Friday, December 25, 2015

EFF asks Federal Circuit to stop protecting patent trolls that send demand letters


Vera Ranieri of Electronic Frontier Foundation reports an amicus brief sent to the Federal Circuit to allow defendants of patent troll litigation to clear matters by going to local courts in their own jurisdiction.  It also says “stop shielding patent trolls that send baseless demand letters”. 
 
Public Knowledge has a page on patent reform.
   
Many cases wind up being tried in East Texas, where patent litigation seems to drive the economy. 

Wednesday, December 23, 2015

Musicians' trademark claim upheld by Federal circuit, could help Redskins


The Federal Circuit court of Appeals in Washington DC has ruled that the US Patent and Trademark Office cannot deny a trademark just because the wordmark is perceived as disparaging to some group. Ian Shapira has a Business Section story in the Washington Post today, “Musicians’ court case could help Redskins” (July 8),  The case concerns that Asian-American rock group called “the Slants”, which might be viewed as disparaging (remember the slang of the Vietnam War era). The Court held that the groups' First Amendment rights should prevail.
 
The case might help the Washington Redskins win their trademark rights back, although I have said that they ought to change their name, get rid of the distraction, and move on.  The Redskins are playing better now.  There was a time when they were a source or civic pride.

Wednesday, December 09, 2015

Could Twitter present trademark questions?


Just a fast question: Could a Twitter handle (with the “#” prefix) invoke trademark questions?
 
Today, when writing a tweet about the British thriller film “Blitz” (reviewed on Movies yesterday) I used it to single out the film, and Twitter inserted a happy-face from a different use for the term.  I went ahead and tweeted it.  It copied to Facebook and my own domain without the extra face.
 
Twitter seems to allow users to invent new handles on their own, but there is always a chance they will contradict an existing use.  Use of hashtags is considered preferable to using @mention and @reply for searching and sometimes is viewed as more courteous.  But you wonder if trademark law and Twitter could collide.

Tuesday, November 24, 2015

Service for prisoners becomes target of EFF's "Stupid Patent of the Month" award


Read Daniel Nazer’s report for Electronic Frontier Foundation, “Stupid Patent of the Month”, here.    It is a claim by Securus to patent an administrative procedure to procure third-party payment for a prisoner’s phone privileges after he or she is booked into jail.  I’m reminded of a stand-up comic in Minneapolis 15 years ago, whose favorite line was “stay out of the penitentiary”.

The article refers to Alice v. CLS Beck, and expresses disappointment that the federal circuit has sometimes overrules a “common sense standard”.
   
It’s also interesting that family members can come under pressure from sales persons to provide help to people in the pokey.

Monday, November 16, 2015

East Texas economy depends on patent trolls


Software innovators and app developers especially will enjoy this Washington Times op-ed (commentary) by Chuck Muth, “Draining the swamp of patent trolls: Creating business for lawyers is not what the Founders intended”, link here.

The video below from Reason TV minces no words about the problem for defendants of frivolous patent lawsuits.
 


The article describe how the town of Marshall Texas supports its local economy on patent litigation. Patent law allows litigation to be filed in any community where a product or service is sold. Local rules make the area an expensive place for defendants to litigate (in an area of the country otherwise bragging about low cost of living).  The applicable buzzwords are “venue reform” and “forum shopping”.  This problem definitely should suit the plate of a GOP-controlled Congress.
 
I lived in Dallas from 1979-1988, did have a lingering real estate issue in the 90s, and Texas is an unusually easy place to start litigation, because of the vestiges of the days of “good old boy” mentality – pretty much as in the original TV series “Dallas”.  My attorney there used to say “It’s dumb”.

Thursday, November 12, 2015

Bizarre patent case involves dental data; federal circuit rules progressively


In a bizarre and obscure but important patent case, the Federal Circuit in Washington DC has ruled that the International Trade Commission cannot regulate the importation of “data” under patent law.  The Electronic Frontier Foundation article by Vera Ranieri is here.  The case is interesting to me personally because it involved “dental data” which might be related to the placement of implants.  My own recent treatment in 2013 involved use of a company in Belgium to deliver the digital templates to the surgeon.

The case was “International Trade Commission” v. “Align Technology”.  Much of the issues concerned whether dental data constitutes “articles” under a 1920s law.

Wednesday, October 28, 2015

Road trips show many unrelated retail businesses use similar names, at some risk


I pulled my road-trip mischief in the past two weeks, visiting restaurant and retail businesses within 150 miles of DC having similar names.

I see that I mentioned the “Country Store” issue on Oct 24, 2012 when I had visited the “Ole Country Store” in Culpeper, VA.  This seems to be the same business “The Ole Country Store and Bakery” on US 29 near Madison, VA (a bit north of Charlottesville) (local news writeup), viewed as still part of "Culpeper".  Indoors was a spacious modern country grocery and deli, with many gift items and interesting objects and photographs around on the walls. The sandwiches were served to made-to-order, with huge portions.

So, then, what about Cracker Barrel, The Old Country Store?  Notice “Old” v. “Ole”.  I looked on USPTO and found numerous marks prefixed by “CB”.  The chain has several hundred store-restaurants around the country, largely near Interstate highways and tending to be away from the largest cities.  The closest one to Washington DC is just west of VA 28 near Dulles Airport.  I visited it today, had a steak lunch.  (Why was the sour cream brought in a tear-off rather than a cup, and why wasn’t there steak sauce on the table?  Biscuits were delicious.)   It appears that the company owns all the stores rather than franchisees (from Wikipedia), but I don’t know if this is correct.  This would be a difficult brand for a franchise-owner to emulate (compared to a convenience store like a 7-11 or fast-food like McDonalds).

The store had many gift times and décor (similar to what I saw at “Ole” but even more of them, with more emphasis on non-food items).  There was a Halloween lamp with the face of an alien in Roswell or Area-51 style.  In the dining area, there was a lot of hunting and sporting gear, and an old phone from about 1920.

There would be an interesting question in the trademark or brandname world, whether exact spelling matters, or whether a word’s not being first in a claimed mark matters (as with the “…for Dummies” book series) – since that can complicate on-line searches.

Wikipedia documents the controversy that the Cracker Barrel chain had created in 1991, over firing some “gay” employees.  I covered this matter in Chapter 5 of my first “Do Ask, Do Tell” book (ABC 20-20 covered that once in 1991).

So then, I come to the other issue I’ve covered:  call it “Equal time for cats”.  There’s a strip mall in Arlington VA with a “Lost Dog” and “Stray Cat” restaurant (covered on July 28, 2012 in a very detailed posting here).  But the only “stray cat” trademark that I found online at USPTO (if I did it right) belonged to a company in Keyser, W Va., about 140 miles from Washington DC (just south of Cumberland, MD).

That business is now the “Stray Cat Wing Shack”, which seems to have been remodeled recently, and is a biker bar (a little resembling Danny’s on US-1 south of Baltimore) but also attracting true cyclists (there are bicycles hanging as part of the décor), and lots of unusual home-cooked dishes as well as usual bar stuff.

There seems to be a “Stray Cat” in Moorefield W Va (near the Rocks of Seneca country), as I documented on Aug. 15, 2013.  But the similarly named Mexican restaurant on US 50 slightly east of Romney W Va (in a strip mall with a big CVS store) did change its name some time back.

Most novelty-oriented coffee or gift shops and restaurants in smaller rural towns (away from major tourist destinations such as Orlando) are opened with the expectation of appealing to people who live in the area. Outside traveling business and sales people often find them and are generally not “confused” in the sense of the branding purpose of trademark law.  The real significance of the “common words” issue and local business is more about business culture.  Of course, “culture” is something that can matter to the (somewhat conservative) Federal Circuit which, as Electronic Frontier Foundation has often explained, usually winds up ruling on trademark and patent cases because of specialized legal “expertise”.  Some large corporations may want to monopolize some marks so they can sell franchise operations.  They might even argue, with some merit, that their economic strength is better in the long run for being able to provide jobs with benefits to workers.

 But this sort of position puts would-be small business owners into the position of borrowing money to push someone else’s brand (and commercial and cultural message) rather than express their own creativity.

Remember, when playing “on the road” (even if you’re Jack Kerouac) you may have to hold a one-run lead in the bottom of the ninth inning.  The New York Mets didn’t do that last night.


Thursday, October 08, 2015

Judge in East Texas turns the tables on a patent troll

 
East Texas (the real South) has been the favored venue for patent trolls, until now.

Ars Technica is reporting (story by Joe Mullin) that a federal judge in “plaintiff-friendly” East Texas has turned tables and thrown out 168 suits filed by eDekka, story here. The “patent” is described on Google here  and is nothing more than the “abstract idea of storing and labeling information”.  The defendants may be able to get attorneys fees back. 

Saturday, October 03, 2015

Updating my intentions for my own domain names ("do ask do tell")


Recently, I did a routine “WHOIS” on my doaskdotell.com domain on Network Solutions, and saw a somewhat cheesy banner offering to negotiate with any perspective anonymous purchaser.  Maybe this is common with many individually (not corporate or organizational) domains.

I have the domain name paid for and reserved until Dec. 2, 2021 (when I will be 78).  The domain name is the same as the “series title” for my three “Do Ask, Do Tell” books (1997, pod 2000, then 2002, and 2014).  I actually set up the domain on Dec. 2, 1999.  Previously, the domain name that supported my first book was “hppub.com” (which remained active until July 31, 2005).  That had been a mnemonic for “High Productivity Publishing”.  After publication, as I learned more about domain names and potential possible trademark issues, I realized I should use a domain name that matched my book.

At the time of my first book and through much of the early 2000’s, my “doaskdotell” domain name was probably associated by many people with the issue of gays in the military.  (The “don’t” becomes “do”).  Since the repeal in 2011,  that connection is probably less clear today, except as a matter of “US History”.  It would sound like a natural phrase to use in connection with HIV prevention (including for heterosexuals), by encouraging partners to disclose their health status. 
  
I do need to reiterate that I intend to use the domain (and similar derivatives like my "doaskdotellnotes.com” site on Wordpress) for the foreseeable future as I complete my own work plan (see the label “Strategic Planning” on my main “BillBoushka” blog). 

Public corporations and other entities using “other people’s money” (investors) have to defend their trademarks vigorously, as consumers are not expected to have detailed knowledge of their circumstances but depend on brand names.  Common phrases with political or social connotations are inherently dubious as trademarks for items or services expected to turn profits with investor money, because phrases are often interpreted differently even within relatively specific segments of society.
While “do ask do tell” may sound inherently linked to “gay equality” now, different subgroups of people interpret that concept different.  For example some see it in terms of discrimination against people in identifiable suspect groups; others see it in terms of individual rights (v. supposed collective needs of a larger society).  It’s not possible for a phrase like this to invoke one interpretation in a potential consumer’s mind over another interpretation reliably.

Even so, established charities and non-profits do use trademarks, and need the idea to help potential donors know that money is going to the right place (writeup) .

One important matter to mention is the TLD”.  In the earliest days of the web, “.com” was supposed to be for commerce, but it wound up very quickly (by about 1998) being used for everything.  “.org” was supposed to be for organizational non-profits only, but some individuals started using it.  “.edu” was more restricted (to educational institutions) as were “.mil” and “.gov” and even “.us”.  Now there are dozens of tld’s, many of them based on small countries.  Large entities can apply to ICANN to establish new ones.  But an important concept, perhaps a bit in tension with trademark, is that “.com” and “.org”  (as well as ".edu", ".gov", ".tv", etc) can be used with the same root for completely different and unconnected entities.  This was the original intention, although it doesn’t seem to be a well understood today as it may have been in the late 1990s (when another problem was that some old-school companies were slow to get their own domains at all).
    
By the way, as a historical aside, I let go of “hppub.com” in August 2005, and still got a call from someone wanting to “buy” it on paypal even though it was no longer legally mine.  It was an online gambling site for a few years but is for sale today.



Monday, September 28, 2015

Trademarks can apply in the "commons" and with community efforts: look at Wordpress



It is common for “free services” to have trademarks (although there has to be an ultimate commercial purpose, even like selling ads).  Wordpress, for example, and WordCamp are trademarked names.  But The WordPress foundation (and owner “Automattic”) allow non-commercial, community use as explained here.
  
Wordpress is set up to be very convenient for artists, organizations and small businesses to build entire sites around:  one blog, then an about page, and various other canonical pages (like events, photos, metadata).

Wednesday, August 12, 2015

Trademarks really do help travelers playing road games


OK. Trademarks are sometimes a good thing.  I experienced as much this weekend on my car road trip to Rhode Island and then the Boston area, twice trying to find my hotels at night from a car.  No, I don’t have a Garmin.  I expect to see the trademarked logo for “Comfort Suites” illuminated from the Interstate, and on two occasions they were far enough off the road and hidden away that I couldn’t see them.  Air rights and view also matters.
  
Another related idea is that, when on an Interstate I see an exit for food or gas, I need to see the trademark for the establishment before exiting.  In many cases, I don’t know how far away it is.
  
Here’s another thing.  The American City Diner, near the Avalon Theater in Washington DC, with a model railroad running around the ceiling (another restaurant on Kent Island, Maryland also has one) is selling the “Trump Sandwich”, filled with layers of bologna, for $12.95. I’ve eaten there many times before movies at the Avalon, once watching the Redskins get off to a bad start for their 2013 season.  Can The Donald claim trademark infringement?  Seems like the publicity just gives him free PR, which he doesn’t need.  Consider the controversial 2002 campaign finance reform which I’ve discussed before.

 

Tuesday, July 21, 2015

Facebook goes after analysis-app site based on silly trademark claim


Electronic Frontier Foundation has an article, by Daniel Nazer, indicating that Facebook demanded that an third party analysis site based on Facebook, called “Whatsherface-book.com” (link) be taken down, as infringing on its trademark.  EFF easily argues that the First Amendment protects the “nominative” use of trademarks and domain names in third party criticism.  (Does first amendment protection work the same way with trademark as with copyright?)
    
However, if you go to the site, the site says a change in the Facebook API makes the site unworkable anyway. However, it posts the statistical results (for how well people really know their “friends”) for the time the site was up.  

Wednesday, July 08, 2015

Federal judge orders cancellation of Washington Redskins's trademarks


A federal judge in northern Virginia (Alexandria) has ordered the cancellation of the Washington Redskins’s federal trademarks (six of them). USA Today has a story here, by Erik Brady.  
    
The judge said that the trademark had been disparaging to a substantial cohort of Native Americans when originally granted.  He also ruled that a federal trademark is “government speech” and not directly covered by the first amendment.

The team can continue to use the name, but with no legal protection.

The judge drew an analogy with the "right" of states to regulate their own speech on specialty license plates that they sell.

What about the Cleveland Indians, Cincinnati Redlegs, Atlanta Braves?
       
The Washington Post has a copy of the ruling, and embedded PDF.

  

Wednesday, June 24, 2015

A year after Alice's Restaurant, some companies still want to patent math (AP material, of course)


Electronic Frontier Foundation has an article looking at the patent world “post” Alice v. CLS Bank, in a post by Vera Ranieri June 23, here. The “BSA”, which does not stand for Boy Scouts of America, wants to keep the right to software patents based on mathematical algorithms, but EFF maintains that patentability is not necessary for innovation.

You would wonder if this ruling could affect something like quantum computing, which is based on mathematical derivations, and maybe the next major step in super-fast processing (now of great interest to the NSA). 


Tuesday, June 23, 2015

Washington Redskins football team back in court over loss of trademark registration


The Washington Redskins football team are asking a federal judge in Alexandria to overturn a ruling by the US Patent and Trademark Office to invalidate a registration of the team’s trademark, which is viewed as offensive.  Lawyers for Native Americans claim that the recent Supreme Court ruling allowing states to invalidate certain license plate logos would apply. The Redskins still make a free speech claim. CBS radio has a story here
     
The name was adopted in 1933, ten years before the USPTO opened.
  
I still think the team could focus on winning more easily if it changed the name to something like Warriors, and got this behind.

Thursday, June 11, 2015

Facebook objects to another company that appends a networking facility with "....book".


Ruth Simon has an important story in the Wall Street Journal Thursday June 11, 2015, Money and Tech, p. B5, “Established firms fight startups on names; Well-known companies like Facebook claim that similar monikers could weaken their brands”, link here. The biggest example was an objection that Facebook filed with USPTO on “Designerbook,” with a product intended for engineering students.
  
The objection sounds frivolous and is disturbing.  Designerbook apparently included a limited-scope “social networking” app that, when combined with the word “book”, would mimic the concept of the naming of “Facebook” (which at one time might have been called something else, like Facemash). I've never heard of a trademark dispute over "parallel construction" of a wordmark name before. Maybe there is a legitimate parallel with the "...for Dummies" book series.  

 

Thursday, June 04, 2015

My "Do Ask, Do Tell" title catches on in a research paper at NIH (regarding questions in a study assessing healthcare of LGBT persons)


In a story that is loosely related to the issue of domain name and possible trademark implications of my own “Do Ask, Do Tell” named series, I noticed that the US National Library of Medicine at the National Institutes of Health used the phrase to introduce a study on information gathering to assess healthcare of LGBT persons.  The paper is here.  The questions are called “Sexual Orientation and Gender Identity” (or “SOCI”).  
 
I have created a #Doaskdotell hashtag om Twitter for my books. 

Monday, May 25, 2015

Self-publishing companies and Internet platforms now act more concerned that "amateurism" by speakers affects their brands


Companies that enable users to self-publish and promulgate their own content may gradually become more sensitive to how “speaker” performance and behavior affects their commercial brands.  That’s because these companies have a lot of different stakeholders at some tension with one another.  Self-publishing service companies for books have to deal with authors, end consumers, stores and distributors.  Internet service companies, especially blogging and video platforms, deal with “speakers”, end consumers, and advertisers.  Social media companies are a little less concerned with the effect of broadcast because they are based on a whitelisting concept – the idea that most content is consumed by known visitors (followers or friends).  But advertisers are a big stakeholder.
  
I’ve noted these concerns before. On the Books blog, Oct. 16, 2013, I reviewed a couple of books on self-publishing and noted that at least one such company requires a minimum of five actual sales per month (don’t know if Kindle and Nook count) for a book to stay listed.  There are numerous writers who publish more to make and argument that they believe needs to be “on record” and “out there all the time” than to make money.  Some service companies more recently have behaved as if they believe this practice could damage their own brand reputation, as a platform for “amateurs”, or as undermining the position of authors (also “customers”) who really do need to make money by a kind of lowballing (which is related to piracy but not the same thing at all).
  
Likewise, in very recent months there seems to be a lot of talk that bloggers should be much more focused and much more committed to getting and keeping numbers and quality visits, than in the past.
  
Harvard Business Review has a valuable (ironically, under a paywall!) article (David Bryce et al) on “competing against free” here. The growing practice of paywalls is one way some established journals and newspapers are trying to brand themselves away from “amateurism”, but it far from clear that this will work on the long run.
   
Another related post is, on my main blog today.

Tuesday, May 19, 2015

Should a book author trademark his own series? Does the writer need to?



It’s time to go back and review the entire trademark application process, and pose the question, for myself and for others, do “I” (or “You”) need to file for a trademark for a book or film series title, or any particular niche of products or services.  
  
Let’s go through a few ideas.  A trademark applies to branding for “commerce”, not to the content of intellectual property itself (which is what copyright protects).   
  
Something can be “non-profit” and still be “commercial” and protected by trademark.  The “Blue Cross and Blue Shield” trademark for health insurance companies will be aggressively defended even though these are non-profit (I’ve worked for them before).  
  
However, the goods and services must be available to the public through normal channels of interstate (and international, in most cases) commerce. 
  
Domain names are initially assigned on exact matches, but trademarks consider close or confusing or misleading marks in the same line of business.  Domain names set up intentionally to draw traffic away from an existing business (as to distribute malware or adware, or even some “parked domains”) often can face trademark infringement litigation.  
  
It appears that a series of books or films starting with the same title gets automatic trademark recognition once regularly used in commerce.  That may be true of my own series (“Do Ask, Do Tell”) and is certainly true of popular series like the “Harry Potter” novels, or many movie and comics franchises.   Marvel and DC Comics have certainly mastered trademark law.  If you simply let the publisher (even a self-publishing POD company) sell it, you may not need the mark. 
  
That is explained here on “Copylaw” at this link.  
  
In fact, if you try to register a “book series” mark with USPTO, it would appear, from my reading, that you actually may have to have a company which sells the books.  It’s OK to use Amazon, Barnes and Noble, and regular or independent bookstores, but it would appear that you need your own commercial operation – which would normally comprise an e-commerce website, able to take credit cards and Paypal with encrypted traffic (https), and managing some inventory.  As a small business, you would be need to be mindful of local zoning and tax rules if you keep the inventory at home (which admittedly wouldn’t need much space or create much traffic).   
  
If you look at the site “Tmweb” and enter “books” into the search argument, you see that USPTO tends to look at books as a genre-related product, with many specific categories by genre and by physical assembly. That’s a problem because you have to pay a separate category fee for each genre.  Also, “non fiction books on a variety of topics” is acceptable only as also a publishing-house mark, so you have to create your own imprint and sell it directly.  It would probably be OK to put your own imprint over a POD book.  You could probably market them that way on Amazon and BN, even if they are already marketed under the brand of a self-publishing company, but that would be expensive (you’d have to buy the inventory from them in bulk first – and maybe they would see this as infringing, but perhaps OK if you give them enough business, hard to say).  
  
It would be an interesting question if you also make the book available “free” online in PDF’s or HTML (even under CSS or XSL)(that seems to be a subtle point underneath Reid Ewing’s “It’s Free” short film about public libraries).  Are you competing with your own commerce and undermining the meaning of a trademark?   On the other hand, does Google Book search undermine commerce?  One could possibly argue that it does.  
  
At this point, it’s well to note that USPTO seems to have added a lot of material online as to the whole application process.  There are three pricing levels (depending on degree of automation), the cheapest being $225 per business.  The Fee schedule is here and the basic application link is here
  
  

USPTO has a lot of training videos, all of which should be watched.  Critical items include the “goods and services” (or business categories), as well as the “Intent to Use” forms.  These are the way USPTO ensures that a mark has legitimate meaning in commerce and would discourage companies or individuals from deliberately monopolizing common English words or phrases.  All data is public. There is no “right to privacy” about a trademark application. 

Monday, May 11, 2015

Social unrest can lead to some creative names for products for possible trademarks


This may sound like a frivolous idea for a trademark, but I noticed a neat name for an ice cream product at a vendor stand in Baltimore, on North Ave, near the MICA Art Center where the Maryland Film Festival this weekend was held.
  
Donald Trump (“The Apprentice”) would probably regard selling ice cream as noble as selling lemonade (the very first assignment in that series).  There was one flavor called “Chocolate Lives Matter”, most applicable given the recent unrest in that city.
  
I wondered if it was trademarked, or will be.  It does sound like a creative word mark.  On the other hand, I would not think that the aphorism “Black Lives Matter” should be trademarked, because it is a social and political slogan fundamental to human rights. 
   
I haven’t checked USPTO yet.

  

Wednesday, May 06, 2015

GOP House and Senate bills appear to make progress against patent trolls


Recent both the Senate and House in a GOP controlled Congress have taken up the problem of patent trolls. Electronic Frontier Foundation has an article by Adi Kadmar here. 
  
The Senate has the Patent Act (S 1137) and the House has the Innovation Act (HR 9).  Both would be helpful in requiring much more detailed disclosures and transparencies from plaintiffs about the details of patent claims.  The Senate would go further in protecting end users (or products like wifi routers, for example), when a manufacturer is also named as a defendant first.
  
S 1137 was introduced by Charles Grassley of Iowa, and is here here on govtrack.  The short title is “Protect American Talent and Entrepreneurship Act of 2015”. The full title is “A bill to amend Title 35, United States Code, to amend the Leahy-Smith America Invents Act to make improvements and technical corrections, and for other purposes.” Govtrack rates it as having a 19% chance to pass.
   
Hr. 9 was introduced by Bob Goodlatte (R-Va) and is here on Govtrack and is rated to have a 36% chance of passage. 

The text for the Senate bill is here  but has not been recorded by Thomas.
  
The text for the House bill is here

A site called Unified Patents keeps track of the trolling problem. 

Friday, May 01, 2015

Patent trolls and the concept of "laches"


There is another important concept that applies to controlling patent trolls, and idea called “laches”, as explained in this article by Vera Ranieri at Electronic Frontier Foundation, here.  A patent owner may not reasonably sit on a potential claim for years so that potential targets lose the ability to defend themselves.
  
Wikipedia describes "laches" as a synonym for "equity", here
       
EFF wrote a brief for the Federal Circuit for SCA Hygiene v. First Baby Products.  In a copyright (rather than patent) case last year, Petrella v. MGM, the Supreme Court had decided that laches does not apply in copyright cases.  
 
Note that in the video above, John Oliver speaks about patent trolls (from UNC, on TV blog April 23). 

Wednesday, April 08, 2015

Andraka's medical innovation shows that inventors have an incentive to get patents "too early"


There has been some attention to the fact that teen researcher Jack Andraka got a patent for his new test for proteins associated with early pancreatic cancer, even as early as age 16 in early 2013, as with this story on WTOP.
  
In my review of Jack Andraka’s book “Breakthrough” (March 18, 2015, Book reviews blog), I noted the controversy documented on some websites that Andraka had sought a patent even before publishing a peer-reviewed paper or official testing by the FDA.
  
But apparently, lawyers do encourage inventors go get patents as soon as possible on medical devices, even if it may take years to get them approved for commercial use.  Maybe that’s to protect the inventor from copycats.  It’s easy to imagine how that could be a problem with medicine and pharmaceuticals. 
  
In the meantime, Mr. Andraka can look forward to starting the “adult life” (to quote the WB series “Jack and Bobby”) with four years at Stanford (and meet Mark Zuckerberg nearby), and then presumably four years of medical school.  It’s hard for anyone, even a “Clark Kent” from another planet, to beat this schedule.
   
Developing a commercially viable clinical test is certainly indicative of great workplace habits, attention to detail in finishing a repetitive set of tests.  College and medical school (like high school) is about something else, absorbing huge amounts of information and being tested on it, as well as problem-solving (for the workplace, later). 



Update: April 9

On the NBC Today show, Jack was quoted as saying that it should take about five years for the FDA process for approving the test for regular use to take place.  I don't know if the formal tests have started yet. 

Monday, March 16, 2015

A practical lesson in trade dress, for sports


Maybe there's a reason why trademarks matter. On Saturday night, as I rode in on the DC Metro to the bars, a man saw my Washington Nationals' cap and kept saying "Wisconsin".

No, he didn't know that the curly-W was the Washington National's trademark, or at least the trade dress.

Yes, the appearance of a mark identifies the brand.

The hat got attention at the Town DC, too.

Thursday, March 12, 2015

Cato plays devil's advocate on patent reform in international areas


Lego is trying to ban the import of certain competing toy products, especially those marketed toward girls.  Cato Institute reports the matter here in a piece by K. William Watson.  He then goes into discussion of whether the International Trade Commission should get into “protectionist” disputes.  Cato argues that government agencies should not be settling international patent disputes;  court reform should happen instead.
  
One incongruity is that Lego’s patent for its “toy building block” had expired in 1988,  

Wednesday, February 18, 2015

Honeywell files lawsuit against Nest over programmable thermostat, making silly patent claims


Vox is reporting on what seems to be an abusive patent infringement lawsuit by Honeywell against Nest Labs for the Nest New Learning Thermostat, for features that even include “including grammatically complete sentences” in programming the device.  The link for the story by Matt Macari here.
 
Nest’s own site is here
   
One aspect of the action is that it was taken also against retailers, including Best Buy, who, according to the way patent law works now, are potential defendants, at least with regard to possible injunctions.

The patents listed in the article would be legitimate (morally) if an actual invention was behind the capacity claimed (possibly including the software or firmware code).  But there should be nothing wrong with another company coming up with accomplishing the same capability or functionality a different way.

Programmability would be important for homeowners away for a long time, who need to make the heating and air conditioning respond to sudden weather extremes.
   

My own thermostat is about 25 years old.  The heating company says it is still OK (and we are in a record cold wave now, so it isn’t funny).  But the action could affect what kind of replacement thermostats it can install,  or what a homeowner could order (from Amazon, Ebay, etc).  Remember that “bimetallic strip” in Chemistry 101? 

Monday, February 09, 2015

Time Magazine notes that many simple phrases have gotten trademarked


The February 16, 2015 issue of Time Magazine, on p. 59, has a “Roundup” of “Proprietary Phrases” used as trademarks, or at least proposed.

Rahcie; Zoe filed an application for “I Die” in 2008.  Paris Hilton trademarked “That’s Hot” (from “Simple Life”) in 2004 and sued Hallmark in 2007 for using it on a card.  Donald Trumped trademarked “You’re Fired”.  The star of “Jersey Shore” got the right to use “Snook!” on shoes and handbags.  Ryan Lochte (the Olympic Swimmer) is still pending with “Jeah!”  But remember that phrase had been used in “Amos ‘n Andy” by the Kingfish. And we have Taylor Swift with "This Sick Beat". 

I think this is an abuse of the trademark concept.  Maybe if the phrase isn't monopolized it is OK.  

Tuesday, February 03, 2015

Does vigorous enforcement of patent, trademark and copyright protect jobs? Libertarian university think tank says, not really


Mercatus Research at the George Mason University in Fairfax VA has a paper by Eli Dourado and Ian Robinson, “How Many Jobs Does Intellectual Property Create?”, link here. The paper takes up the legal protections of copyright, trademark and patent. 
  
While noting that the automatic copyright of a blog posting doesn’t generally function as a strong economic incentive to create and self-publish content, and acknowledging the letigimacy of concerns about piracy, trademark and patent may in practice be more critical.  But trademark, it says, doesn’t have a lot of value beyond the very obvious one of branding a product or service with the reputation of a provider for the benefit of consumers.  That would seem to downplay the importance of a connection between Internet domain names and trademark. And patent law opens the concept of patent up for easy abuse by trolls. 
  
The paper notes that the generation or protection of jobs in the traditional sense does not protect or promote economic prosperity in the long run.  

Wednesday, January 28, 2015

Taylor Swift trademarks "This Sick Beat"


Taylor Swift has added to the controversy over trademarking an individual phrase, “This Sick Beat”, for a line of merchandise.  Vox Media, in a piece by Kelsey McKinney, explains here the idea that "consumers should pay artists for their music (no more "it’s free’) but artists are forced to use trademark law more to brand merchandise that they want to sell.  They may stretch it a bit.  What happens if someone sets up a domain called "This Sick Beat"? 

Tuesday, January 06, 2015

No, trademark law doesn't stop a newspaper from printing someone's name without permission


A Republican Frederick County MD county council member threatened to sue the local newspaper the Frederick News-Post for printing his name without authorization. 
   
I can’t imagine any justification for this under trademark law.  The Frederick paper has a long editorial debunking the threat here and refers to law professor Eugene Volokh.  Would the same reasoning protect amateur bloggers?   EFF says so, but some of the arguments against “gratuitous publication” by “amateurs” under the sights of search engines has never really been tested in court – although rulings in 2000 about hyperlinks might provide some guidance.  CNN has an extended story here