Posts Tagged ‘infringement’

SOPA, PIPA, and a Criminal Copyright Indictment Against Megaupload.

Saturday, 21 January, 2012 09:00 Written by Rene Dial 0 Comments

By Rene Dial

What a week in the world of intellectual property protection!

Okay I am trying to figure this one out.  Legislation is/was being pushed through with regard to SOPA and PIPA.  Read Danie Roy’s article here.  Then a couple of days after Wikipedia, Craig’s List, Google, and a bunch of other sites were down in protest to SOPA and PIPA the government shows that they do have the power to stop online piracy overseas. On Thursday the US Justice Department and FBI shut down Hong Kong based company Megaupload, seized $50 million in assets, and begun extradition proceedings in New Zealand for the company founder according to Robot6.comicbookresources.com.

Let me get this right the government has the ability to shut down a site for alleged copyright infringements, freeze assets, extradite those involved from other countries but yet we need SOPA and PIPA to allow us to basically do what was just done to Megaupload.  Not sure about you but how about we utilize the laws we already have in place instead of enacting new broader legislation.

To be honest I never heard of Megaupload before this hit the news.  I am one of those guys that believes in paying the artist so that the artist can continue to put out music or movies that I love.  A lot of the problems with the industry now is getting the product to the masses in a cheaper and more efficient way.  The music industry has done a great job but movies are a different story.  A person can go to a Redbox and rent a movie for a dollar but if they want to stream the movie from a website or cable provider the provider wants somewhere between $5 to $7 to stream the same movie and they do not have to deal with inventory or with maintenance of a box somewhere. Okay I will stop my rant and get back to Megaupload.

According to ABCnews.go.com the indictment alleges that Megaupload caused a half-billion dollars in copyright losses.  A copy of the indictment can be found at onlinewsj.com.  As this is a criminal indictment I am curious to see how this plays out and if the hearings will occupy the news stations as some other well known criminal trials have in the past.  On ABC.com the article had a quote that was placed on Megaupload before the site was taken down. “Ira P. Rothken, a lawyer for Megaupload in Novato, Calif., said “the allegations do not appear to have support in the law, and the company is going to vigorously defend against them.”"  Something tells me that they really do not have a choice but to vigorously defend themselves as they are facing criminal not civil charges.

Have a great weekend!

A Refresher on “Patent Pending”

Thursday, 29 December, 2011 09:11 Written by Scott Nyman 0 Comments

Scott Nyman

 

Not quite a year ago, I posted an article about the term, “patent pending” and its sufficiency towards protecting your invention. Since that time, I’ve had a good number of people ask me just what the term means. I’ve also had people ask me, “so now that my patent is pending, I can sue people?” It seems the demand for these answers is high, so a refresher on “patent pending” seems appropriate.

Let’s start with the basics. What exactly does “patent pending” mean? The term “patent pending,” or something similar such as “patent applied for,” is used by a manufacturer or seller of an article to inform the public that an application for patent on that article is on file in the United States Patent and Trademark Office. Use of these terms should not be abused, for example by printing “patent pending” on a product for which no patent application has been filed. The law imposes a fine on those who use these terms falsely to deceive the public.

However, just because a searching party cannot locate a patent application on the invention through popular searches, such as Google Patents or the USPTO website, does not mean that no patent application is pending. Most patent applications filed on or after November 29, 2000, will be published 18 months after the filing date of the application, or any earlier filing date relied upon under Title 35, United States Code. Otherwise, all patent applications are maintained in the strictest confidence until the patent is issued or the application is published.

Once a patent application has been filed with the US Patent and Trademark Office, the disclosed invention may be considered “patent pending.” This holds true for both provisional and non-provisional patent applications. Provisional patent applications are not examined by the USPTO for patentability, but provide a disclosure of the invention with enough sufficiency to receive a filing date.

Non-provisional applications are examined by the USPTO, and may result in the issuance of a patent. In order to have any patent protection, an inventor is required to file a non-provisional application. To keep the filing date of a provisional patent application, an applicant is required to convert the provisional patent application into a non-provisional patent application within one year of filing the provisional.

So, can you sue if you believe someone is infringing on your patent pending invention? Not just yet. In short, the USPTO states, “These phrases have no legal effect, but only give information that an application for patent has been filed in the Patent and Trademark Office. The protection afforded by a patent does not start until the actual grant of the patent. False use of these phrases or their equivalent is prohibited.”

The term “patent pending” describes the period between the filing of a patent application with the USPTO and the final disposition on the application, which may include abandonment, rejection, or allowance of the application. Having a “patent pending” status does not afford an applicant any patent protection, it simply puts would-be infringers on notice that they may be subject to a lawsuit if the application issues into a U.S. patent.

Furthermore, 35 U.S.C. 287 provides the notice requirements for issued patents, stating, “In the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice.”

By providing notice to the public that your invention is in the process of potentially receiving patent protection, you are providing notice that continued potentially infringing conduct related to the applied-for invention may result in patent infringement. Although patent protection may not begin until the date a patent is issued, including a notice that such date is pending may help allow an inventor claim satisfaction of the notice requirement being met close to the actual date issue date of the patent, so long as the inventor promptly complies with the patent marking requirements of 35 U.S.C. 287.

However, the courts have routinely decided that “patent pending” alone is insufficient to support a finding of willful infringement. The Federal Circuit has stated, “A patent pending notice gives one no knowledge whatsoever. It is not even a guarantee that an application has been filed.  Filing an application is no guarantee any patent will issue and a very substantial percentage of applications never result in patents. What the scope of claims in patents that do issue will be is something totally unforeseeable.” Conopco, Inc. v. May Dep’t Stores Co., 46 F.3d 1556, 1562.

I Got Sued By A Copyright Troll, Part IV: Discovery Shenanigans

Monday, 26 December, 2011 05:55 Written by Aaron Thalwitzer 0 Comments

We’ve discussed the basics of pre-suit strategy, defenses both procedural and on the merits. Now let’s follow these cases through their usual trajectory to try and answer a common question: “What if I don’t settle AND the troll obtains my identity from my ISP?” We know that the IP address often leads to a rabbit hole of defenses, so where will they go next? Surely they don’t expect a defendant to personally admit to infringement — in fact, the defendant may assert his or her Fifth Amendment right not to incriminate him or herself, since there are potential criminal penalties for copyright infringement. But there are other ways to discover what’s lurking in a defendant’s closet, so to speak.

I will rule out depositions, requests for admissions, and interrogatories, since the Fifth Amendment may be asserted in most of these cases. (But note that in civil cases, there is no Constitutional prohibition on inferring a reasonable adverse inference from a party’s invocation of the privilege.  This is the subject of many a law review article, the telling of which I will mercifully spare you. See Baxter v. Palmigiano, 96 S. Ct. 1551 (1976).). The trolls will serve requests for production of documents, inspections of defendants’ computers and other digital devices, and subpoenas to produce documents and other things. It’s asking a lot from a judge to inspect all connected devices in a home after already having asked for the identities of defendants based solely upon an IP address and the name of the ISP account holder (the “subscriber”). It’s not that it’s unusual to inspect hard drives the like, but to do all this without even knowing who did it is pushing the limits of most judges willingness to exercise their sound discretion. Even if such discovery is ordered on an expedited basis, it only takes a few minutes to destroy a computer, as one alleged doe defendant reportedly said he’d do. Without inspecting the connecting devices, the troll will probably find it very difficult to prove the infringer’s identity.

This begs the question: Why do the demand letters demands thousands of dollars from  YOU (the subscriber) pay thousands of dollars for the infringement that YOU, if the troll, even with the identity of the subscriber, is still unable to determine who is responsible?

Early discovery, that is, generally, before a Rule 26(f) conference, discovery is only granted in limited circumstances. “As a general rule, the use of “John Doe” to identify a defendant is not favored. However, situations arise . . . where the identity of alleged defendants will not be known prior to the filing of a complaint. In such circumstances, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.” See Gillespie v. Civiletti, 629 F. 2d 637 (9th Circ. 1980). The truth is, judges could go either way on this.

For reasons already discussed, if you get a subpoena from your ISP, call a lawyer! (unless you don’t mind being forever attached to a copyright infringement lawsuit related to porn).

 

I Got Sued by a Copyright Troll, Part III: Beat ‘Em on the Merits

Monday, 19 December, 2011 05:23 Written by Aaron Thalwitzer 2 Comments

Let’s beat this thing senseless. The Complaint you received says that you infringed on a copyright because you downloaded it through BitTorrent. Let us assume that you did not personally download infringing material, and that if someone else did it, you honestly had no idea. Let us also assume that infringing material was downloaded using your IP address. First, consider the possibilities.

Who else had access to your IP address? Obviously, anyone who used your computer. If your WiFi network is unsecured, anyone within a certain distance from your router. Also, anyone who has stolen your IP address (I don’t condone it, but it’s easily done). Most people don’t live alone, and most people share computers, or at least leave their computer unsecured and unattended some of the time. Your roommate, husband, wife, mother, father, child, or friend could have done it, and you would might never know. If you live near other people, they could have done it too! Also, as anyone with a smartphone knows, WiFi networks pop up everywhere when you’re driving around. It could have been someone in a moving car, or someone waiting to pick someone up in the road. The point is, there are a potentially unlimited number of suspects, many of them completely unknown to you.

But the demand letter probably says it doesn’t matter if someone else did it, you’re still on the hook! Why? Because f*#k you! The trolls want your money, and that’s that. Is that true? Not really. It takes a lot more than, “it happened, you’re liable, pay up.”

Specifically, contributory infringement requires:

  1. Actual knowledge of the specific infringing activity, and
  2. Intent, and
  3. Inducing, causing, or materially contributing to the infringing conduct of another.

It probably also requires that the “system operator” actually knew that specific infringing material is available, and that the sysop could have taken measures to stop such damage, but continued to provide such access.  See MGM v. Grokster, 545 U.S. 91, 930 (2005), and Perfect 10, Inc. v. Amazon.com, 508 F. 3d 1146 (9th Circuit, 2007). Each element must be proven, or the claim fails.

The troll could also try vicarious infringement, which requires:

  1. Profit from direct infringement, and
  2. A right (and ability) to stop or limit the infringement.

Someone else downloaded porn, and you profited from it? Not likely. And who had the right or ability to stop anyone and everyone from using for WiFi? Short of unplugging the whole thing, it seems unlikely that you could stop such activity. I can’t even stop my 3 year old from using my computer. My wife? I certainly don’t have the ability, and I know I don’t have the right. It wouldn’t be a bad idea to secure your networks though, and for businesses to adopt policies forbidding such activities (though illegal activities are probably impliedly forbidden anyway).

We’re assuming that you’re basically an innocent here, but that unbeknownst to you, someone else used your IP to download some copyrighted porn. Unless you stupidly and carelessly admit knowledge of that actual downloading of material and that you did nothing to stop it, how the heck could they prove all those elements? It’s tough to imagine. That’s why prosecutors so rarely touch these cases. They’re a waste of time if the accused is willing and able to put up a strong defense. The trolls are trying to cast a wide net and snag a few unlucky souls willing to throw money at a problem. The meme, “Don’t feed the trolls” is appropriate, but I prefer to say, “Never give up, never surrender!”

Patent Attorney or Patent Agent – What is the difference?

Thursday, 15 December, 2011 07:13 Written by Scott Nyman 4 Comments

I have been asked from time to time what are the differences between a patent attorney and a patent agent. For the sake of saving me from having to the explanation in the future (and for a reason to direct people to TacticalIP.com), I believe this topic is ripe for an article!

Both patent attorneys and patent agents are required to be recognized by, and registered with, the U.S. Patent and Trademark Office to be licensed to prepare and prosecute patent applications for their clients. Prosecuting a patent is just a fancy way of describing the negotiation between the patent attorney/agent and the USPTO over the allowability of the patent application to issue as a valid U.S. patent. To be recognized by the USPTO, both patent attorneys and patent agents may possess a sufficient technical background and pass a grueling examination on the policies and procedure , which is informally known as the “Patent Bar.” Failure rates for this exam is typically around 50%, give or take depending on the period of administration. As an example, the FAILURE RATE for the October 2000 administration of the patent bar was 63%! For patent attorneys, this examination will likely be on a level of disfavor with the state bar exam he or she took to become a licensed attorney. For patent agents, this examination is a whole new animal and likely the worst exam the agent will ever take in his or her lifetime.

So, now that we know how amazingly fun the patent bar can be, why doesn’t everyone take it? Well, most people don’t qualify to even sit for the exam. In order to be eligible for enduring the six hour pain train delivered by the patent bar, you have to possess a college degree in engineering or physical science, or the equivalent of such a degree. For attorneys, this rules out over 99% of the law practicing population. I know, it’s a big shocker that not many people that end up practicing law come from math or science backgrounds. Those with an appropriate technical background usually do end up practicing patent law.

But, although both patent attorneys and patent agents have a similar process to become registered to represent inventors before the USPTO, what distinguishes one from the other? First, patent agents cannot prepare any legal documents relating to the patent application, and (hopefully) resulting patent. These legal documents typically include assignment contracts, but may also include business and corporate documents that discuss intellectual property. Also, patent attorneys can represent clients in litigation matters relating to patent infringement. By being involved in patent litigation, the patent attorney may gain a unique perspective on how a patent may interpreted by a discerning court and/or jurors. Furthermore, patent attorneys can analyze and render opinions at to whether an invention is likely infringing on a patent, whether a patent could withstand a challenge to its validity, or whether a business should proceed in manufacturing its product without fear of drawing out litigants that cry infringement.

Patent attorneys and patent agents are both extremely valuable to inventors in their respective ways. Patent agents are typically less expensive than patent attorneys, but may lack some of the perspective acquired through the practice of law. Conversely, patent attorneys may require higher fees, but may provide a larger number of services that are tailored to the client, since the attorney will have a wider understanding of the client’s business and unique needs.

There also exists a large number of differences between patent attorneys and general intellectual property attorneys, but that is a subject best reserved for another article.

 

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