Tuesday, April 29, 2014

SCOTUS overrules strict Federal circuit standard on "loser pays" for patent troll suits


The US Supreme Court has overruled the Federal Circuit in the very narrow way the appeals court implemented the “loser pays” (or “European rule” or “fee-shifting rule”) for putatively frivolous lawsuits by patent trolls. The story in Forbes today by Daniel Fisher is here

The opinion for Octane Fitness v. ICON is here. Another case is Highmark v. Allcare Health Management System, here.

The usual rule, where each litigant has to pay its own legal fees, is called the American System.  Sounds appropriate.  

Monday, April 28, 2014

Nate Berkus (as well as Shaun White) uses his name for a brand for goods


In a visit to Target today, I found what I wanted OK (pajamas, finding them in the larger but older Falls Church store but not earlier in Merrifield), but when looking for some new bedding I found another namesake brand.

This is Nate Berkus, now a trademarked brand of many home products that have some sort of design aspect.  I’ve seen this recently with Shaun White and sports clothes, but Nate adds a new aspect to branding:  if one is a well-known LGBT person, that aspect may add to the effectiveness of the brand, particularly in large cities (in western countries or more progressive states).  Can the social or political message associated with a name be viewed as a significant aspect of the legal strength of a brand recognition? One might also ask the same question of “right of publicity”.  Either one of these two personalities could use their names easily as brands if they get into independent film (maybe Shaun is going to do that; Nate already hosts his own syndicated TV shows).   It would seem that Reid Ewing’s “Reid.ing” or “Reid Rainbow” would make a good commercial mark (for a film franchise)  if the particular videos weren’t “free” (a bit of an irony given what the films say).

Also, just a little life lesson. The picture below shows how to misplace something in plain sight, and waste twenty minutes finding it.  

Thursday, April 17, 2014

Some product brands use the "trademark concept" to preclude consumers' rights to sue


One benefit to a business from the branding concept of a trademark is that it can use it to protect itself from litigation.
  
The New York Times reports, in Business Day Thursday, in an article by Stephanie Strom, that General Mills is forcing customers who used any online benefits at all for any of its branded products to agree to arbitration and never sue the company or engage in class-action suits.  The title of the article is “When ‘liking’ a brand online voids the right to sue”, link here.  Notice the Likeonomics.  Apparently “liking” one of the brands on Facebook or YouTube voids the right to sue. 
  
I remember a Crunchy Nuts (Kellogg’s) commercial about three years ago that seemed to offer a male outdoor hiker whom I think I’ve met.  The cereal boxes didn’t include the picture. 
  
Remember all those deals in the 1950’s (like for baseball cards or gloves or toys) where you had to mail in cereal boxtops?  We sent these in every summer in Ohio.   

Wednesday, April 02, 2014

Supreme Court justices sound wary during oral arguments on software patents case

The Supreme Court heard oral arguments concerning the “settlement” software patented by Alice, challenged by CLS Bank, Monday.

  
The basic link for the oral argument text is here

Adam Liptak has a story in the New York Times Business Day Tuesday, “Justices seem wary of software patent case”, link here

The Court is wary of discouraging innovation by invalidating all software patents, but is also aware the patenting of functional concepts has been inviting trolling, which can even affect end users.
One justice said that the underlying concept in the Alice case was simply “solvency”.

  
Robert Barnes has a similar story in the Washington Post March 31, here

Imagine the possibility that the “Opposing Viewpoints” database and scripts that I proposed on my main “BillBoushka” blog (Feb. 29, 2012).  Suppose there was a database and associated object oriented methods source code, available to social media companies, or perhaps even to public school systems or universities teaching history, government or political science.  It’s hard to imagine this concept as a patent, the software would certainly be copyrightable.
   
Vox Media might have a similar issue when it develops is “news apps” (IT jobs blog, Mar. 27, 2014).