By Andrew Goldberg
Apple Steps in for App Developers
In its motion to intervene, filed late Thursday in the Eastern District of Texas, Apple argues that it should be permitted to participate in the case because it has a financial stake in its outcome.
"Apple's rights will not be adequately protected by the current defendants in the case, because Lodsys has chosen to assert these claims against Developers who are individuals or small entities with far fewer resources than Apple and who lack the technical information, ability, and incentive to adequately protect Apple's rights under its license agreement," Apple's lawyers--Eric Findlay, of Tyler, Texas, firm of Findlay Craft, and by lawyers at Simpson Thacher--write. [Download Apple's Motion to Intervene].
Along with its motion to intervene, Apple also filed a proposed answer and counterclaim, asserting that its license to Lodsys's patents also covers its independent app developers. "Because Apple is licensed to offer products and services that embody the patents in suit to its Developers, under the patent law doctrines of exhaustion and first sale, Developers are entitled to use, free from infringement of the patents in suit, those products and services to which Apple is licensed," the company's lawyers argue. [ Download Apple's Proposed Answer and Counterclaim].
For more on the Lodsys litigation, see The Prior Art's earlier post, App Backwards: Lodsys, Texas Troll, Targeted in Patent Suit.
Tattoo Removal Gets the Hollywood Treatment
How do you remove a really costly tattoo?
As the legal wrangling continues between Warner Bros. and S. Victor Whitmill, the tattoo artist who designed Mike Tyson's famous face art, over the allegedly infringing tattoo that found its way onto the face of the character played by Ed Helms in The Hangover Part II, a resolution to the Hollywood copyright fight could ultimately turn on... special effects.
Hollywood, Esq, The Hollywood Reporter's legal blog, reports that if the parties are unable to reach a settlement by the time the movie is released on DVD, the studio has offered to digitally alter the tattoo that encircles Helms' left eye in the movie.
"Warner Bros. does not intend to make any use of the allegedly infringing tattoo after the film ends its run in theaters because Warner Bros. will digitally alter the film to substitute a different tattoo on Ed Helms’s face," lawyers from Schiff Hardin, counsel for the studio, wrote in a brief opposing an expedited trial in the case.
As The Prior Art previously reported, Whitmill sued Warner Bros. in April for copyright infringement, alleging that the tattoo in the movie is a duplication of the distinctive design he created on Mike Tyson's face. While Whitmill sought an injunction that would have kept the film out of theaters, a Missouri federal district court judge declined that request but allowed the infringement suit to proceed.
Even if the famous Tyson tattoo is ultimately replaced by a different design in the DVD version of the movie, Whitmill is sure to ask for a substantial sum in damages. The blockbuster sequel, which opened over the Memorial Day weekend, has already grossed close to $350 million at the box office.
A New Hurdle for Patent Reform
In early March, not long after the U.S. Senate passed patent reform by a vote of 95-5, Patent and Trademark Office Director David Kappos told The Prior Art in an interview in his suburban Virginia office that he was "off the charts optimistic" that a similar bill would come out of the House. "[House Judiciary Committee] Chairman [Lamar] Smith has already stated that a bill will be coming out this month-- the month of March," he said.
Three months later, that bill still hasn't reached the House floor. What's behind the hold up in the House?
The latest hurdle, according to Politico, appears to be Republican infighting. Just this week, two powerful Republicans--Appropriations Committee Chairman Hal Rogers and Budget Committee Chairman Paul Ryan--sent a strongly worded letter to Smith demanding changes to the patent reform bill. Their gripe? The bill would give the PTO the power to collect and spend its own fees, thereby insulating it from Congress's appropriation power.
The Republican objections, couched in terms of the deficit, threaten to scuttle a planned vote on the measure before the July 4 recess.
“Putting PTO funding on auto-pilot is a move in exactly the wrong direction, given the new Republican majority’s commitment to restrained spending, improving accountability and transparency, and reducing the nation’s unparalleled deficits and debt,” Rogers and Ryan wrote in their letter.
Even David Addington, a former top aide to Vice President Dick Cheney and longtime advocate for the expansion of executive branch authority with regard to Congress, weighed in this week, authoring a Heritage Foundation memo on patent reform that also took issue with the provision that would make the PTO self-financing.
“Neither the junior most clerk in a federal agency nor the President of the United States may spend a dollar from the Treasury for any purpose unless Congress has by law appropriated that dollar for that purpose,” he wrote.
But most observers agree that the huge backlog hampering innovation at the PTO exists largely because the agency is underfunded, in part because Congress doesn't allow it to hold onto the money it collects in fees.
As it turns out, Kappos was right to add a caveat to his optimism about getting patent reform out of Congress. "If there’s anything I’ve learned here in my 18 months in Washington, D.C., it’s that prognosticating on Congressional cycles is a very, very risky thing to do," he said after the Senate vote. "It’s easier to predict whether the Yankees are going to have another great season this year and win another pennant."