Posts in Guest Contributors

While we tend to think of Las Vegas’ tourism-based economy as built on gambling, trade shows also bring hundreds of thousands of visitors to the city each year. Thus, the issue of effective enforcement of the patent laws at these trade shows becomes entwined with the health of the city’s economy. Against this backdrop, the Las Vegas bench of the U.S. District Court for Nevada has developed a muscular set of equitable remedies for U.S. patent holders who complain to the court of patent infringement by a trade show exhibitor, remedies that the court can and does deploy with sufficient speed to be effective within the narrow timeframe of a trade show.

For hoarders, once an item comes into their possession, such individuals develop an unreasonable emotional attachment to it. As these possessions, many of which are viewed by others as worthless, continue to accumulate, they become both a health and safety hazard to the hoarders and those about them until some concerned party, typically a family member or a governmental authority, intervenes. Much the same problem is found in some managers of patent portfolios.

The first meeting this week was in Grundy Center, IA, during which a question about patent reform was asked. Grassley answered that he was trying to stop patent trolls, which he described as a person who buys up patents but never intends to build a product, and then sends threatening letters to small businesses demanding thousands of dollars or they will get sued. Notably, he said that it costs our economy $83B per year.

On November 2, 2015, San Francisco-based Fitbit Inc. filed a Section 337 complaint with the International Trade Commission (ITC) against AliphCom (d/b/a Jawbone) and BodyMedia, Inc. (Investigation No. ITC-337-3096). In a parallel proceeding in the U.S. District Court for the District of Delaware, Case No. 1:15-CV-00990, Fitbit alleged infringement of three patents assigned to Fitbit—namely, U.S. Patent Nos. 8,920,332 (titled Wearable Heart Rate Monitor); 8,868,377 (titled Portable Monitoring Devices and Methods of Operating Same); and 9,089,760 (titled System and Method for Activating a Device Based on a Record of Physical Activity). According to the district court complaint, Jawbone’s products associated with components of its UP series of trackers indirectly infringe the patents-at-issue. Fitbit hopes that it will be successful in preventing the import and sale in America of wearable activity tracking devices sold by Jawbone by requesting the ITC to issue a limited exclusion order and a cease and desist order.

A case currently pending before the Federal Circuit is anticipated to provide greater guidance into the answer to this question, namely, how district courts should determine whether a claim is directed to an abstract idea. The case, McRo, Inc. v. Bandai Namco Games America, No. 2015-1080, recently heard oral argument on December 11, 2015. The panel’s questioning indicated that its anticipated decision may provide greater insight into how district courts are to determine whether a claim is, in fact, directed to an abstract idea. The patents are directed to automatic three-dimensional lip-synchronization for animated characters. Whereas prior art lip-synchronization required manually synchronizing an animated character’s lips and facial expressions to specific phonemes, the patents are directed to rules for automating that process.

Libertarians believe in property rights and government protection of those rights as one of the few necessary requirements of government. Ownership of property and free markets leads to competitive production and trade of goods, which in turn leads to prosperity for all of society. Intellectual property is property like other forms of property, and so government must protect IP as it protects other forms of property because it too leads to competition and trade and prosperity. Libertarians should encourage a strong patent system and object to any “reforms” that limit intellectual property ownership or introduce more government regulation than is required.

According to Thomson Reuters 2015 list of Top 100 Global Innovators, Amazon and several other established players in mature markets are proving that it’s not just start-ups that have the potential to upend traditional business models and reinvent our world. In fact, several of the companies new to this year’s ranking of top innovators have been around a lot longer than Amazon, among them: Boehringer Ingelheim, Chevron, Exxon Mobil, Johnson Controls, Thales, and Yamaha.

This year our panel has a diverse variety of wishes. We see the usual wishes relating to patent eligibility and the abstract idea exception, with a reference to a Moody Blue’s song to make the point. We also see wishes relating to inter partes review (IPR) and the biotech industry, and a wish for uniformity at the Federal Circuit. There is a wish for federal trade secret legislation to finally pass, and a reminder that elections matter, even for us in the intellectual property space, a topic that we will return to quite a lot during 2016 here at IPWatchdog.com. We also see several exasperated wishes, hoping for solutions to the real problems facing the industry rather than the same old tired cries for “reform” that would benefit only a handful of large entities while harming practically everyone else.

If Gene (the “genie”) were to grant me patent and IP wishes for 2016, I would ask for (in no particular order) the passage of trade secrets legislation, resolution of the current patent reform legislation stalemate in Congress, that the USPTO consider evidence of non-preemption during its initial determination of patent eligibility; and that the USPTO prioritize accuracy, completeness and accessibility of the public record as part of its Patent Quality Review.

So it now looks like this: if you are a patent owner and feel that your rights have been encroached upon, you now have to assume there will be a challenge to their validity by a potential licensee through an Inter Partes Review (IPR). If you are one of the lucky few (~25%) who survive such a challenge with at least one valid patent claim, you then have to expect an appeal. Assuming you win that appeal, then the real court battle starts in earnest and you’ll have to face what has now become a $3-5M ordeal in legal fees to get through a full trial on the merits and the routinely filed appeal should you beat all odds and win. Treble damages for willful infringement have been rarer than a dodo bird sighting and even winning does not mean you will collect your money any time soon, as the Apple-Samsung saga has recently shown.

Over the last decade, there has been a movement among the software developer community to employ some form of “agile development” rather than the traditional software development methodology. The belief is that these agile methodologies lead to higher quality software and faster development cycles. More recently, the implementation of agile software development has transitioned not only from small startups to large companies, but also from enterprises developing noncritical, consumer apps to those developing software for medical, aviation, military, and financial systems, where the presence of errors pose high human or economic risk. With these transitions, intellectual property (IP) law practitioners must adopt their traditional lawyering approaches to capturing and securing IP (especially patent) rights. A failure to recognize and adapt to the agile software development environment will result in a failure of IP law practitioners’ essential job function—helping to create or sustain client profitability and enable long-term business growth.

On December 18, 2015, several amici filed a brief in support of appellants in Netflix, Inc. v. Rovi Corp. et al., No. 15-1917 at the Federal Circuit. The amici Broadband iTV, Inc., Double Rock Corporation, Island Intellectual Property, LLC, Access Control Advantage, Inc., and Fairway Financial U.S., Inc. are all former practicing entities and patent holders that built, developed, and commercialized computer-implemented technology and maintain an interest in the patented results of their research and development that solved real world problems faced by their respective businesses. The district court found the five patents-at-issue in this case, generally relating to video-on-demand technology, patent-ineligible as allegedly directed to the abstract ideas.

Earlier this month, Napa Valley Vintners (NVV), the nonprofit trade association that works to “promote, protect and enhance the Napa Valley appellation,” became the first wine group in the U.S. to be granted a certification mark registration. So-called certification marks are a unique species within the trademark law, functioning to “certify” the nature or origin of goods or services, rather than merely convey the producer of those goods or services.

Yesterday the Federal Circuit in an en banc decision held that the portion of Section 2(a) of the Trademark Act, which bars federal registration for trademarks that are disparaging, is unconstitutional under the First Amendment. The government advanced three principal arguments for why §2(a) did not violate the First Amendment: (1) because §2(a) does not “prohibit” or suppress speech at all; (2) because trademark registration is government speech; and (3) because §2(a) merely withholds a government subsidy. The Court rejected all three of the government’s arguments, and in doing so issued holdings on three separate issues that have divided other tribunals.

A computer is a machine, yet there is an ongoing trend to “anthropomorphize” computers. That is: functions that are performed by humans are said to be able to be performed by computers. Anyone who has done any serious programming knows that is not how it works. Let me explain. Steps that humans can do almost mindlessly, for instance changing paragraph numbers in a text, may be excruciatingly difficult as programming steps. That is because computers are machines that process signals that follow very strict and inflexible routines that have no concept of what the signals mean.