Monday, November 11, 2019

Cloudflare rights back against Blackbird and even the "troll's" previous "purchases"; a question of who has all the "rights"

Mike Masnick of Techdirt explains how Cloudflare (CEO Matthew Prince) fought back against a patent troll named Blackbird, instead of settling (as Newegg had).

Cloudflare attacked Blackbird on all previous patents it had “purchased”.  The article compares Blackbird to previous copyright troll Righthaven, on the issue as to whether when a troll buys intellectual property rights, it buys “all rights”. (See “BillBoushka” blog, Feb. 8, 2013).
Matthew Prince attracted controversy when he decided to shutoff Daily Stormer from service after Charlottesville, and recently did the same with 8chan after the New Zealand attack. He even admitted that as a CEO he had more political power than he thought he should have.

Cloudflare recently (Nov 4) released a blog update ("Project Jengo Saga") on its litigation, “We won!”). 

Friday, November 01, 2019

An "abstract patent" attempted on package delivery tracking

Alex Moss and Elliot Harmon provide, for Electronic Frontier Foundation, a narrative on another “abstract patent”, this time concerning “communication with a tracking device”, leading to nuisance lawsuits. 

This time, EasyTracGPS was pursued by InventEnergyLBS, which goes against “Alice v. CLS Bank”.  Because the defendant had operations in Georgia, it could use that state’s bad faith patent filing laws.

Thursday, October 31, 2019

Wells Fargo defends its routine canceled check imaging processing from patent troll

Tim Lee (“BinaryBits”), from Arstechnica, has described a patent troll’s attack on Wells Fargo, for a canceled check imaging system that is “monitored”. 

 There is some interesting discussion that the judges in the eastern district of Texas aren’t impressed with the idea of “obviousness”.
The problem is interesting because sometimes I make my own copies of checks if for some reason my having a full record of them could be important in some situation.

Saturday, October 05, 2019

My "strategic" thinking on my use of the "do ask do tell" phrase for my books and other media (esp. after 2021)

I have been getting questions recently on why I am not more aggressive in marketing my (already existing) books in a conventional way. The youngest book is five years old.  I will get into more detail on my thoughts on selling “older books” on Wordpress very soon, but I need to share some thoughts on my “do ask do tell” book series name and “” domain name.

I have held that name since Dec. 2, 1999 and the name expires Dec 2, 2021. The first printing of my first DADT book was launched officially on July 11, 1997.  I remember that week well, as I reviewed a final review copy shipped to me by the book manufacturer in a hotel room in Minneapolis while I was traveling on business for my employer at the time.

I have serious concerns about renewing at the end of 2021 unless I have by that time demonstrated the ability to use the mark in a more conventionally commercial manner, with significant sales and possibly demonstrable analytics of audience reaction. Although I believe that the books and associated blogs have exerted influence over specific policy issues (such as the old “don’t ask don’t tell” policy which was repealed in 2011, and COPA and various other speech issues), I can’t prove it with numbers in a way that industry and the current political climate (with all the polarization) is likely to expect. I made a specific announcement on my business Wordpress blog on Wednesday, Feb. 27, 2019 and have gotten some questions about this.

A quick check of TESS on the USPTO system shows only on dead application for the mark in 1995. This mark was associated with two books by Powers and Ellis “A Manager’s Guide to Sexual Orientation in the Workplace” and “A Family and Friends’ Guide to Sexual Orientation” from Routledge (later Baker and Taylor) which I had reviewed here (also here) back around 1998. Both books are more like consumer-oriented guides rather than personal accounts or textbook-like presentations of political theory. 

I have two “literary” projects in mind right now.  Recall, that the third (2014) DADT book includes three “short stories” in the “Fiction” section (the book is like a poioumena), and the last two of these are parallel (one set in 1972 and another around 2020, as if to suggest a two-part independent feature film, following a screenwriting template sometimes tried in the past, like “In Praise of Love” (2001)).  But I have a large science fiction novel “Angel’s Brother”, and a sci-fi setting screenplay called “Epiphany” which uses episodes from the three DADT books for backstory material for one character (me), with much of the presentation layer for the story set on an “O’Neill Cylinder”, or a rama). 

The novel, for which I want to have a presentable draft (for copy editing) by 4/1/2020) would include some charts and diagrams to help follow the plot and backstories (time sequences), some of which I have documented online already. But I could also add some supplementary commentary to bring some of the ideas discussed in the 2014 book (especially with respect to Internet speech [“cancel culture”], as well as recognition of Obergefell and mention of the transgender military ban issue, for example) which frank;y seems necessary due to the polarization (on “both sides”) after the election of Donald Trump in 2016.

With the screenplay, I could consider publishing a shooting script (as I have purchased some myself of movies like “Adaptation” (2001)) with all the embedded DADT “autobiographical” backstories, a couple of which are very controversial.  I must note right now, however, that POD (as far as I know) companies right now don’t have software to print Final Draft scripts automatically formatted properly.

In these scenarios, both the book and the screenplay could carry the “do ask do tell” moniker.  There is also some music that could be published that fits, but I won’t get into the details here.
Along these lines, it would be sound reasonable to consider using “do ask do tell” as the name for an independent film production and/or distribution company with content that is similar to mine:  documentary or fiction that deals with edgy issues about personal identity and free speech. 

Both the novel and screenplay bring up a question that may seem politically “incorrect” in today’s charged: if some global calamity (like Earth really does turn into another Venus quickly) really happens and only a small portion of the people are saved (“evacuated” by “angels”), how are they chosen?  (“Deep Impact” (1998) made it by lottery.)  That confounds all the other political concerns about equality.

But that brings me back to the point of this post:  how would this affect continuing to keep the “do ask do tell” mark indefinitely?  

Many other parties have used the mark for various uses, such as psychology, HIV prevention, puzzles, and in at least one case, another faith-based examination of homosexuality.

A book title alone cannot be trademarked.  A series where there is more than one sometimes can be.  The same is true of movies.  (One book that gets made into a movie might not be enough for a title being trademarked;  a franchise might be.  But generally, when Hollywood studios or major trade publishers consider a series, they want a strong series title that is easily trademarked.)  A common phrase that has a political or social meaning might very well be turned down by the USPTO.  I believe that is probably true of “do ask do tell” since a Google search shows so many informal and localized uses of it already.  Names of characters (comparable to “Harry Potter”) are much more likely to be acceptable. Your own name probably isn’t unless it is unusual in some way.

So a large scale use of the mark (as with a film combining material from the books, or even with a new film company) would require courtesy.  Others can use the wordmark. But the trade dress (the distinctive visible mark similar to what movie studios use to open their feature films – thinking about the MGM lion, the Columbia statue of liberty, the Fox studio image, etc) would need to be protected.  

 The back and white partitioned cover design for my books might work.  A musical slogan could also be protected.

Even though I think that as a wordmark, “do ask do tell” is itself weak on its own, I still think that it’s time that I give it some commercial substance that others can recognize as “legitimate”, as I noted at the beginning of this post. The tech industry will probably expect this as it starts to narrow the way “amateur” or “gratuitous” speech may be promulgated in the future, to separate itself from radicalization.
(See earlier discussion April 5, 2019) 

Sunday, September 22, 2019

"Stronger Patents Act" would disable Internal Patent Review, encouraging trolling

Electronic Frontier Foundation is warning that bill in Congress would eliminate “Internal Patent Review” which makes it harder for trolls to get away with frivolous patents. The Stronger Patents Act, introduced by Chris Coons (D-DE) intends to do away with the IPR. Electronic Frontier Foundation has a story by Joe Mullin (Sept 13).

Some of the frivolous patents include crowdfunding , picture menus and online contests, just concepts.
Another example is a claim on SMS messaging claimed by Anuwave which recently sued Coinbase, among other companies (Eliot Harmon, July 31).

Friday, September 06, 2019

Can a person associated with a "meme" claim trademark infringement (or right of publicity) if a company tries to use the meme for branding ("Plaid Shirt Guy")

I got Facebook “page” called “Plaid Shirt Guy” in my Facebook “status” stream, and I went to it and it navigated to a website for a clothing outfit called “Fabricdew” showing hoodies, caps, and other items.

The “Plaid Shirt Guy” would be Tyler Linfesty, who was ejected from a Trump rally in Montana when he was a high school senior for facial expressions behind the president.  Time has a story about his being questioned by the Secret Service (in September 2018).  But the picture in the page shows Trump in a military uniform, like a dictator. 

There would be an interesting trademark question as to whether a clothing company can use a meme associated with him to name a Facebook page or brand.  I suspect Facebook will remove this page (assuming Tyler had nothing to do with it, which sounds likely).

There might also be a question of misappropriation of Tyler’s “right of publicity”.   He could well speak to attorneys about this.
He would logically be entering college this fall.  His tweets show an interest in space science.  

This question (overseas) might be interesting to Pewdiepie, since he is always inventing new memes. 

Monday, August 19, 2019

Can you get sued (successfully) for calling a company a patent troll?

There is some controversy going on with Twitter on whether a patent “troll” could sue a speaker for defamation for calling the company a “troll”.
Here is the basic tweet, from Bill Donahue. 

A state judge said, well, no, because the characterization of a company as a “troll” is an “opinion”, not a fact.

Tim Lee (Binarybits), who writes for ArsTechnica and whom I know from my days in Minnesota (when he was a student at the U) is not as aggressive as Electronic Frontier Foundation in assuming that every company that buys patents is a “troll”.  

Ed Mullin of EFF offers an analysis of the New Hampshire Supreme Court case.