The Prior Art

Microsoft Joins Article One's New Preemptive Troll-Fighting Service

By Andrew Goldberg

Article One Partners, a New York-based startup that crowdsources the search for prior art by rewarding researchers who find evidence that can be used to invalidate questionable patents, announced last week that Microsoft Corporation has signed on to its latest initiative to thwart patent suits by non-practicing entities (NPEs).

 The new service, called Litigation Avoidance, is designed to help companies target poor quality patents before find themselves contending with them in court as a result of litigation launched by NPEs, which are often perjoratively as patent trolls. Previously, Article One and its global network of scientists and technologists focused on assisting companies once they'd already been sued.

Microsoft, the first official member of the new preemptive patent protection program, will pay Article One an undisclosed fee to participate in Litigation Avoidance.

"NPEs continue to actively target large technology companies and often with portfolios of questionable quality,” said Bart Eppenauer, Chief Patent Counsel at Microsoft, in a statement. “Litigation Avoidance gives businesses another tool to address patent quality issues prior to litigation to reduce risk and potential litigation cost.”

The software giant is a frequent target of trolls. For instance, Eolas, a patent-holding company, won a $521 million jury verdict against Microsoft in a 2003 patent suit over Internet Explorer plug-ins, before the case was remanded and the parties reached an out-of-court settlement. Last year, NTP, which extracted a $612 million settlement from Research in Motion, targeted Microsoft in another patent infringement suit. That suit has been stayed until the Patent and Trademark Office resolves the validity of the smartphone patents at issue. 

According to reporting by Reuters’ Alison Frankel, Article One will select the patents that it chooses to study in one of two ways: In one scenario, member companies can request ten specific studies of patents. In the other, Article One--based on its own analysis of when the certain patents were acquired, which NPEs purchased them, and how likely they are to be asserted--will decide which patents to ask its network of purportedly more than 1 million researchers to investigate.

Article One’s crowdsourcing initiative is one of several new business models aimed at neutralizing NPEs at a time when companies are exploring various ways to shore up their patent defense capabilities. RPX Corporation-- a self-styled defensive patent aggregator that caters to companies concerned about becoming troll targets--went public last month. RPX  buys up patents to keep them away from NPEs, then licenses them to clients for an annual subscription fee. Microsoft is also an RPX customer.

Article One, a privately held company which won the Silicon Alley Insider 2009 Best Startup contest, has raised more than $8 million in venture funding. So far, it has paid out more than $1.3 million to members of its patent research community in individual awards of $5,000 to $50,000.

The company's crowdsourcing initiative isn't the first of its kind in the patent realm. For instance, the PTO, in cooperation with New York Law School’s Peer to Patent project, has even launched its own modest, one-year pilot initiative to crowdsource the search for prior art that might not otherwise be found during the patent examination process.

Straight Outta Marshall: Local Lawyer Gilstrap Tapped to Replace Ward

By Andrew Goldberg

When Judge T. John Ward--the man most closely associated with turning the Eastern District of Texas into a patent litigation hotbed--retires in October, his likely successor shouldn’t have much trouble finding his new workplace.

After all, James Rodney Gilstrap, the 54-year-old Marshall, Texas, lawyer nominated last month by President Obama to succeed Ward, works right across the street from the federal courthouse where Ward presides, at the offices of Smith & Gilstrap, the law firm he co-founded in 1984. 

When it comes to substantive judicial policies, court observers don’t expect Gilstrap, a former Harrison County Judge, to stray too far from the path that Ward blazed.

“There will be style differences because every judge has a little bit different style on the bench, but I don’t anticipate the substance will change because Judge Gilstrap is familiar with how the local court is run,” says Michael Smith, a name partner at Marshall law firm Siebman, Reynolds, Phillips & Smith whose dealings with Gilstrap include the two men’s participation in a 16-year effort aimed at restoring the historic statehouse building that sits on Marshall’s town square. “The Eastern District judges tend to do a lot of things in similar ways, and I expect that he’ll follow in that tradition.”

Gilstrap, who was nominated by the Democratic president and has the support of the state’s two GOP senators, was one of three names on the shortlist formally recommended by the Texas Democratic delegation a year ago, according to Tex Parte, a sibling blog published by Texas Lawyer. The other two were Magistrate Judge Chad Everingham, who regularly presides over patent cases in the Eastern District of Texas, and Longview, Texas lawyer Eric Albritton, who served as co-counsel in patent infringement cases brought against Boston Scientific and Johnson & Johnson over cardiac stents that generated big jury verdicts for the plaintiff.

If confirmed, Gilstrap will likely inherit Ward’s packed patent docket, where the time to trial peaked last fall at just over three years. Much like Ward, who only tried one patent case before he came on the bench (He represented Hyundai Electronics in a $25 million patent infringement suit brought by Texas Instruments), Gilstrap also has only limited patent litigation experience, despite having served as local counsel in a number of patent cases. For example, he represents Bluestone Innovations Texas in an infringement suit brought against various foreign companies over LED technology, and defendant Capital One Financial Corp. in a patent suit brought by LML Patent Corp. against a number of large banks over patents on payment services. His representation, however, doesn’t appear to include the kind of big tech companies often dragged into patent suits in East Texas.

While it’s too soon to tell how Gilstrap’s ascension to the bench will affect patent infringement cases in the jurisdiction, Smith doesn’t believe that Gilstrap will be at a disadvantage. “He’s seen some patent cases. I don’t believe he’s actually tried one, but he has seen the cases go through the system for a number of years, so he’s familiar with patent litigation,” says Smith, who was planning to serve with Gilstrap as local counsel for co-defendants in a patent case before Smith’s client settled out.

Gilstrap, who declined an interview request, moved to Marshall after graduating from Baylor Law School in 1981, three years after receiving his B.A. magna cum laude from Baylor University. Before co-founding Smith & Gilstrap, where in addition to the occasional patent case his wide-ranging practice covered everything from oil and gas to real estate and probate law, Gilstrap worked as an associate at the law firm of Abney, Baldwin & Searcy from 1981 to 1984.

Smith first got to know Gilstrap personally during the 12 years that Gilstrap served as Harrison County Judge from 1989 through 2002. “My wife is the county treasurer, so he and my wife worked together for a long time in county government. Every four years, they ran together on the same ticket,” says Smith. (In Texas, the County Judge is the chief administrative position in county government, not a judicial office.) “I was going through some scrapbooks, and I found his picture at my wedding 15 years ago,” says Smith. “But it’s old Marshall family, so I’ve known him forever.”

Like Smith, Carl Roth of the Roth Law Firm is confident that things in Marshall won’t change too much with Gilstrap on the bench. 

“He’s very professional and even handed,” Roth says.  “He spearheaded several important projects for the county [as county judge], not the least of which was the restoration of the historic county courthouse and airport improvements, and he managed to do it without political controversy.”

Jeffrey Thompson, a Republican County Commissioner who worked with Gilstrap, a Democrat, on the Commissioner’s Court from 1995 to 1998, agrees that Gilstrap was adept at working across party lines on budget matters as County Judge. “We had no problems at all between party affiliations.  Anytime you’re dealing with votes, they can be construed as just Republican or Democrat. But during that time, I don’t think there was any straight Republican push or Democrat push,” he says. 

Thompson looked to Gilstrap as a mentor. “As a freshman commissioner coming on the court kind of green, I found his open door policy very helpful,” says Thompson, who is thrilled that Ward’s successor will come from the extended Marshall family.  “The candidate could come from anywhere across the United States,” he says.  “To fit the need locally right here from Marshall, it was very delightful.”

While judicial nominees are always subject to the vicissitudes of the Senate, court observers don’t see anything controversial about Gilstrap’s nomination.

“The two senators from Texas have wholeheartedly endorsed his candidacy. The White House has nominated him. He was recommended by the Texas Democratic delegation. He has literally dotted ever i and crossed every t that you can,” says Smith. “I’m just hopeful that there’s no unforeseen obstacle because of something unrelated to his nomination because I think his nomination is about as clean as a nomination can be.”

Gilstrap’s work ethic and experience in public service will serve him well on the federal bench, according to Thompson. “He’s not going to be blind-sided about issues that could come up during his tenure. He’s not going to shoot from the hip. He’ll do his homework. He’ll do a good day’s work. He’ll show up, he’ll suit up, and he’ll perform his duty. No questions asked,” says Thompson.

Copyright Suits Can't Keep Potential Blockbusters out of Theaters

By Andrew Goldberg

Copyright infringement suits hang over two highly anticipated blockbuster sequels set for release over the Memorial Day weekend.

In one case, a federal district court judge in Missouri ruled Tuesday that The Hangover Part II could open as scheduled Thursday, despite an attempt by tattoo artist S. Victor Whitmill to enjoin the film over its use of boxer Mike Tyson's famous face tattoo. Whitmill created the tattoo for Tyson, and it appears in the movie encircling the left eyes of both Tyson, who makes a cameo appearance, and the character played by actor Ed Helms.

Whitmill sued Warner Bros. in April for copyright infringement, alleging that the tattoo in the movie is a duplication of his distinctive creation.

“There is substantial similarity between the copyrightable expression in the Original Tattoo and the Pirated Tattoo,” Whitmill argued in his complaint, filed by lawyer Geoffrey Gerber of the St. Louis-based BrickHouse Law Group, on April 28 in the Eastern District of Missouri. [Download Whitmill Complaint]

“Mr. Whitmill has never been asked for permission for, and has never consented to, the use, reproduction, or creation of a derivative work based on his Original Tattoo, including the Pirated Tattoo,” the suit argues. “Nor has he ever been asked or agreed to the public display and distribution of a motion picture containing the Pirated Tattoo, or to the use of any of his other exclusive rights in the Original Tattoo under the Copyright Act.”

Represented by attorneys with Schiff Hardin, Warner Bros. argued that any delay in the release of the movie would cause it enormous financial losses while also subjecting the studio to massive damages claims by movie theaters over lost ticket sales.

“Plaintiff seeks to enjoin the distribution of a major motion picture--and to do so just days before its national release on more than 7,000 screens in over 3,600 theatres,” the Schiff Hardin lawyers wrote in their brief opposing a preliminary injunction. “The harm to Warner Bros. and numerous third parties from such an injunction would be devastating.”

District Court Judge Catherine D. Perry agreed, declining to deprive Hangover fans of a chance to see the sequel over the holiday weekend, but also, according to Gerber, delivering some sobering news to the studio about its potential liability at trial.

“Judge Perry said that my client has a ‘strong likelihood of success’ on the merits and will probably win the case at trial for money damages,” Gerber--who noted that the judge said most of Warner Bros.’ defenses were “just silly”--said in an interview with The Prior Art.

 “We lost a motion for a preliminary injunction, so we’re obviously disappointed that our client is being irreparably harmed by the widespread release of the movie,” said Gerber. “But at the same time, we understand and appreciate the judge’s concern for innocent third parties likely to be harmed by an injunction – like movie theaters – who shouldn’t be held responsible for Warner Bros.’ conduct.”

Frederick Sperling, a partner in Schiff Hardin’s Chicago office who is representing the studio, says that  “the court’s ruling protects the interest of the public as well as those of Warner Bros.” Sperling adds that “Warner Bros. believes the claims against it are without merit and intends to vigorously defend its rights.”

Although the amount Whitmill ultimately decides to ask for in damages will be based on how well the movie does at the box office and in DVD sales, there’s reason to believe the figure will be substantial. The Hangover grossed over $277 million in the U.S. and over $467 million worldwide, according to Box Office Mojo, a site that tracks box office results. Still, to be compensated, Whitmill must show how much the infringement itself contributed to Warner Bros.’ profits from the film.   

Calling Whitmill’s copyright claim “radical,” Warner Bros. argues in its opposition brief that “the very copyrightability of tattoos is a novel issue,” and that the plaintiff is not entitled “to control the use of a tattoo that he created on the face of another human being.” In any event, the studio says, the tattoo on the face of Ed Helms in the sequel constitutes a fair use parody of Tyson’s tattoo, and the plaintiff shouldn’t be allowed to sue over it now because he never objected to the use of tattoo in the first movie (Tyson made a brief, memorable appearance in that film as well). [ Download Warner Bros. Opposition to Injunction]

“They put the tattoo in every trailer and every single television commercial, and almost all of the print advertising. And they put an $80 million marketing budget behind it to sell this movie. That’s not a parody. It’s a straight up commercial use of someone else’s art,” Gerber told The Prior Art. “I saw absolutely no parody and the judge saw no parody,” he said.

Another film that won’t be prevented from opening this weekend but also still faces a copyright infringement suit is DreamWorks Animation’s Kung Fu Panda 2. That suit was filed against DreamWorks in February by Jayme Gordon, another artist.

Unlike Whitmill, Gordon, who is represented by Fish & Richardson and Duane Morris, never sought  to block the nationwide premiere of the sequel over the copyright issue. He is, however, hoping to take a big bite out of the studio’s past and future profits from the movies about Po, the paunchy Kung Fu-fighting panda.

Gordon claims that the studio copied many of the characters, plot elements, and settings in the movie from his illustrated literary works. Specifically, he alleges that Po, the portly panda voiced by Jack Black, is a virtual double for Kidd, a giant panda that Gordon first drew in the early 1990s. Gordon further contends that both pandas are supported by a group of the same five fighting animals and befriend small red panda kung fu masters who use chopsticks while fighting.

In an answer to the complaint filed on May 6, DreamWorks, represented by Foley Hoag and Loeb & Loeb, denies Gordon’s allegations. It acknowledges that while the plaintiff did indeed submit an unsolicited package to DreamWorks in October 1999, that package was rejected and returned uncopied in accordance with the company’s policy regarding unsolicited material. [ Download Panda - Answer by Dreamworks]. (Gordon filed an Amended Complaint in the case on April 19, reasserting his claims against the studio.) [ Download Gordon Amended Complaint]

DreamWorks also asserts several affirmative defenses in its court filing, including that its work was independently created and that Gordon’s suit, which wasn’t filed until more than two years after the release of Kung Fu Panda in 2008, is no longer timely.

Whatever happens at the box office, it’s sure to be a busy summer in court for Hollywood’s copyright lawyers.

Standing Still: Righthaven Litigation Campaign Hits New Roadblock

By Andrew Goldberg

Could it be the beginning of the end for Righthaven?

The Las Vegas-based copyright holding company, which has endured a string of legal setbacks in the last couple of months, suffered another one last week when a federal judge in Colorado halted all the copyright infringement suits brought by Righthaven in the state pending a review of whether the company has the legal standing to sue over an airport security pat-down photo originally published in the Denver Post.

"Because there are serious questions as to whether my exercise of subject matter jurisdiction over Righthaven's claim of copyright infringement is proper, I think it most prudent to stay the proceedings in all pending cases in this District in which Righthaven is the named Plaintiff," wrote Judge John Kane in an order issued last Thursday. "Should I find that I lack subject matter jurisdiction over Righthaven's claim of copyright infringement, it is likely that I will be required to dismiss all pending actions." [ Download Righthaven - Judge Kane Order]

The stay issued by the court in Colorado follows a decision last month by a federal judge in Nevada to unseal the licensing agreement Righthaven signed with its other newspaper partner, the Stephens Media-owned Las Vegas Review-Journal. That agreement, which was unsealed at the request of the Electronic Frontier Foundation, revealed that Righthaven had been granted the right to bring infringement actions but had not actually been granted full copyrights in the articles over which it was suing. 

Is The Dot Future Now? The ABC's of the New gTLDs

Last week, the House Judiciary Subcommitte on Intellectual Property, Competition, and the Internet held a hearing on ICANN's new generic top-level domain (gTLD) program, which would greatly expand the number of Internet suffixes to potentially include anything and everything from .music to .cars. At the hearing, congressmen from both sides of the aisle, as well as trademark owners, expressed concerns about the new proposal, ranging from the costs to the potential for trademark infringement.

Jeff Neuman, the VP for Law and Policy at Neustar -- a company that is serving as the technical registry backend provider for many new top-level domains -- attended the congressional hearing. As the head legal counsel for all the domain name registries, mobile registries, and media services at Neustar, and as the Vice Chair of the Generic Name Supporting Organization, a council that is part of ICANN's policy arm, Neuman is well acquainted with the new gTLD process. He agreed to help get Prior Art readers up to speed. The following is an edited transcript of our phone conversation:

The Prior Art (TPA): Who can apply to create and run a new gTLD?

Jeff Neuman:  This new round of generic top-level domains (gTLDs) is the first unlimited round that they’re opening pretty much ever.  So technically, it’s open to anyone. There are no restrictions on who applies. But it’s a very stringent process that’s been developed over the last seven years through ICANN’s policy development process and through consultations with governments around the world, intellectual property attorneys, and a whole host of industry associations and groups. There is a significant barrier to entry in the application fee itself. In order to apply, you have to pay ICANN an application fee of $185,000. Because of that, we see two types of applications: One type is for very large companies and large brand owners to expand their presence online, as a great marketing tool for those large companies. We also see, somewhat to a lesser extent, a market there for new generic spaces, whether that be for a .web, a .music, or a .hotel. So you can have some very generic spaces like that, but also a number of corporations have come forward that have expressed an interest in applying for a new gTLD to represent their company. Companies that have already come forward include Canon, Hitachi, and IBM.

TPA:  Are there any limits on what can be registered as a new gTLD?

Neuman:  It’s anything under the sun up to 63 characters. Remember, this is all to the right of the dot, so this is all at the top-level.

TPA:  So how will ICANN decide which gTLDs will be chosen?

Neuman:  There is a 350-page applicant guidebook that is in the final revision state. ICANN is supposed to come out with its very final one on May 30. There are a bunch of objective criteria that they have to use and they really try to make it as objective as possible so as not to bring any subjectivity into the  decisionmaking of saying, well, we like the example of a .television and a .radio but we don’t like the example of .law. It’s really not up to ICANN to make subjective decisions as to what words or strings they allow. It’s more of looking at who is the applicant. Does the applicant have the financial, technical, business wherewithal to actually run a top-level domain? For those that claim to represent what’s called a community, do they have community support to run that top-level domain?

TPA:  What about the potential for trademark infringement if one company registers a gTLD containing the trademark of another company?

Neuman:  If I wanted to apply for someone else’s trademark – For example, if I wanted to apply for a .apple and I’m not the Apple corporation, and I’m doing it in a way that infringes on Apple’s trademarks --  there’s a process for [the trademark owner] to come in and object to that. There are rules and restrictions. If I wanted to apply for something that’s deemed to be morally objectionable by governments or by certain classes of citizens, then there’s an objection process as well for that to make sure that I don’t apply for something like a .nazi, to make sure that governments are okay with what’s being proposed.

Google Loses Newspaper Copyright Case in Belgium

By Andrew Goldberg

Google is prohibited from publishing snippets of, or even linking to, articles and photos from Belgian newspaper websites, a Belgian appeals court ruled this week.

The decision, which upholds a lower court’s 2007 copyright ruling forcing Google to remove all content and links from French-and-German-language newspapers in Belgium, is surely a setback for the search giant, but is also potentially an even bigger blow to innovation in Europe.

“We believe that referencing information with short headlines and direct links to the source -- as it is practiced by search engines, Google News and just about everyone on the web -- is not only legal but also encourages web users to read newspapers online," Google told Bloomberg in a statement following the ruling.

The court's decision could impact Google's ability to introduce other news initiatives. More than a year before Google announced One Pass in the U.S., -- its forthcoming effort to help publishers sell digital subscriptions -- it unofficially unveiled Fast Flip, an experimental future news service designed to revolutionize the way readers browse their favorite publications on the web.

RPX Announces Price of IPO

RPX Corporation, which bills itself as a defensive patent aggregator and aims to neutralize NPEs (aka patent trolls) by buying up patents and licensing them to clients for an annual subscription fee, announced today that its initial public offering exceeded expectations, raising approximately $159.6 million.

The company, co-founded by Intellectual Ventures veterans John Amster and Geoffrey Barker, filed for the IPO in January and had hoped to raise $100 million. The offering, however, priced higher than anticipated, bringing in $19/share compared to an anticipated $16 to $18/share.

As of the end of March, RPX had lined up 80 clients, including hightech heavyweights like Google, Cisco, Nokia, and Verizon. It brought in $94.9million in revenue in 2010.

RPX began trading today on the Nasdaq exchange under the "RPXC" ticker symbol. The stock initially spiked to $24.36 before falling to $23.05 in early morning trading.

 

 

 

 

 

 

 

 

 

Federal Circuit Hears Arguments in Myriad Case

Oral arguments were under way at the U.S. Court of Appeals for the Federal Circuit Monday morning in the closely watched Myriad Genetics appeal (Association for Molecular Pathology, et al. v. USPTO, et al.), with a panel of three Federal Circuit Judges (Lourie, Bryson, and Moore) weighing whether human genes qualify as patentable subject matter.

Ruling in a case brought by several doctors' groups, the ACLU, and the Public Patent Foundation, New York federal district court Judge Robert Sweet last year struck down Myriad's patents on two genes related to breast cancer, holding that they merely covered isolated DNA from the natural world and thus were not eligible for patent production under section 101 of the Patent Act.

In his 152-page opinion [ Download Myriad Opinion], Sweet wrote: "It is concluded that DNA's existence in an 'isolated' form alters neither this fundamental quality of DNA as it exists in the body nor the information it encodes. Therefore, the patents at issue directed to 'isolated DNA' containing sequences found in nature are unsustainable as a matter of law and are deemed unpatentable subject matter."

As The American Lawyer reported in February, acting Solicitor General Neal Kaytal was to argue for the appellees along with attorneys for the ACLU and the Public Patent Foundation, marking the first time that a Solicitor General has argued at the Federal Circuit.

In a case with implications for the entire biotechnology industry, Kaytal will attempt to explain why the government now thinks that genes should not be patentable, despite the fact that the USPTO has historically disagreed and has been issuing patents on isolated DNA for more than 30 years.

For a good background on the issues likely to be raised at oral argument, check out Joe Mullin's previous  coverage of the district court's ruling and Andrew Cohen's discussion of the case at The Altantic. For the even more ambitious, an audio recording of the argument will be made available on the Federal Circuit's website later today.

 

 

 

 

Cloudy Copyright Forecast for New Amazon Music Service

By Andrew Goldberg

Amazon's push to beat Google and Apple to the punch in unveiling its new "music locker" service this week could cause the company to face a combination of new copyright challenges.

The e-commerce giant's new cloud-based music service known as Cloud Drive, which lets users store the songs they purchase on Amazon's servers and play them from almost anywhere, is certainly convenient. The problem is that it might not be entirely legal under copyright law, according to some people in the music industry.

At issue is whether a service that offers consumers access to music via the cloud must first acquire licenses from the music labels that control the copyrights on that music. Amazon says that it doesn't need a license. Company spokesperson Cat Griffin tells Ars Technica that "the functionality of saving MP3s to Cloud Drive is the same as if a customer were to save their music to an external hard drive or even iTunes."

Peter Kafka at All Things Digital points out that many people in the industry agree. Sony spokeswoman Liz Young, however, told Reuters that it's "keeping all our legal options open."

MP3Tunes CEO Michael Robertson, whose startup has been embroiled in a closely watched case after offering a similar "music locker" service, told Techcrunch that “Amazon’s entrance into the business is enormously significant because it will dictate whether Apple or Google enter into a license for their own service or go the unlicensed path. If the labels take no action against Amazon, then expect Apple and Google to follow in their footsteps."

The copyright issue presented is one of first impression for the courts, and the debate will remain unsettled at least until the EMI v. MP3tunes case is resolved. In that case, which is pending in the Southern District of New York, various record labels and music publishers sued MP3tunes, alleging--among other things--that MP3tunes is directly liable for copyright infringement for allowing users to publicly perform, reproduce, and distribute their copyrighted works. [Download EMIvMP3tunes Complaint.]

Specifically, plaintiffs argue that by allowing multiple users to stream songs from the same storage system, MP3tunes violates the labels’ exclusive right to publicly perform those works. In its motion for summary judgment, MP3tunes counters that argument by claiming that it actually maintains a separate copy of each song for every user that uploads it.

"What is retrieved from the system is the user's own unique copy--that is a copy of the music file that was created as a result of that user's direction to store the original file on the MP3tunes system," the company’s lawyers from Duane Morris wrote in their brief. "To our knowledge, no court has ever ruled that rudimentary software storage functionality constitutes copyright infringement..."

Indeed, the Second Circuit's ruling in the 2008 Cablevision case (Cartoon Network, LP v. CSC Holding, Inc.) offers hope to MP3tunes, and in turn to Amazon. There, the court ruled, much to the relief of couch potatoes everywhere, that a DVR system that allows cable viewers to record their favorite shows does not violate copyright law. The court reasoned that Cablevision was not violating the plaintiff's exclusive public performance right because it was only transmitting s single copy of show recorded by a single user, and was not transmitting that show publicly to multiple subscribers.

Provided that Amazon--by storing separate copies of every song purchased and uploaded to the locker--is providing a service similar to Cablevision’s, it should enjoy the same immunity from liability under copyright law. The music labels could take their chances and challenge Amazon in court, but they're not likely to prevail, according to former e-Music CEO David Pakman. Then again, copyright law is likely to remain murky in this area for quite some time.

They don't call it the cloud for nothing.

Recent Patent Litigation Weekly Columns

 

Much of the patent news that was published on this blog has been moved to the IP Insider section of the Corporate Counsel website. Here's a list of the last several Patent Litigation Weekly columns—

 

Oct. 25, 2010: Big Patent-Licensing Deals Push Acacia Earnings to a Stunning High

No one has filed more patent lawsuits against corporate America than Acacia Research. But Acacia CEO Paul Ryan says corporations are embracing, not rejecting, his business — and the company's new numbers prove it.

 

Oct. 18, 2010: Call it the Canadian Bilski

Citing U.S. patent laws, rejecting the European view, and opening the door to a potential rush on business-method patents up north, a Canadian judge says Amazon's controversial 'one-click'

 

Oct. 4, 2010: NPE Makes Offer Some Companies Can Refuse

Offered the chance to cough up $80,000 apiece to license a patent once held by Intellectual Ventures, drugmaker Novartis and auto parts manufacturer Tenneco decided to fight back instead.

 

Sept. 27, 2010: Uniloc Keeps Filings Software Suits, and NPE Patents Fare Poorly at Trial

Undeterred by its district court loss to Microsoft — and waiting on a Federal Circuit appeal in any case — Uniloc sues dozens of companies for 'software activation.' Plus, a new study shows that troll patents don't hold up at trial.

 

Sept. 20, 2010: Skyhook Takes a Shot at Google

This week: The search giant faces a new kind of patent lawsuit — one brought by (imagine!) an actual competitor in an increasingly important space — smartphones

 

Sept. 13, 2010: Costco v. Omega — The Patent Angle

The world's largest chipmaker hopes to use a Supreme Court case about Omega watches to 'correct' the Federal Circuit's rules on international patent exhaustion

 

Aug. 30, 2010: Inside Google's Second Patent Trial

Earlier this month, lawyers from Google and Yahoo dismantled a notorious Spangenberg patent. That leaves Google's perfect troll-fighting record intact.

 

Paul Allen v. The Internet

Former Microsoft executive and billionaire Paul Allen sued several major Internet companies and three large retailers for patent infringement today, asserting that four patents originating at Interval Research, Allen's dot-com era think tank, cover basic web browsing and e-commerce technologies.

The lawsuit [PDF] was filed by Interval Licensing LLC, a patent-holding company owned by Allen, and names eleven companies as defendants: AOL, Apple, eBay, Facebook, Google, Netflix, Office Depot, OfficeMax, Staples, Yahoo, and YouTube.

Interval Research was founded in 1992. It closed its doors in 2000, but the lawsuit is necessary to monetize the investment that Allen made in the organization, said David Postman, a spokesman for Allen.

The patents cover "a variety of key processes in e-commerce," said Postman. "Interval Research was early—and right—on key pieces of the Internet," said Postman. "It's important now to protect that investment. We believe these companies are using that technology, in both e-commerce and search."

Allen is one of the world's richest people, with a fortune that Forbes magazine estimates as over $13 billion.

A Wired magazine profile of Interval Research suggests that by 1999, the institute was struggling, with Allen having spent upwards of $100 million on research and not much to show for it. "Interval always had a special buzz and a collection of talent that, even in the annals of technological genius, stands out."

The four patents-in-suit were filed between 1996 and 2000.

They are:

• No. 6,263,507, "Browser for Use in Navigating a Body of Information, With Particular Application to Browsing Information Represented By Audiovisual Data."
• No. 6,034,652, "Attention Manager for Occupying the Peripheral Attention of a Person in the Vicinity of a Display Device."
• No. 6,788,314, "Attention Manager for Occupying the Peripheral Attention of a Person in the Vicinity of a Display Device."
• No. 6,757,682, "Alerting Users to Items of Current Interest."

The suit was filed in the Western District of Washington. Interval Licensing is represented by Susman Godfrey, a Texas-based law firm that focuses on contingency-fee patent lawsuits, and Heim, Payne & Chorush is a smaller patent firm based in Houston.

More documents:

• Interval Licensing press release on the lawsuit
• Interval Licensing v. AOL et al. complaint [PDF]
• Coverage from Wall Street Journal

Cross-posted at Corporate Counsel.

 

 

Citing Possible Bias, ACLU Asks Rader to Recuse Himself in Myriad Case

With the U.S. Court of Appeals for the Federal Circuit set to consider a landmark case over the validity of human gene patents, attorneys for the plaintiffs in the suit are asking the court's chief judge to recuse himself from the matter—before the panel that will hear it has even been selected.

In a motion filed quietly in late June, Christopher Hansen of the American Civil Liberties Union and Daniel Ravicher claim that remarks made by Federal Circuit Chief Judge Randall Rader at a biotechnology industry event show he may have a biased view of the case in question, Association of Molecular Pathology et. al. v. U.S. Patent and Trademark Office et. al, and should not be one of the three judges to decide the appeal.

Questioning Rader's objectivity is an unusual move that underscores just how high the stakes are in the case at issue, in which several doctors' groups have joined the ACLU and PubPat in seeking to invalidate patents on two genes related to breast cancer that are owned by Utah-based Myriad Genetics--and, more broadly, to challenge the legality of the thousands of genetic patents already in existence.

Law360 Calls Lawyer-Owned Shell Company a "Public Interest Group"

Our competitors are never afraid to call a spade... a public interest group.

Law360 seems to have a pretty flexible definition of that term. Last month, it included Americans for Fair Patent Use. Who is so concerned about such fairness? That would be F&B LLP, the Texas law firm that owns Americans for Fair Patent Use, which is a limited liability company set up to prosecute a false marking lawsuit filed in East Texas on July 14. The suit, against Apple, Sprint, Samsung, and Verizon, alleges that various smartphones made by those companies have false patent marks.

Did AFPU magically transform into a "public interest" group because  false marking is a qui tam action? Is it because the plaintiff has the word "fair" in it? Since the plaintiff's name actually ends with "LLC" we're at a loss as to how you spin this one.

Only Law360 used the term "public interest group" in its reporting. But—at the risk of sounding like we're tooting our own horns here—could one of the many web publications that obsess over lawsuits against Apple have bothered to correctly name the plaintiff here? Not only is the law firm clearly named in the corporate disclosure document [PDF] filed the same day as the complaint, but F&B actually fesses up to its ownership of AFPU on the fourth page of the complaint itself [PDF].

As we've discussed in an earlier column, a majority of false marking suits are being filed by lawyers themselves, along with a few serial plaintiffs.

Photo via Wikimedia / Snek01

Eben Moglen on Bilski, software patents, and big pharma

This interview is part of a series following the Supreme Court's Bilski decision, which left the laws on what you can get a patent on largely as they are, after a four-justice minority failed to ban "business method" patents.

Columbia Law School professor Eben Moglen heads the Software Freedom Law Center (SFLC) and wrote the group's amicus brief in Kappos v. Bilski. [PDF]

Moglen's position on the subject of software patents—that they should be banned—is, to say the least, outside the mainstream in legal circles. It has, however, garnered support among software developers and other techies, especially those who work in the world of open-source and free software.

Moglen's critique of the patent system extends well beyond the software issues he writes about, however. He suggests, for instance, that the 20-year monopoly granted by a patent is the product of a bygone era. And though he rejects the notion that he is "anti-patent," he says that the patent monopoly grant should be subject to a rigorous cost-benefit analysis, not simply handed out at the "monopoly window" that he believes the current Patent and Trademark Office represents.

The Prior Art interviewed Moglen about his views on the Bilski decision, the future of software patents, and how patents affect innovation.

Q: What's your opinion of the Bilski decision?

The decision is one of those that clearly shows why it has come down on the last day of the term after being argued early. When you see a case like that come down, one of the things that occurs to you is that a majority has fallen apart. The justices agreed about less than they thought.

What's so bad about "business method" patents? Small PR firms "goosed" by a patent on press releases

Those who have read the U.S. Supreme Court’s Bilski decision know that it involved a big "almost" — a four-justice minority that wanted to ban business method patents. While that's an ill-defined term, it's clear that such a ruling would have effectively invalidated many patents already involved in litigation.

Lawsuits asserting business method patents continue to be filed. In Marshall, Texas, a patent that seems to cover the act of distributing a press release online (No. 6,370,535) was used to sue six companies that are in that business; it was filed on Friday June 24—just three days before the Court ruled in Bilski decision that business methods will continue to be patentable. The plaintiff  behind the suit is a strangely named patent-holding company: Gooseberry Natural Resources, LLC.

One defendant targeted by Gooseberry who spoke with The Prior Art, eReleases owner Mickie Kennedy, reacted as many small companies do when hit with such a lawsuit—surprise that a patent claiming to cover what his business does could even exist.