Posts in IP News

Fortune tech writer Jeff John Roberts, who penned this particular article, regurgitates Cloudflare’s claims that Blackbird “may be engaging in illegal fee-splitting arrangements with patent owners” simply because it is run by people who have experience as patent litigators. It’s true that Blackbird is staffed with many lawyers coming from leading firms in patent law like Fish & Richardson and Kirkland & Ellis, but Blackbird is asserting the patents on their own behalf. Although the patent owner gets a share of the revenues from patent assertion, there is nothing unethical about the arrangement. Because Blackbird is not a law firm and does not receive fees, there are no fees to split. But don’t tell that to the editorial staff at Fortune. They apparently don’t want something like fact to get in the way of a fake, juicy patent troll narrative that makes patent owners look like villains.

Early this October, Facebook announced a partnership with three entities that will be integrated with the Rights Manager suite to offer rights management as a service on the Facebook platform: Friend MTS; MarkMonitor; and ZEFR. These entities will reportedly enable more automation of Rights Manager services for content creators who are already enrolled in Facebook’s content protection program. The integration of Rights Manager with these new services is expected to take place over the coming months.

Even at ground level, where American courts in San Diego and San Jose are now being called on to apply the law laid out in prior court decisions to the particular facts of the smartphone chip market, the multipronged attack on Qualcomm’s patent licensing practices offers an unusually rich platter of meaty issues to feast upon for those who advise patent licensors and licensees. Leaving aside the implications for the smartphone industry and the market for cellular baseband processors that Qualcomm now dominates, the new precedents that will be set in court—if the parties don’t settle or a Republican-controlled FTC doesn’t withdraw its case—will have broad and deep implications for patent owners and users—much as the US v. Microsoft case has had since it was decided almost two decades ago.

In 2011, ReDigi Inc. introduced technology that effectively attempted to establish a secondary market for “used” digital music files, where owners who had legally downloaded music files from iTunes could sell the music that they no longer wanted.  In a nutshell, the system allowed the owner of a digital file to transfer the music to ReDigi’s cloud storage locker, from which ReDigi could then sell it to a willing buyer for a lower price than the cost of an “original” purchase from the iTunes Store.  When a sale was made, Redigi would retain 60% of the sales price, while the seller and artist got 20% each. Although the process of transferring a file from an owner’s personal computer to ReDigi required that it be reproduced on ReDigi’s server, the system removed the file from the owner’s personal computer as the file was moved.  Capitol Records, the copyright owner of many music files sold over the ReDigi system, sued ReDigi for copyright infringement, alleging that the company reproduced and distributed its copyrighted works without permission.

The media and political debate continues to rage: should new obligations be put on online platforms and other internet intermediaries to try to limit the availability of unlawful content online, and if so what should those obligations look like?… The combination of proposed Article 13 of the draft Copyright Directive and the Commission’s latest Communication will lead some to conclude that Europe is indeed moving away from protecting internet intermediaries. It certainly appears that the two developments would place a much greater onus on platforms than is currently the case. A fuller picture will be known in May 2018, when the Commission says the work of ensuring “swift and proactive detection and removal of illegal content online” will be complete, and the Copyright Directive in final form. But the direction European policy makers are heading in is already evident.

The modern public rights jurisprudence flows from Atlas Roofing in 1977 to Stern in 2011. Although the case law does not provide a straight line, there is a consistent pattern illustrating the clear constraints of administrative agency adjudication. These constraints include consent of the parties, due process and review by Article III courts. Without these elements, according to a continuous line of Supreme Court jurisprudence, administrative proceedings are illegitimate and unconstitutional. Stern is the governing precedence on the issue of the public rights doctrine, with the composition of the Court today substantially identical to that of the Stern Court.

This case was not your typical “cola war”, but rather involved TWIST, the well-known carbonated beverage brand which has been available in South Africa since the 1970s (originally as LEMON TWIST). Atlantic is the proprietor in South Africa of the TWIST, LEMON TWIST and DIET TWIST trade marks in relation to non-alcoholic drinks falling in class 32. PepsiCo applied to register the trade marks PEPSI TWIST and a PEPSI TWIST label, also in relation to non-alcoholic beverages in class 32… In finding in favor of Atlantic in the opposition, the Court felt it necessary to only rule on the issue of confusing similarity, ie. whether the proposed PEPSI TWIST trade marks were sufficiently similar to Atlantic’s trade marks to create a likelihood of deception or confusion.

IP partner, Nick Aries, who is currently based in Bird & Bird’s London office, along with Stefano Silvestri, partner and co-head of Bird & Bird’s International Corporate Group based in Milan, will relocate to San Francisco, giving US clients greater access to Bird & Bird’s international expertise in the same time zone.

Native American tribal sovereign immunity thwarts both of these dilatory infringer tactics and repositions the negotiation to where it needs to be – outside of the courthouse. The tribe can inform detailed information to the infringer of their infringement and offer to enter into licensing negotiations without fear of being subjected to a DJ Action. Thus, the tribe can inform the infringer of their infringement and unless the tribe sues the infringer, the infringer will not be able to play the litigious gamesmanship or file the unending and procedurally unfair PTAB procedures. In sum, sovereign immunity equalizes the bargaining power between the inventor and the infringer and sets the negotiation table fairly.

Today (TTOs) are increasingly being run by professionals who are experienced in startups, licensing, monetizing and have tremendous depth of technical knowledge in a variety of fields. But they are all waging a losing battle in an industry where 73% of the offices are losing money and an additional 16% just breakeven. It is not because of the efficiency of these offices, it is because of the underlying business model… But the impact of technology transfer on the US economy has been enormous. Since 1980 more than 5,000 startups have been created. From 1996-2013 technology transfer has contributed $518 billion on the US gross domestic product, and $1.1 trillion on the US gross industrial output.

Liquidity in markets for cryptocurrencies like bitcoin is opening a new door for musicians and athletes to issue digital tokens in exchange for money. The tokens are validated by blockchain, a public ledger used for the authentication of digital currency transactions, and backed by copyright, trademark or other IP assets… According to Naraghi, blockchain specifically is critical to the securitization of IP because it guarantees the validity of a transaction by recording the transaction on a main centralized register as well as a connected publicly distributed system of registers. The fact that data is embedded within a public network and updated with each transaction promotes transparency and prevents modification or corruption.

A multitude of changes to patent law and practice have altered the face of patent litigation in America. From patent venue decisions in district courts that seem to be inconsistent with TC Heartland, to Indian Tribes acquiring patents and asserting sovereign immunity, the patent enforcement and defense landscape has changed dramatically over the past few months. Amidst these changing times, please join Gene Quinn for a free webinar webinar discussion – Hot Topics in Patent Litigation – on Thursday, October 12, 2017, at 12pm ET. Gene will be joined by former ITC Commissioner F. Scott Kieff and Keith Grady, Chair of IP and Technology Litigation at Polsinelli.

On May 22, 2017, in TC Heartland LLC v. Kraft Foods Group Brands, LLC, 137 S.Ct. 1514 (2017), the Supreme Court held that patent venue is controlled exclusively by 28 U.S.C. § 1400(b), which restricts venue in patent cases to (1) where the Defendant resides, or (2) where the Defendant commits an act of infringement and has a regular and established place of business. The decision was immediately hailed by commentators as a significant break with past precedent… Despite the common perception of practitioners that the TC Heartland decision changed the law of venue in patent cases, the majority of district courts to address this issue have come to the opposite conclusion, finding that the decision merely reaffirmed existing law and could not excuse the failure to raise the defense earlier. The reasoning of these decisions is questionable, as is the refusal of these courts to recognize how dramatically TC Heartland changed the landscape for patent litigation.

On September 22nd, a reply brief for appellant Cascades Projection LLC was filed to the U.S. Court of Appeals for the Federal Circuit in a case over the validity of patents covering projector technologies which were invented by Gene Dolgoff, the creator of the Star Trek Holodeck. The appeal against Japanese tech conglomerates Epson and Sony asks the Federal Circuit to decide whether the Patent Trial and Appeal Board (PTAB) erred in invalidating patent claims held by Cascades Projection and whether the PTAB acted in a manner which violated Cascade Projection’s right to due process under the U.S. Constitution.