It is a well known axiom of U.S. intellectual property law that there is no protection afforded to mere ideas. In order to employ the force and power of our legal system to enforce your intellectual property rights, you must have something more concrete than an idea. In patent law, for example, you must have reduced your invention to practice (although constructive reduction to practice can be used to satisfy the requirement). In trademark law, you must have actually used your mark in association with goods or services. In the realm of copyrights, an author must fix her expression in a tangible form before the government will recognize any exclusive rights.
The bottom line is that you can’t sue anyone for “stealing your idea” or “taking that movie plot you thought of.” This concept is hard for some to grasp, and every so often, a big player in the IP world may take advantage of this common misunderstanding. While perusing sites that sell graphic tees (one of my favorite forms of communication – e.g., here, here, or here), I came across an example of this that I think is worth sharing.
It seems that Ian Bogost, a video game professional, associate professor, blogger, and amateur t-shirt designer, decided that it would be clever to put a Spanish phrase, “Por favor manténgase alejado de las puertas,” on a t-shirt, adjacent to various theme park graphics. If you’ve spent any time in a Disney theme park, you may recognize the foreign equivalent for “Please stand clear of doors,” which can be heard over and over on the monorail, as the automated recording paternally berates passengers.
“Awe! Come ON! I made a movie about it. That proves it’s true.”
Director Kappos, of the United States Patent & Trademark Office (USPTO), writes on his blog this week about how the Office intends to fast-track the examination of patent applications that deal with so-called “green” technologies. Great headline for a month ago, when the popularized position was that anthropogenic climate change (formerly known as “global warming”) was a *proven* phenomenon. However, recent developments have put those findings in serious doubt.
In case you haven’t been keeping up, as Director Kappos clearly hasn’t, emails were leaked last month from the University of East Anglia’s Climatic Research Unit – a world-renowned climate change research center – which reveal a “trick” being employed by researchers to massage temperature statistics (source). Seems that a decline in temperature didn’t fit into the doomsday scenario that’s being thrown about to justify new grant money, new cap-and-trade legislation, and new taxes. The emails openly discuss the deletion of historic source data and ways to discredit scientific journals that have published skeptic papers, as a couple of examples (source).
Moving back to the IP tie-in, the USPTO is continuing to drink the climate change kool aid by proposing that so-called “green” patent applications should be given priority treatment in examination. Kappos’s announcement of the policy was timed to coincide with the start of the United Nations Climate Change Conference in Copenhagen, Denmark. In that announcement, the Director explains the impetus for such an initiative:
As I have often said, the USPTO is committed to dramatically reducing the backlog and average patent pendency time across the board. As we work toward this goal, we are going to pilot a program that will give priority to applications that combat climate change and foster job creation in the green tech sector. The Green Tech patent pilot program will decrease the time it takes to obtain patent protection for green tech innovations by an average of 12 months. (source)
One has to wonder what other types of applications will be “de-prioritized,” in order to let climate-change-fighting inventors skip the line. It seems clear that this initiative would do absolutely nothing to improve the average pendency time across all patent applications. It is truly odd that, at the Patent Office, where a science degree is required to prosecute or examine applications, they’re not letting a silly thing like the absence of a scientific foundation stop them from disparaging the majority of the inventing community. It certainly isn’t stopping the charlatan proponents of climate change theory from generating a city-sized carbon belch to gather and talk about how to reduce carbon emissions.
Once again, the Director concludes his blog post, claiming that he welcomes comments and feedback, but somehow my comments thereto on this subject failed to clear moderation.
File under “can they do that?” Facebook notified me of a class settlement agreement, by sending me an in-network message:
click to enlarge
Facebook is sending you this notice of a proposed class action settlement that may affect your legal rights as a Facebook member who may have used the Beacon program. This summary notice is being sent to you by Court Order so that you may understand your rights and remedies before the Court considers final approval of the proposed settlement on February 26, 2010.
This is not an advertisement or attorney solicitation.
This is not a settlement in which class members file claims to receive compensation. Under the proposed settlement, Facebook will terminate the Beacon program. In addition, Facebook will provide $9.5 million to establish an independent non-profit foundation that will identify and fund projects and initiatives that promote the cause of online privacy, safety, and security.
For full details on the settlement and further instructions on what to do to opt out of, object to, or otherwise comment upon the proposed settlement, please go to http://www.BeaconClassSettlement.com.
An email is also being sent to the address associated with your Facebook account.
Thanks to the socialist wing of our highest court, the language of the Fifth Amendment has been perverted to include economic development as a justifiable reason for disregarding private property rights. In the latest episode of “how can the government make sex to me, without even buying me a drink first,” a developer in New York has convinced that state’s highest court that the New Jersey Nets need a new arena more than 146 people need to keep their homes (source).
In case you’re not familiar with United States property law, I’ll give a quick primer. Owning “real property,” here in the U.S., essentially amounts to having the privilege of using U.S. laws and U.S. courts to enforce your rights against others. If you don’t want your neighbor to build that fence 3 feet into your back yard, you can file a law suit and prevent him from doing that. Since property rights come from the government, the government can potentially refuse to recognize your rights. The Bill of Rights to our Constitution, recognizing this, includes a limitation on our government’s ability to just up and decide to turn you out of your house. The Fifth Amendment states, among other things, that “private property [shall not] be taken for public use, without just compensation.”
If you spend any time reading patent applications, two things will probably become apparent to you: 1) you probably need to find a hobby or five to take up more of your time; and 2) sometimes it may seem like patent applications are written in some kind of strange, overly complicated, almost alien language. Usually, there’s a perfectly good explanation for why one would use a more complicated phrase, in a patent application, to say what could be said in a word or two anywhere else. It generally has something to do with legal precedent that would impact the protection granted by the patent. In our first of what will be another series of subject-specific posts about why we use the words we use in drafting a patent application, Tactical IP takes a look at one of the oft-inserted patent language twists – “an embodiment of the present invention,” used in place of “the present invention.”
When writing a patent application, there is a delicate balance that must be maintained, between describing an invention well enough to meet the statutory requirements and keeping your language general enough that the inventor’s competition can’t make a quick, easy design-around implementation that doesn’t infringe the patent. Patent protection is only worth as much as what you can prevent others from doing without paying you licensing fees or a royalty.
Luckily (or unluckily, depending on which way you look at it) decades of infringement litigation and appeals of patent office decisions give a roadmap for patent practitioners to follow when drafting a patent application. Unfortunately, the roadmap changes so often that the language you’re using today to draft a patent application may be no good by the time that application is used as the basis for an infringement suit – or even by the time it’s being examined by the PTO.
One patent drafting faux pas, which has developed in the last eight years or so, is stating that something is “the invention,” or stating that “the invention” includes something else. As the Court of Appeals for the Federal Circuit has demonstrated, such language can be used to narrow the protection that your patent would otherwise provide.
A federal lawsuit was filed this week in the Southern District of Florida, alleging violation of the Trademark Protection Act (source). I would just like to refer the filing attorney, Juan Abogado, to Federal Rule of Civil Procedure 11.
Happy Friday, IP enthusiasts! I thought it might be interesting to celebrate the end of this hard-fought work week with a movie recommendation. So stop by your local movie rental establishment, or add this one to the top of your Netflix queue, nuke a bowl of popcorn, sit back, relax, and enjoy this flick.
Primer (2004) is a rough cut little gem that is still quite pretty, maybe because of its faults. It follows the cautionary tale of a couple of engineers who spend their off-work hours tinkering in a garage, looking for that next great technology. When they stumble across an invention that they don’t fully understand, the drama and suspense begin to heat up. As they come to realize the magnitude of what they’ve discovered, things boil over with tragic consequences.
Writer/director/producer/editor/star Shane Carruth was literally a one-man show in making this film. He even composed, recorded, and synchronized the soundtrack. Being his first effort at film making, one can’t help but be impressed. It really is no surprise that he took home the Grand Jury Prize at Sundance.
If you’re a fan of Showtime‘s adult series “Secret Diary of a Call Girl” (or even if you aren’t), you may be interested to know that the real-life anonymous author of the blog and book that inspired the series went public earlier this week. (Source)
Dr. Brooke Magnanti, Ph.D. in informatics, epidemiology and forensic science, in an interview with The Times, talks candidly about how she got into the biz of having sex for money.
Dr. Brooke Magnanti (a.k.a. Belle du Jour)
I was finishing my writing — I was getting ready to submit my thesis. I saved up a bit of money. I thought, I’ll just move to London, because that’s where the jobs are, and I’ll see what happens. So I did. I submitted the thesis but I was still preparing for the viva — there was quite a lot of writing and studying still to do.
I couldn’t find a professional job in my chosen field because I didn’t have my PhD yet. I didn’t have a lot of spare time on my hands because I was still making corrections and preparing for the viva; and I got through my savings a lot faster than I thought I would. The difference between living in the Highlands and living in London is massive. I hadn’t really thought that one through.
I have a pathological aversion to being in debt. My mother’s family are Jewish; there’s this hoarding thing, saving, being prepared — if you’re in debt somebody could come and knock at your door and take it all away tomorrow. It got to the point where I didn’t have quite enough money for my rent. I asked my best friend if I could borrow some money and he posted me a cheque.
I was looking at this cheque. It wasn’t even the total of my rent; it was a quarter of it or something, some stupidly low amount like £120. I thought, ‘But once I deposit this cheque, I’ll still need money for next month.’ And I couldn’t do it. I couldn’t borrow this money knowing that I couldn’t pay it back and that I’d need more pretty much straightaway. And that was when I started to think: what can I do that I can start doing straightaway, that doesn’t require a great deal of training or investment to get started, that’s cash in hand and that leaves me spare time to do my work in? (Source)
As I have often said, the USPTO is committed to dramatically reducing the backlog and average patent pendency time across the board. As we work toward this goal, we are going to pilot a program that will give priority to applications that combat climate change and foster job creation in the green tech sector. The Green Tech patent pilot program will decrease the time it takes to obtain patent protection for green tech innovations by an average of 12 months. (
Happy Friday, IP enthusiasts! I thought it might be interesting to celebrate the end of this hard-fought work week with a movie recommendation. So stop by your local movie rental establishment, or 
