you with some of these contacts.

Ask your clients to join you at a meeting, or at a minimum, to call or write. This letter is accompanied by a “script” you can give to clients for them to make their calls. Your representative should simply vote the bill down-overall, the bill does more harm than good, regardless of any other changes that might be incorporated.

If you live in Ohio, call Governor Kasich’s office, (614) 466-3555. Point out that the governor’s $700 million Ohio Third Frontier jobs program cannot work, and that the Innovation Ohio Loan Fund will be not be repaid, if the federal Patent Act is changed to deter investment in university spin-offs and startups, and to make it harder for new businesses to succeed.

Please take the opportunity to meet or phone, or at least email your Representative. (A phone call has several times the weight of an email, and a meeting will have many times the impact of a phone call). You will be more likely to get a personal meeting, and you will have far more impact, if you as an attorney bring one or two of your clients with you. Stay away from patent jargon, because the person you talk to will almost certainly know nothing about patent law. It’s crucial that you discuss the effects of the bill in terms of destruction of innovation, jobs, start-up businesses, and the like, issues that a Representative or staffer can relate to. Urge your clients to join you for a meeting.

It’s crucial to act now. Please help preserve our gold standard patent system, one of the biggest engines of job growth in the U.S., and part of the reason U.S. attorneys can create so much more value for their clients than our counterparts in the countries to which Congress proposes to “harmonize.”

David Boundy

Boston MA

(212) 294 7848, PatentProcedure@gmail.com

Social Scientists Confirm What We Already Know — Branding May Be Superficial, but it is Effective

Saturday, April 30th, 2011

R symbolIf you needed confirmation about the value and power of branding, here’s what the the latest research into evolutionary biology has to say about it. The Economist recently reported that two researchers at Tilburg University — Rob Nelissen and Marijn Meijers — discovered that brand indicators may be more powerful than previously imagined.  The results of their research are to be published in a forthcoming issue of the Journal of Evolution and Human Behavior.

According to The Economist, the researchers performed various experiments aimed at learning the influence of prestigious brand clothing as suggested by their logos. Here’s what they discovered. In one experiment, volunteer subjects were shown pictures of a person wearing a polo shirt that was digitally altered to include no logo, a designer logo (Lacoste or Hilfiger), a non-luxury logo, or no logo at all.  The subjects were asked to rate the status and wealth of the person wearing the shirt. When the designer logo appeared, the subjects rated the person as a higher status and wealthier than if no logo were present.

In a similar experiment, used to verify the findings of the first experiment, a female assistant asked people in a shopping mall a series of survey questions. On some days she wore clothing with the designer logo and on other days she wore the exact same clothing with no logo. When she wore a logo (Tommy Hilfiger), 52% agreed to take the survey; when she wore no logo, only 13% agreed.

In yet another experiment, volunteers watched two videos of the same person being interviewed for a job. When the interviewee wore a shirt with a designer logo, the observers rated him as  more suitable for the job and even agreed to pay him a 9% higher salary.

According to The Economist article, designer logos also affected charitable contributions. The experimenters found that women seeking to collect charitable donations, received 34 Euro cents more when they wore designer clothing than when their clothing was logo-less. According to the researchers, it’s all about signals.  Designer labels signal underlying quality analogous to the function of a peacock’s tail.  The “peacock with the best tail gets all the girls.”  To further test this phenomenon, the Tilburg researchers did the following experiment:

“Each volunteer was given €2 in 10 cent coins and told he (or she) could transfer as much as desired to an unseen partner, and that any amount transferred would be doubled. If both partners transferred all of their money, each would end up with €4. But because there was no guarantee that the unseen partner would give back any money at all, players tended to hedge their bets, and transfer only some money.”

“When shown a picture of their purported partner wearing a designer shirt, volunteers transferred 36% more than when the same person was shown with no logo (95 cents, as opposed to 70 cents). But when told that the partner was wearing a shirt given by the experimenters, the logo had no effect on transfers. The shirt no longer represented an honest signal.”

The study confirms another phenomenon, whereby a work of art is valued by the name of the artist believed to have created it, not the one who may have actually been the artist.  The tendency for humans to make superficial judgments about quality opens the door to counterfeiters.  “And people will willingly buy counterfeit goods, knowing they are knock-offs, if they bear the right label.”  Unlike Peacocks — no counterfeit tails here — humans have not evolved a way to accurately determine underlying quality.  Until they do (in a few million years), marketers rejoice.

– Adam G. Garson, Esq.

Trade Secret Theft is a Crime

Saturday, April 30th, 2011

jail birdAs Mike Yu learned, industrial espionage can earn you hard time.  Mr. Yu is a Chinese national with permanent residency status in the U.S.  He worked as an engineer for Ford Motor Company for ten years.  Before departing Ford in 2007, Mr. Yu purloined computer files containing several thousand of Ford’s sensitive documents, including design documents relating to engines, transmissions and electrical power systems.  He shopped the computer files to four Chinese auto makers as part of a job search and eventually worked for two of the Chinese auto makers.

Mr. Yu was arrested in 2009 upon his return to the U.S.   He subsequently pled guilty to two counts of theft of trade secrets.  On April 12, 2011 the U.S. District Court for the Eastern District of Michigan sentenced Mr. Yu to almost six years in Federal prison.  In the sentencing memorandum, Mr. Yu agreed that the stolen trade secrets were worth between 50 and 100 million dollars.   Mr. Yu’s conviction and sentence are cold comfort to Ford, whose trade secrets still are in the hands of its competitors.

– Robert Yarbrough, Esq.

Ask Dr. Copyright: The Death of a Copyright Troll?

Saturday, April 30th, 2011

copyright question

Dear Dr. C,

I heard that a copyright troll died recently…what’s the scoop?

Sincerely,

Morbidly Interested

Dear Morbidly,

Righthaven LLC is a company that has brought hundreds of law suits for copyright infringement against web sites, bloggers, and mainstream media companies that have used content from the Las Vegas Review Journal.  Quotations as small as one sentence, even when properly attributed to the Review-Journal, have brought demands for payment and federal suit from Righthaven, which alleged that it owned the rights to the paper’s morgue (archive of past issues.)  Reportedly, Righthaven has received payments to settle these suits that total several hundred thousand dollars.

In a legal counterattack, Democratic Underground, a target of a copyright claim by Righthaven, used discovery to gain access to the agreement between the newspaper publisher and Righthaven.  (Righthaven LLC v. Democratic Underground LLC, Civ. Action No. 2:10-cv-01356, D. Nevada.)  That agreement granted Righthaven LLC only the right to sue, but not ownership of the copyrighted works.  United States District Judge Roger Hunt ordered publication of the agreement, and those that have been sued by Righthaven have now been given the tool to bludgeon the troll.  You see, under existing law, having a bare right to sue is not sufficient basis for standing before the court, and each defendant may now move to have cases dismissed on that ground.  Expect to see a LOT of motions filed.

This leaves the fundamental question of what constitutes fair use of a newspaper’s content in today’s digital world.  Is it sufficient to include the link (URL) with the text of the story posted or emailed?  Is it permissible only to post the link itself?  Is there some middle ground?  Unfortunately, Congress was very vague about what would be considered “fair use” when it wrote the Copyright Statute, and our courts have not provided much precision in the more than thirty years since.  This important question must be answered, but it may take many more cases, at great cost in time and expense, before we have a workable and consistent answer.  For now, the safe course is to quote only a few sentences, at most, and provide a reader with the opportunity to view the original article using a link (such as, “To read the rest, click here…”)

Is Righthaven LLC totally out of business?  Not yet, and our guess is that they will come up with a new agreement and be back in court before the ink is dry.  Word to the wise: quote carefully, and if at all possible, do not quote that paragon of journalistic excellence, the Las Vegas Review Journal.

– Lawrence Husick, Esq.

Charlie Sheen Parks his Nonsense with the Patent and Trademark Office

Tuesday, April 5th, 2011

Yes, folks, there may be method (a little bit) to his madness. Charlie Sheen has filed trademark applications for 24 trademarks.  All your favorite sayings: “violent torpedo of truth,” “that’s what winners do,” “park your nonsense,” “you’ve been warned,” “I’m not bi–polar, I’m bi–winning,” “defeat is not an option,” “duh winning,” and the list goes on, including his name, “Charlie Sheen”. All have been filed as intent to use applications, meaning that Charlie has yet to demonstrate to the Patent and Trademark Office that he is using his marks in commerce. He has disclosed a huge list of products and services, which he hopes his trademarks will be used to identify:  To take one example (VIOLENT TORPEDO OF TRUTH):

IC 009. US 021 023 026 036 038. G & S: ELECTRONIC DEVICES, NAMELY, CELLULAR TELEPHONES, CD PLAYERS, CASSETTE PLAYERS, DIGITAL AUDIO FILE PLAYERS, DVD PLAYERS, HEADPHONES, HAND-HELD PERSONAL DIGITAL ASSISTANT/ELECTRONIC ORGANIZERS; HAND-HELD UNIT FOR PLAYING ELECTRONIC GAMES; ELECTRONIC GAMBLING MACHINES, NAMELY, SLOT MACHINES WITH OR WITHOUT VIDEO OUTPUT; VIDEO GAME SOFTWARE; COMPUTER GAME PROGRAMS; VIDEO GAME MACHINES FOR USE WITH TELEVISIONS; COMPUTER GAME EQUIPMENT CONTAINING MEMORY DEVICES, NAMELY, DISCS AND CARTRIDGES; STAND-ALONE VIDEO GAMES AND VIDEOGAME CONSOLES; GAMING MACHINES; CASINO GAMES; VIDEO AND COMPUTER GAMES; GAMBLING MACHINES; RING TONES FEATURING MUSIC AND VOICE MESSAGES; PRERECORDED DISCS, TAPES AND DOWNLOADABLE AUDIOVISUAL MEDIA FEATURING SPOKEN WORD, SPORTS, MUSICAL, COMEDY, DRAMATIC AND THEATRICAL PERFORMANCES, COMEDY; MAGNETIC DATA CARRIERS, APPARATUS FOR RECORDING, TRANSMISSION OR REPRODUCTION OF SOUND OR IMAGES, RECORDING DISCS, AUDIO AND VISUAL RECORDINGS, PRERECORDED AUDIO AND VISUAL DISCS, TAPES AND DOWNLOADABLE MEDIA, EYEWEAR, PREPAID MAGNETICALLY ENCODED CALLING CARDS; ENTERTAINMENT SERVICES; PRODUCTION AND DISTRIBUTION OF RADIO AND TELEVISION PROGRAMS AND MOTION PICTURES; ENTERTAINMENT SERVICES, NAMELY, ARRANGING AND CONDUCTING LIVE PERFORMANCES FEATURING SPORTS, SPOKEN WORD, MUSIC; ENTERTAINMENT EVENT PRODUCTION SERVICES; MUSIC AND VIDEO PRODUCTION SERVICES; ARRANGING APPEARANCES BY CELEBRITIES; CONDUCTING EXHIBITIONS FEATURING LIVE PERFORMANCES BY SPORTS, SPOKEN WORD, MUSICAL, THEATRICAL, COMEDIC, AND DRAMATIC PERFORMERS; SCRIPTWRITING SERVICES FOR OTHERS; FAN CLUB SERVICES; OPERATING WEB SITES IN THE FIELD OF INFORMATION ABOUT SPORTS, SPOKEN WORD, COMEDY, MUSIC, CELEBRITY, AND ENTERTAINMENT; DISTRIBUTION OF AUDIOVISUAL MEDIA AND PUBLICATIONS, ALL FEATURING SPORTS, SPOKEN WORD, COMEDY, MUSICAL, DRAMATIC AND THEATRICAL PERFORMANCES. ENTERTAINMENT SERVICES, NAMELY, ARRANGING AND CONDUCTING LIVE CONCERTS, THEATRICAL EXHIBITIONS, CELEBRITY APPEARANCES, AND PRODUCING MUSIC, THEATRICAL PRODUCTIONS, TELEVISION PROGRAMS, MOTION PICTURE FILMS, AND INTERACTIVE MULTIMEDIA ENTERTAINMENT, ALL FEATURING MUSICAL, DRAMATIC, THEATRICAL AND COMEDY PERFORMANCES; ENTERTAINMENT SERVICES, NAMELY, SPORTS, MUSIC, TELEVISION PROGRAM AND MOTION PICTURE FILM PRODUCTION SERVICES, MULTIMEDIA PRODUCTION SERVICES; VIDEO GAME PRODUCTION SERVICES; INTERNET-BASED TELEVISION AND ENTERTAINMENT PROGRAMMING, NAMELY, THE PRODUCTION AND DISTRIBUTION THEREOF; INFORMATION SERVICES IN THE FIELD OF ENTERTAINMENT PROVIDED OVER THE INTERNET; PRERECORDED DISCS, TAPES AND DOWNLOADS, ALL IN THE FIELD OF SPORTS, SPOKEN WORD, MUSIC, DANCE, DRAMATIC, THEATRICAL, COMEDIC AND AUDIOVISUAL LONG- AND SHORT-FORM ANIMATED AND LIVE-ACTION ENTERTAINMENT; PROVIDING WEB SITES THAT FEATURE ENTERTAINMENT IN THE FORM OF MUSIC, FILMS, TELEVISION PROGRAMS, CELEBRITY AND ENTERTAINMENT NEWS, PERIODICALS, CARTOONS, COMIC STRIPS, ANIMATED AND LIVE-ACTION MOTION PICTURES AND SERIAL AUDIOVISUAL WORKS; EDUCATIONAL SERVICES; SOUND RECORDING STUDIO SERVICES; SONGWRITING AND MUSIC COMPOSITION SERVICES FOR OTHERS; PRODUCTION OF MUSIC, SOUND RECORDINGS, RADIO AND TELEVISION PROGRAMS; ORGANIZING EXHIBITIONS FOR COMEDY, SPORTS, MUSICAL, DRAMATIC, ARTS AND CULTURAL ENTERTAINMENT PURPOSES; PROVIDING ON-LINE INFORMATION RELATING TO THE AFOREMENTIONED ENTERTAINMENT SERVICES; PRODUCTION AND DISTRIBUTION OF ONLINE RADIO PROGRAMS AND PODCASTS; BAGS AND BAGGAGE, LUGGAGE, BACKPACKS, PURSES, WALLETS, SHOULDER BAGS, KNAPSACKS, HANDBAGS, COMPUTER CASES, CARRYING CASES AND ACCESSORIES FOR PORTABLE ELECTRONIC DEVICES INCLUDING FOR MOBILE TELEPHONES; LEATHER AND IMITATION LEATHER GOODS; BAGS; JEWELRY, KEY CHAINS, WATCHES; LINENS AND BEDDING; TABLECLOTHS; TOYS, GAMES AND SPORTING GOODS; PLAYTHINGS; GYMNASTIC AND SPORTING ARTICLES; ACTION FIGURES; VIDEO GAMES; PET TOYS AND PET ACCESSORY PRODUCTS; ORNAMENTAL NOVELTY BUTTONS AND PINS. TRANSMISSION OR REPRODUCTION OF SOUND AND IMAGES; HOUSEHOLD OR KITCHEN UTENSILS AND CONTAINERS; KITCHENWARES; GLASSWARE, DISHES, PLATES, CUPS, MUGS, SHOT GLASSES; FRAGRANCES, SOAPS, ESSENTIAL OILS, COSMETICS, BODY AND HAIR LOTIONS AND OILS, BATH GEL, NON-MEDICATED HAIR, SKIN AND NAIL PREPARATIONS, SHAMPOOS; PAPER GOODS; POSTERS, NOTE CARDS, NOTEBOOK COVERS, STATIONERY, BOOKS, MAGAZINES, COMIC BOOKS, GRAPHIC NOVELS, PUBLICATIONS, PERIODICALS, COMIC STRIPS, NEWSPAPERS AND NEWSLETTERS, OPERATING A WEB SITE FOR OTHERS FEATURING INFORMATION ABOUT SPORTS, SPOKEN WORD, MUSIC, FILM, TELEVISION, ANIMATION, COMICS AND CARTOONS, AND POPULAR CULTURE; OPERATING A WEB SITE FOR OTHERS FEATURING INFORMATION, SERIAL AND EPISODIC ENTERTAINMENT, GRAPHIC NOVELS, ANIMATED AND LIVE-ACTION PROGRAM CONTENT; PRINTED MATERIALS, RUBBER STAMPS, DECALS, DECORATIONS; NOTE BOOKS; BOOK COVERS; BINDERS AND SCHOOL SUPPLIES; INTERIOR AND EXTERIOR DECORATIVE STICKERS; MAGNETIC AND NON-MAGNETIC DECALS; POSTERS, CARDS, POSTCARDS, KEEPSAKES, PENS AND PENCILS; ONLINE PUBLICATIONS, INFORMATION SERVICES, BLOGS, WEB LOGS, ONLINE OPINION, TASTEMAKING AND NEWS FEEDS, MEDIA AND CONSUMER PRODUCT CRITICISM AND SHOPPING RECOMMENDATIONS VIA THE INTERNET; HOLIDAY AND CHRISTMAS TREE ORNAMENTS; CLOTHING AND WEARING APPAREL, FOOTWEAR AND HEADWEAR; MEN’S AND WOMEN’S CLOTHING, NAMELY, SHIRTS, SHORTS, JEANS, JACKETS, SKIRTS, SLACKS, BLOUSES, DRESSES, VESTS, COATS, SWEATERS, SCARVES, SWIMSUITS, UNDERPANTS, SLIPS, CAMISOLES, BRAS, NIGHTGOWNS, ROBES, SOCKS, HOSIERY. INFANTS’ AND CHILDREN’S CLOTHING, NAMELY, T-SHIRTS, SWEATERS, LONG SLEEVED SHIRTS, SHORTS, PANTS, JUMPERS, JUMPSUITS, OVERALLS, ONE-PIECE PLAYSUITS, PAJAMAS, SOCKS, DRESSES, SKIRTS; MEN’S, WOMEN’S, CHILDREN’S AND INFANT’S FOOTWEAR AND HEADWEAR; BELTS; LINGERIE, INTIMATES AND UNDERWEAR; SHOES AND BOOTS; PET APPAREL; GLASSWARE, DISHES, PLATES, CUPS, MUGS, SHOT GLASSES; FRAGRANCES, SOAPS, ESSENTIAL OILS, COSMETICS, BODY AND HAIR LOTIONS AND OILS, BATH GEL, NON-MEDICATED HAIR, SKIN AND NAIL PREPARATIONS, SHAMPOOS; MUSICAL INSTRUMENTS AND CASES THEREFOR; MICROPHONES; BAGGAGE, HANDBAGS, PURSES, CARRYING CASES FOR PERSONAL COMMUNICATION DEVICES AND FOR PERSONAL COMPUTING/AUDIOVISUAL PLAYBACK DEVICES; WALLETS, SHOULDER BAGS, COMPUTER CARRYING BAGS; LUNCH BOXES, CONTAINERS FOR BEVERAGES; FOOD AND BEVERAGES; RAW AND PREPARED FOODS; PET FOODS; PREPARED FOODS; CANDY; ALCOHOLIC AND NON-ALCOHOLIC BEVERAGES, VITAMIN DRINKS, FRUIT DRINKS, ENERGY DRINKS; DRINKING WATER; HOSPITALITY SERVICES; HOTEL SERVICES, TRAVEL AGENCY, TRAVEL PLANNING AND TRAVEL- AND ENTERTAINMENT-RECOMMENDATION SERVICES; BAR AND RESTAURANT SERVICES

Wow, the list is maddening!  Moreover, since it can take up as long as a year to obtain a trademark registration, Sheen believes he’s more than a flash in the pan. It will be interesting to monitor these marks to see whether he can capitalize on them, either directly or by licensing them to the many entrepreneurs who wish to capitalize off the current craze(y).