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| Top Intellectual Property Law Issues of 2005, by Wolf, Greenfield |
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Thursday, January 06 2005 @ 02:29 PM EST
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It's usual at this time of year to try to figure out what the future holds. I asked Henry Stimpson if he'd poll the folks at Wolf, Greenfield & Sacks, a Boston IP law firm (with a really lovely website), and give us the firm's assessment of what to keep an eye on for the coming year, as far as IP law is concerned. He graciously agreed. What I found most interesting is what they say about more conflict expected between patents and antitrust law.
In connection with patents, the Washington Post's Jonathan Krim is reporting a major scoop today (reg req'd): "Several of the world's largest high-tech corporations plan to urge Congress today to force Internet service providers to crack down more aggressively on their users who swap copyrighted software, music or video files online.
"The move is a significant escalation in the campaign by the software and entertainment industries to squelch widespread file sharing by millions of users through services such as Kazaa, Grokster and Morpheus. If successful, it could reshape a long legal tradition of shielding phone, cable and other communications companies from liability for the actions of their customers." Yes, you heard right.
The BSA is asking Congress to change the DMCA to make it possible for the entertainment industry to get subpoenas from a clerk process instead of a judge and use them to force ISPs to turn over user information.
They are releasing a paper about it later today, and when it's released, here's where you will be able to find it. The RIAA just lost a second appeals court case, this one in Michigan, on that very issue, the court [PDF] ruling that ISPs are conduits and not responsible for copyright infringements by users and that the RIAA, the plaintiff, could not use the easier subpoena process to out ISP customers but would have to use the John Doe method, which gives John Doe an opportunity to be heard before a judge first, prior to any subpoena issuing. You probably remember the Verizon case [PDF] we covered here on Groklaw, which was the RIAA's first loss on the same issue. You might also like to review the exclusive interview Groklaw did with Sarah Deutsch, the lead attorney on the Verizon case, on why it matters how the RIAA gets subpoenas. Think stalkers. Anyway, the RIAA rep said after the loss that their enforcement efforts wouldn't miss a beat, and today I read the BSA is asking Congress to change the DMCA to let them do what the RIAA wants to do. Members of the BSA include Microsoft and IBM, the article points out. Here is the BSA Members list. Here is the remarkable part. The BSA is also asking for patent reform: One problem is that as patents have proliferated, a new kind of business has emerged in which companies seek to enforce patents solely to make money, not to use the technology. Even when the patents are not likely to stand up in court, companies often settle with the patent owners rather than go through costly legal battles.
The BSA wants administrative procedures to allow third parties to be able to challenge patents after they are granted, and to limit damage awards for willful patent infringement.
That tells you just how bad the patent system has become, does it not? So, I think that situation also bears watching, and here are Wolf Greenfield's picks for the coming year: **********************************
Top Intellectual Property Law Issues of 2005 --
Internet-Related Cases, Higher Filing Fees, Antitrust-Law Conflict To Reshape Landscape, says Wolf Greenfield
The intellectual property arena bubbled with activity last year. AutoZone, a LINUX user, was sued by the SCO Group, which claims to own copyrights allegedly infringed by LINUX.
A top court ruled on the Knorr-Bremse case
1, overturning the necessity of obtaining a lawyer’s opinion to avoid a finding of willful patent infringement. Several companies filed lawsuits against Google and other search engines claiming trademark infringement for selling trademarked search terms.
This year promises more intense activity. The Boston law firm Wolf, Greenfield & Sacks, P.C., an intellectual property specialist, sees the following issues and cases as reshaping the IP landscape in 2005.
Supreme Court to rule on Grokster music file-sharing case.
2
The high court will reconsider the 9th Circuit U.S. Court of Appeals’ ruling that Grokster, a file-sharing network, is not responsible for copyright infringement by its users.
“I predict the Supreme Court will uphold the decision and that copyright holders will need to pursue alternate strategies to protect their rights,” says Michael Albert, head of litigation at Wolf Greenfield. “This case is part of the clash between digital-rights advocates and ‘right-to-copy’ advocates that’s playing out all over the world in litigation and legislation,” he adds.
More conflict between intellectual property law and antitrust law.
Antitrust law promotes open competition while IP law restricts it by giving owners of IP exclusive rights. Has the pendulum swung too far toward the IP side? Some companies use patents solely as a litigation program. Antitrust law could be enforced to crack down on that. The Federal Trade Commission held hearings on the issue last year and issued a report. “Expect some major movement—a court decision or legislation—in 2005,” says Edmund Walsh, counsel.
Fewer but higher-quality patents because of higher filing fees.
In December, the US Patent and Trademark Office raised its filing fees significantly—particularly for patent claims, which define the scope or “boundaries” of an invention.3 Companies of all sizes must think harder about which patents and claims are worth pursuing, Walsh says. While the impact on a small business is obvious, even big technology companies are affected because they file so many patents.
Phillips v. AWH case
4on standards for patent claim interpretation.
The U.S. Court of Appeals for the Federal Circuit (CAFC), the nation’s top patent court, will decide on Phillips v. AWH, which will clarify the interpretation of patent claims—and possibly lead to more restrictive interpretations. Today, different judges use different standards to interpret claims. Some rely on the patents and drawings; others use dictionary definitions of words in the claims. The decision will enforce consistent standards and have a major impact on how broadly claims are interpreted and on future litigation, says James J. Foster, a senior litigator at Wolf Greenfield.
Fallout from Knorr-Bremse decision on willful patent infringement.
This landmark 2004 CAFC case reversed a longtime precedent that presumed a company might be deemed guilty of willfully violating a patent unless its lawyer had filed a letter certifying its innocence. But the devil is in the details as the lower courts apply it case by case in litigation, Foster says.
Decision on Tiffany’s trademark-infringement lawsuit against eBay.5
Tiffany & Company last year sued eBay, claiming the Internet site infringes on its trademarks by allowing users to sell fake Tiffany jewelry and “actively encourages the sale of counterfeit merchandise.” The U.S. District Court of the Southern District of New York will hear this first-of-a-kind case and is expected to issue a decision sometime in 2005.
1 www.gbpatent.com/knorrbremse.doc
2 http://www.pcworld.com/news/article/0,aid,118909,00.asp
http://research.yale.edu/lawmeme/modules.php?name=News&file=article&sid=1660
3http://www.ficpi.org/wPhillips-v-AWH_En_Banc.doc
4http://www.law.com/jsp/article.jsp?id=1090180362167
5http://www.ftc.gov/opa/2003/10/cpreport.htm
Wolf, Greenfield & Sacks, P.C., Boston, (www.wolfgreenfield.com), is one of the most experienced law firms devoted to the practice of intellectual property law, including patents, trademarks, copyrights, trade secrets and related litigation.
Henry Stimpson writes on IP law. Contact him at HStimpson at StimpsonCommunications.com
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| Authored by: Anonymous on Thursday, January 06 2005 @ 02:30 PM EST |
| Loïc [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, January 06 2005 @ 02:32 PM EST |
| Loïc [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, January 06 2005 @ 03:10 PM EST |
Since the granting of worthless patents is widely percieved as a money making
scheme by the USPTO, it could be inferred that raising the cost will increase
the profitability of this scam.
Furthermore, large organisations can afford to go on applying for patents
regardless of their merit. Genuine individuals have difficulty with the present
fees.
The remedy is
1) to only grant patents to individuals and not corporations, as it is obvious
no corporation ever invented anything, and
2) make the USPTO liable for damage caused to victims for invalid patents it
grants to others (perhaps jointly with the applicant where the
"patent" has obvious prior art,
or is "obvious to any skilled paractitioner in the appropriate
field".
3) It should not be possible to file "submarine" patents whose meaning
is redefined after changes in technology. If the patent cannot be implemented at
the time of application, it should not be valid. Meanings not plausible at the
time of filing should not be later inferred. If the original inventor has an
idea to extend his invention, he shoudl file an additional patent. If someone
else has the idea they are entitiled to file the new idea without threat from
the original patent holder.
Simultaneous invention by three independent persons should be regarded as
prima-facie evidence that the invention was obvious. If three people describe
the same idea before the first one's patent was published - in other words, if
three applications for the same patent are in progress at the same time - then
ALL THREE SHOULD BE AUTOMATICALLY INVALIDATED.
Furthermore, I suggest a reform whereby the present claim system whereby broad
claims are filed so that they may be referred to by more specific claims later
should be replaced by a syntax with a structure like a programming language that
allows clauses to be named and referred to by name, and operators like AND, OR
XOR and parentheses. This could be subjected to automatic parse checking (like
"LINT") in other words, the lessons learned in formal languages
definitions in computing in the last 40 years could be gradually migrated into
the legal world. It would then be possible to rule which patent applications are
linguistically unclear, and disallow them at the application stage "Syntax
error at or near line nnn!".
[ Reply to This | # ]
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- Remedies - Authored by: rsteinmetz70112 on Thursday, January 06 2005 @ 03:25 PM EST
- Remedies - Authored by: Reliant on Thursday, January 06 2005 @ 05:26 PM EST
- Remedies - Authored by: Anonymous on Thursday, January 06 2005 @ 08:14 PM EST
- Remedies - Authored by: Anonymous on Friday, January 07 2005 @ 08:00 AM EST
- Remedies - Authored by: Anonymous on Friday, January 07 2005 @ 08:46 AM EST
- Exhibit A - You Need Lawyers - Authored by: PJ on Thursday, January 06 2005 @ 08:24 PM EST
- Remedies - Authored by: Anonymous on Thursday, January 06 2005 @ 07:34 PM EST
- Remedies - Authored by: Tyro on Thursday, January 06 2005 @ 09:22 PM EST
- Remedies - Authored by: Anonymous on Friday, January 07 2005 @ 12:38 AM EST
- Remedies - Authored by: ff5166 on Friday, January 07 2005 @ 08:56 AM EST
- "Natural Persons" - Authored by: overshoot on Thursday, January 06 2005 @ 03:41 PM EST
- Why not reduce the lifespan of software patents - Authored by: Anonymous on Thursday, January 06 2005 @ 04:38 PM EST
- Who pays? - Authored by: ralevin on Thursday, January 06 2005 @ 05:45 PM EST
- Top Intellectual Property Law Issues of 2005, by Henry Stimpson, Esq. - Authored by: ikocher on Thursday, January 06 2005 @ 05:49 PM EST
- Top Intellectual Property Law Issues of 2005, by Henry Stimpson, Esq. - Authored by: Anonymous on Friday, January 07 2005 @ 08:37 AM EST
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| Authored by: blacklight on Thursday, January 06 2005 @ 03:26 PM EST |
"In December, the US Patent and Trademark Office raised its filing fees
significantly—particularly for patent claims, which define the scope or
“boundaries” of an invention. Companies of all sizes must think harder about
which patents and claims are worth pursuing, Walsh says. While the impact on a
small business is obvious, even big technology companies are affected because
they file so many patents."
The same idiots are awarding the patents, using the same flawed methodology. [ Reply to This | # ]
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| Authored by: geoff lane on Thursday, January 06 2005 @ 03:31 PM EST |
While the legal process favours the side with the most money, the patent system
will never be fair.
The only solution I can see is a) fund the patent office properly so it doesn't
have to depend on patent application and renewal fees and b) mandatory
arbitration outside the court system for disputes.
---
Invention and Innovation are not synonyms.
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| Authored by: Anonymous on Thursday, January 06 2005 @ 04:00 PM EST |
I once had an idea that was patented by the company I worked for. It was
astonishing how something that could be expressed in one or two sentences was
transformed into twenty-odd pages of very broad legalese in which it was really
hard to find the original idea. The boss explained this was to protect the idea
- so that no-one could figure out what we really intended to do, and so that the
patent would cover "workalike" ideas based on the same general
concepts.
The company had a policy of "patent everything" because it was still
paying royalties to a competitor over a blindingly obvious product feature that
had been patented by the other firm.
Now the interesting thing is that the EU (or maybe US) patent reviwers turned up
some possible prior art. It was clearly a different system, but it was very
difficult to explain how our proposal was different - especially as the original
ideas of both patents had been wrapped in so much generalisation.[ Reply to This | # ]
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| Authored by: producer on Thursday, January 06 2005 @ 04:19 PM EST |
"While the impact on a small business is obvious, even big technology
companies are affected because they file so many patents."
Nonsense. This is simply another way our Wall Street owned government and
lawmakers will make it harder(more expensive)for a small company to gain a foot
hold and perhaps threaten the power of their current owners.
Excuse me, largest contributors to their campaigns I should say
No level of increase in "fees" will put the slightest dent in the
financial workings of a member of the Fortune 500. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, January 06 2005 @ 04:34 PM EST |
And who can forget his '91 patent foresight:
"If people had
understood how patents would be granted when most of today's ideas were invented
and had taken out patents, the industry would be at a complete standstill today.
... The solution is patenting as much as we can. A future startup with no
patents of its own will be forced to pay whatever price the giants choose to
impose. That price might be high. Established companies have an interest in
excluding future competitors." [ Reply to This | # ]
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| Authored by: starsky on Thursday, January 06 2005 @ 05:27 PM EST |
| Am I missing something or is this lawsuit completely
relevant.
It seems to be picking up very little press coverage, and I think
it is of concern.
Some info from his site:
Has
Congress Never Voted to Explicitly Authorize Software Copyright?
Is
Copyright (Case)Law for Software So Vague That it Violates Due Process Notice
Requirements?
Must Ideas in Patent Claims Be Filtered Out of Copyrighted
Software before Comparison?
On December 7th 2004, Mr. Aharonian filed a
constutionality lawsuit in the United States District Court for the Northern
District of California, asking the courts to answer these questions, and others,
to the extent that they put Mr. Aharonian's business activities at risk, such as
his long term quest to improve the quality of issued software patents using
copyrighted software. If the Court answers "YES" to one or more of these
questions, Mr. Aharonian is asking the Court to declare software copyright
unconstitutional in light of Congress abdicating its responsibilities for thirty
years.
Note, I am aware that this guy is a patent lawyer, so
he has a vested interest in forcing everything to be dealt with through patents.
At the same time he has been an outspoken critic of the patent system for a
number of years, highlighting how broken it is.
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| Authored by: Anonymous on Thursday, January 06 2005 @ 05:56 PM EST |
> ...get subpoenas from a clerk process instead of a judge...
Would this even be constitutional?[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, January 06 2005 @ 06:05 PM EST |
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He thinks
skipping commercials should be against the law.
A bigger
disaster is on the horizon, judging by the current machinations within the World
Intellectual Property Organization (WIPO) and its U.S. agent: Hollywood. If you
read the text of HR 2391, the Intellectual Property Protection Act, you'll find
a proviso that makes it illegal to skip commercials using technology other than
leaving the room to get a sandwich. In other words, no fast-forward! Luckily,
the consumer electronics folks are making a huge stink about this.
[ Reply to This | # ]
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- And on a similar topic, Senator Hatch is at it again - Authored by: Greebo on Friday, January 07 2005 @ 04:20 AM EST
- Freedoms - Authored by: RPN on Friday, January 07 2005 @ 05:26 AM EST
- Freedoms - Authored by: Wol on Friday, January 07 2005 @ 07:54 AM EST
- And on a similar topic, Senator Hatch is at it again - Authored by: Anonymous on Friday, January 07 2005 @ 06:04 AM EST
- And on a similar topic, Senator Hatch is at it again - Authored by: odysseus on Friday, January 07 2005 @ 07:58 AM EST
- And on a similar topic, Senator Hatch is at it again - Authored by: tomg_66 on Friday, January 07 2005 @ 10:56 AM EST
- Not exactly.. - Authored by: Anonymous on Friday, January 07 2005 @ 02:41 PM EST
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| Authored by: Powerin on Thursday, January 06 2005 @ 07:22 PM EST |
Making ISP's responsible for illegal traffic on their networks is surely a bit
like holding the owner of a road responsible for a bank robbery because the
getaway car used their road to escape.
But then I guess I shouldn't be surprised....you can be held responsible if a
person injures themselves while breaking into and robbing your own house. Such
is the world of litigation today :-([ Reply to This | # ]
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| Authored by: feldegast on Thursday, January 06 2005 @ 07:29 PM EST |
I find it interesting that the three quoted egamples (Kazaa Media Desktop,
Grokster and Morpheus) are all spyware infested
---
IANAL
The above post is (C)Copyright 2004 and released under the Creative Commons
License Attribution-Noncommercial 2.0
P.J. has permission for commercial use[ Reply to This | # ]
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| Authored by: unsubtle on Friday, January 07 2005 @ 12:52 AM EST |
| can i resist the temptation to make a cheap shot about how windoze must be
better than gnu/linux or *bsd because it costs so much more? :-)
seriously,
i think this may be no improvement at all. we know that lots of issued patents
will be declared invalid later. we know that you have to be very rich to attack
or defend in patent infringement cases. these things won't change.
the main
problem for software is that patent offices and courts have started allowing
patents for pure ideas. this is totally contrary to the original intention of
patent laws, which were only meant to cover applications of natural
science. patents on business methods are part of the same problem.
the
solution is to pass new patent legislation which reiterates more explicitly the
intention of earlier patent legislation to exclude patents on pure ideas, so
that the patent offices and courts stop getting it wrong.
AIUI this is what
the european patent directive as amended by the european parliament would
do (unlike the versions from the european commission or council, which would
retrospectively legitimize the patent offices' granting of patents on pure
ideas). this is why it is important that the directive should be passed in the
parliament's version, not dropped (though dropping it would be better than
passing it in the commission/council's version).
that's just for te EU, of
course; similar new legislation is needed in the US. (i'm ignorant about the
situation in other countries.) [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, January 12 2005 @ 02:07 PM EST |
Wolf Greenfield is notorious for their attacks on GPL. Why did you go and ask
them for their take? You think they have a lovely web site? Does the first link
remind you of anything?
GP
L is a viral time bomb
Don't adopt GPL until SCO case is over
Warning
about GPL in biotech
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- Setup? - Authored by: Anonymous on Wednesday, January 12 2005 @ 02:48 PM EST
- Setup? - Authored by: Anonymous on Wednesday, January 12 2005 @ 03:04 PM EST
- Setup? - Authored by: Anonymous on Wednesday, January 12 2005 @ 03:15 PM EST
- Setup? - Authored by: Anonymous on Wednesday, January 12 2005 @ 03:31 PM EST
- Setup? - Authored by: Anonymous on Wednesday, January 12 2005 @ 04:11 PM EST
- Setup? - Authored by: Anonymous on Wednesday, January 12 2005 @ 04:33 PM EST
- Setup? Not. - Authored by: PJ on Wednesday, January 12 2005 @ 05:57 PM EST
- Setup? Not. - Authored by: Basilius on Wednesday, January 12 2005 @ 06:16 PM EST
- Yes, I'm serious. - Authored by: PJ on Wednesday, January 12 2005 @ 07:19 PM EST
- Yes, I'm serious. - Authored by: Anonymous on Wednesday, January 12 2005 @ 07:46 PM EST
- Yes, I'm serious. - Authored by: PJ on Wednesday, January 12 2005 @ 08:21 PM EST
- Yes, I'm serious. - Authored by: Anonymous on Wednesday, January 12 2005 @ 09:34 PM EST
- Yes, I'm serious. - Authored by: Anonymous on Wednesday, January 12 2005 @ 09:57 PM EST
- What? - Authored by: Tim Ransom on Wednesday, January 12 2005 @ 10:10 PM EST
- What? - Authored by: Anonymous on Wednesday, January 12 2005 @ 11:51 PM EST
- What? - Authored by: Anonymous on Thursday, January 13 2005 @ 12:58 AM EST
- What? - Authored by: Anonymous on Thursday, January 13 2005 @ 01:13 PM EST
- What? - Authored by: Tim Ransom on Thursday, January 13 2005 @ 05:54 PM EST
- What? - Authored by: Anonymous on Thursday, January 13 2005 @ 08:27 PM EST
- What? - Authored by: Tim Ransom on Thursday, January 13 2005 @ 10:56 PM EST
- What? - Authored by: Anonymous on Friday, January 14 2005 @ 08:58 AM EST
- What? - Authored by: Anonymous on Friday, January 14 2005 @ 03:50 PM EST
- Setup? Not. - Authored by: Anonymous on Wednesday, January 12 2005 @ 06:32 PM EST
- PJ wrote about this on Groklaw - Authored by: Anonymous on Wednesday, January 12 2005 @ 03:10 PM EST
- Why PJ? - Authored by: Anonymous on Wednesday, January 12 2005 @ 04:06 PM EST
- Why PJ? - Authored by: PJ on Thursday, January 13 2005 @ 02:02 AM EST
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