BLIP: Blogging Patents

Adidas wins big in trademark dispute

Michael Valek — Wed, 07 May 2008 16:29:00 GMT

On Monday, an Oregon jury returned a verdict for Adidas awarding it damages of almost $305,000,000 in a trademark dispute against Kansas-based Collective Brands Inc., which operates Payless ShoeSource. The jury found that Payless had infringed Adidas' "Three Stripe Mark" and "Superstar" trade dress by selling shoes that bore confusingly similar marks. The jury also found Payless liable for unfair and deceptive trade practices and trademark dilution.

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Reply to Mr. Ohman concerning patent dispute with Lance Armstrong Foundation

Chris Ryan — Tue, 06 May 2008 19:49:00 GMT

Mr. Ohman responded to yesterday's posting, expressing concerns as to the accuracy of its content. In an email message to me, he said that his design patent was amended because the USPTO simply asked him to choose one design of the three he originally filed, that he was not "...

Lance Armstrong Foundation sued by holder of design patent for BARKSTRONG pet collar

Chris Ryan — Mon, 05 May 2008 18:38:00 GMT

In an apparent retaliatory lawsuit, Chris Ohman has sued the Lance Armstrong Foundation ("LAF") for infringing a design patent to its "BARKSTRONG" dog collar design. In his complaint, filed in the Northern District of Oklahoma last week, Mr. Ohman claims to own patent rights to the use of the LAF'...

RAMBUS: The battle over hold-ups in industry standard setting

Chris Ryan — Wed, 30 Apr 2008 18:51:00 GMT

If you help your industry adopt your patented technology as a standard and then sue companies that use the standard, bad things can happen. You might lose your patent rights, be sued or prosecuted for antitrust violations, unfair competition, and fraud. Even if you ultimately win your case at trial ... ...

Quick appellate review of patent claim constructions: Is the door opening for interlocutory appeals?

Michael Valek — Wed, 30 Apr 2008 15:47:00 GMT

The most difficult issue in many patent cases is claim construction, that is, the court's interpretation and articulation of what exactly the claims of the patent mean. Interpreting patent claims is hard work. It usually involves consideration of technical jargon that, especially when significant time has passed since the patent was filed, may be obsolete or just plain awkward. As a result, courts don't always get claim construction right the first time. Indeed, a substantial percentage--depending on whom you ask, the anecdotal figure is around 50 percent--of trial court claim constructions are successfully challenged on appeal.

The high reversal rate for claim construction is especially problematic because most claim construction decisions cannot be immediately appealed. Interpreting the claims is only the first step in the infringement analysis. After they're interpreted, that construction has to be applied to the accused product or process. Most often that's something the jury is supposed to decide, which means you may have to go through a long and costly trial before a judgment is entered. That judgment--either that the patent claims are infringed or they are not--is what the U.S. Court of Appeals for the Federal Circuit (the "Federal Circuit") ultimately reviews.

However, if the claim construction was wrong in the first place, the jury's verdict on infringement is usually wrong, too. That means a second trial will likely be necessary, which results in more work for the courts, more time lost in litigation, and more money spent on lawyers. The rub, argue critics, is that much of this additional expense and inefficiency could be avoided if claim construction opinions could be appealed prior to a final judgment on infringement.

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A unique brand of monopoly

Matt Wermager — Mon, 28 Apr 2008 22:41:00 GMT

A patent is a deal with the U.S. government. In exchange for elevating the knowledge of the public in general by publishing a description of an invention, the government gives, in return, a "monopoly."

But the monopoly in the patent world is a different animal than what most would consider a true monopoly. When most people think about a monopoly, they think of the ability of one person or company to assert dominance in a certain market by being the only seller of a product. That is not the case in the patent world. A patent does not guarantee any dominance in any market whatsoever; in fact, it does not even give the patent holder the right to make the patented product at all.

While seemingly counterintuitive, this is the way the patent system has to work because of the nature of patentable inventions. Sir Isaac Newton, arguably one of the greatest scientists and inventors of all time, perfectly but unintentionally characterized the patent system when he said, "If I have seen further it is by standing on ye shoulders of Giants."

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Aristocrat case raises requirements for means-plus-function software patent claims

Chris Ryan — Tue, 15 Apr 2008 15:58:00 GMT

The Federal Circuit's recent decision in Aristocrat Technologies will require software patent drafters to take more care to describe the algorithms covered by their software--or risk patent invalidity. (See Aristocrat Technologies.) The court held that expert testimony that a programmer would know how to write code to perform a ...

Should software patents have shorter life spans than other patents?

Michael Valek — Fri, 11 Apr 2008 23:41:00 GMT

There are a lot of strong opinions with respect to software patents. Many people are highly critical of them because they feel that copyright alone is enough protection for software. The argument goes that copyright is a better fit than patent law.

For example, copyright is self-executing. That means that you get a copyright in your program as soon as you write it. In contrast, a patent is obtained only after filing and prosecuting - and in the process spending a lot of money on - a patent application.

Moreover, copyright is supposed to protect a specific expression - not broader ideas found in that expression. One major argument against software patents is, that in order to maintain the lightning pace of software innovation, developers must to be free to use general concepts pioneered by others so long as they don't copy the actual code.

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Is an unsecured FTP server publicly accessible?

Matt Wermager — Wed, 02 Apr 2008 18:42:00 GMT

Unlike other areas of the law where doing something in public can land you in a lawsuit (or at least a courtroom with a nice, slightly used orange jumpsuit), sometimes in patent law doing things in public can get you out of a lawsuit.

When a company finds itself in court defending against a patent lawsuit, it will usually assert two major defenses. First, the company will say "I don't practice (or produce) what is claimed in this patent." Second, a defendant in a patent lawsuit will also attempt to "invalidate" the claims of the patent by showing that "prior art" described the claims in the patent prior to the application date of the patent. While this defense can take multiple forms (see, for example, 35 U.S.C. § 102 ), a defendant must often show that the prior art relied upon was in fact publicly known or publicly used. So now its time for a pop quiz--which one of three options would you consider not being "publicly accessible" for the purposes of United States patent law:

A: The use of a centrifuge in a secure laboratory at the National Institute for Health;

B: The posting of a paper on an unsecured FTP server; or

C: Indexing a dissertation in a paper file and placing it on a shelf...in Germany.

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Supreme Court says parties can't contract around the arbitration rules

Chris Ryan — Wed, 26 Mar 2008 21:51:00 GMT

Tuesday, the U.S. Supreme Court issued a much awaited decision concerning arbitration agreements. Hall Street Associates LLC v. Mattel Inc. Full Opinion in PDF format While this case won't grab many headlines and is unlikely to be featured on the evening news, arbitration agreements are very common in ...