Posts Tagged: "Guest Contributor"

This past week was another very prolific one for Apple, as the California-based electronic device developer received 35 patents and had another 36 applications published by the U.S. Patent & Trademark Office. Many patent applications were concerned with the ways computer users interact with their systems, and we see a number of upgrades to graphical user interfaces coming for device address books and online stores. Of the patents issued to Apple, one protects a webpage retrieval method that can help browsers save a lot of time while searching for information on the Internet.

Patent litigants have long expected an appeal to follow nearly every jury verdict and that a key question (if not the key question) on appeal will be the district court’s construction of one or more disputed claim terms. Syntrix’s recent infringement verdict against Illumina would be seen as no exception if not for what happened the very next day — the Federal Circuit’s decision to rehear en banc the panel’s decision in Lighting Ballast Control LLC v. Philips Electronics N. Am. Corp. to consider whether to reset the standard of review for claim construction, long recognized as a question of law reviewed de novo on appeal.

Federal Circuit Chief Judge Rader recently delivered an important and noteworthy defense of the U.S. patent system the recent annual meeting of the Association of University Technology Managers (AUTM). His ideas have merit, but let’s not presume that patent litigation reform is all that is needed or all that can be done to help. I believe that Chief Judge Rader and other patent system users should focus on additional reforms that could contribute in a substantive way.

The House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet on March 14, 2013, heard from six witnesses that the business of “patent assertion entities” (PAEs) is inflicting severe harm on a broad range of technology users. The witnesses at the hearing agreed that, when confronted PAE demand letters on frivolous claims, settlements by and large are economically unavoidable.

International Business Machines Corporation (IBM) is an international business technology consultant and developer headquartered in Armonk, New York. As the top patenting company for the last 20 years, every week you can expect to see at least a few patents on computer systems and other technologies where IBM is the assignee. This past week was a very light one for the company with no patents and only four patent applications published by the U.S. Patent & Trademark Office; most of these deal with mirroring data for backup computer systems. The previous week was much more fruitful, and included an application pertaining to user-responsive computer interfaces.

Patent and technology firm, Intellectual Ventures (IV), recently brought a new complaint against computer security company, Symantec, claiming that the company infringed on three of its patents. To be specific, the complaint alleges that three of Symantec’s products (Replicator, Veritas Volume Replicator, and ApplicationHA) “actively, knowingly and intentionally” infringed on three separate IV patents. Symantec was also sued as part of a different complaint by IV back in 2010, along with Trend Micro, McAfee, and Point Software Technologies.

In the complaint, Willie Gary and his team claim that HP and Palm’s infringing use of the name Chubby Checker in relation to its software application is likely to cause confusion or mistake in the minds of the artist’s long-time fans and supporters, such that it would do damage to the brand and Mr. Evans’ businesses. Additionally, if the infringement is allowed to continue, it will permit HP and Palm to benefit from profits to which they are not entitled.

Just as most of society wrongly considers doctors as “gods”, many patent clients wrongly think that patent attorneys will help them achieve these business objectives simply by filing a patent. To be fair, patent attorneys are not being hired to study the client’s market, nor their competitive position within the market. They are not hired to develop the client’s internal IP budget, nor to help the company strategically develop an IP portfolio that could boost exit value. Such an engagement could be fraught with conflicts and confusion. Unless attorneys make clear the limited and narrow scope of their services, and unless and until clients become more IP-savvy, clients will continue to incorrectly assume that all is fine in their Patent La-La Land; nothing is further from the truth.

Yet again, it was another busy week for Apple Inc. at the U.S. Patent & Trademark Office, as the California-based electronics developer received 48 patents and another 20 published applications for prospective patents.
A number of these applications describe upgrades to supporting components on Apple devices, including a new configuration for a device vibrator and a better system of illuminating keyboard keys. One of the more intriguing Apple patents awarded this week protects a system of displaying metadata to users extracted from radio broadcasts.

Senator Ron Wyden (D- OR) is a man with an idea for lowering health care costs. Unfortunately, it’s an idea which proved disastrous the last time it was forced on the National Institutes of Health. But that hasn’t dissuaded the Senator from trotting it out again. He seems sincere in his concern with the ever escalating costs of medicine. Unfortunately, his proposed solution empowering the government bureaucracy to second guess industry drug pricing decisions simply because they worked with NIH would make things worse. We could see fewer new drugs at any price.

A Manhattan federal jury recently ordered Nintendo Co. Ltd. to pay Tomita Technologies International, Inc. (“Tomita”) over $30 million in damages in a patent infringement case that concerned certain 3D technologies. Tomita, which originally filed the claim against Nintendo back in June of 2011, claimed that Nintendo’s 3DS hand-held video game system (which launched in March of 2011) infringed on Tomita’s patent called “Stereoscopic image picking up and display system based upon optical axes cross-point information” (also known as the ‘664 patent), which is technology that shows 3D images that can be viewed without the use of special 3D glasses. Nintendo has made it clear that it is confident that the verdict will be set aside and that it will not impact its continued sales of that gaming system or any of its other systems, software and accessories.

Individual inventors and corporate IP owners are used to dealing with accountants, lawyers and investment advisors – all professionals who are governed by state and/or federal professional regulations, and/or national association guidelines. Well, the question I pose is: What professional regulations govern the qualifications and conduct of all these IP middlemen? The short answer to the above question is “none!” After all, there is no IP brokerage or IP middlemen governing body.

Patent stories don’t normally make the evening news or the major outlets unless one of the antagonists is called Apple. That changed this week when news broke that Spanx, makers of shapewear undergarments for women, founded by Sara Blakely had filed an action for Declaratory Relief against Times Three Clothiers, doing business as Yummie Tummie, in the Northern District of Georgia. Once the story got to The Huffington Post, as they say, it was on, and quickly went viral being picked up by all of the major television networks, Forbes, Business Week and most of the major newspapers around the country.

Tuesday, in Kirtsaeng v. John W. Wiley and Sons, Inc., the Supreme Court held 6-3 that the first sale doctrine of Section 109(a) of the Copyright Act trumps a copyright owner’s right under Section 602(a)(1) to bar importation of copies when they were made and sold outside the United States. The Court appropriately rejected a cramped geographic reading of “lawfully made under this title,” but largely gutted the right of copyright owners under Section 602(a)(1) to bar importation of copies. Along the way, the Court unequivocally adopted international copyright exhaustion without a lick of statutory support or evidence of Congressional intent. Given the Court’s willingness to find international exhaustion even in the face of statutory language limiting parallel imports under the Copyright Act, it wouldn’t be surprising to see the Court fully embrace international patent exhaustion in the future, since there’s even less statutory basis to bar its adoption.

In response to the scandal over a fungal meningitis outbreak, the FDA has begun a crackdown on compounding pharmacies and targeting about 30 ‘high risk’ operations in nearly a dozen states. San Francisco officials approved a referendum that will allow residents to decide whether to require city officials to hold talks with drug makers about pricing for ‘essential medicines.’ A federal appeals court upheld the conviction of a former biotech chief executive, who argued that federal prosecutors violated his First Amendment and commercial speech rights. The Federal Trade Commission filed a brief siding with generic drug makers in dispute with brand-name drug makers. At issue is whether a brand-name drug maker should be required to sell samples of its medicine to an aspiring generic rival when its medicine was approved with a Risk Evaluation and Mitigation Strategy.