Wealth of Ideas Blog

Was There Really an Uncle Ben? Or a Real Ronald McDonald?

Submitted by General Patent on Wed, 08/27/2014 - 02:50

Who knew that there really was an Aunt Jemima! Her real name was Anna Short Harrington, and she was an employee of Quaker Oats who died in 1955. And now her heirs want a piece of a fortune they believe is rightfully theirs.

D.W. Hunter, the great grandson of Harrington, filed a class action lawsuit against PepsiCo and its related subsidiaries on behalf of Harrington’s great grandchildren. The suit alleges that PepsiCo Inc., Quaker Oats, Pinnacle Foods and Hillshire Brands Co. deliberately withheld information that identified Mrs. Harrington as a former employee of Quaker Oats while they exploited her image and her recipes for over 60 years without paying a royalty to her or her family. 

Anna Short Harrington assumed the role of the breakfast matron in 1935, and “Aunt Jemima” was trademarked in 1937. Mrs. Harrington was selected for her original pancake recipe, but she was allegedly dissuaded from hiring a lawyer so she never collected royalties from the usage of her recipes.

We can only wonder how many heirs of other icons will appear? Mr. Peanut? Mr. Clean?

Manuel Noriega? You Can’t Be Serious!

Submitted by General Patent on Fri, 07/25/2014 - 03:49

What we cannot believe is that he found an attorney to represent him and file this lawsuit!

The dethroned former dictator of Panama – who is in federal lockup for drug dealing, racketeering and money laundering – is suing Activision Entertainment for the “blatant misuse, unlawful exploitation and misappropriation for economic gain” of Noriega’s image in its “Call of Duty: Black Ops II” videogame! 

Noriega – known as “pineapple face” because of his heavily pockmarked complexion – is seeking punitive damages for “lost profits.” Lost profits from what? What product is Noriega producing and selling from prison that is losing sales to a videogame? 

The answer to our first question is Thomas Girardi of Girardi & Keese of Los Angeles.

Add Rockstar to the Patent Troll Club

Submitted by General Patent on Fri, 07/25/2014 - 03:47

In a previous diatribe, we pointed out how Microsoft, by enforcing patents it purchased from Rockstar Consortium (patents it did not develop and does not practice), has become one of the patent trolls it so vigorously lambastes. But since Rockstar Consortium has now filed a patent infringement lawsuit against Google and several cellphone manufacturers, that makes Rockstar a patent troll, too!

In fact, Rockstar fits the classic definition of a patent troll. Rockstar did not develop the patented technology it is now asserting. It purchased the patents from Nortel. And Rockstar does not practice the patents it is enforcing since Rockstar produces no products or services.

Lessons from Alice in Patent-Land

Submitted by General Patent on Sun, 06/22/2014 - 19:27

Yesterday, the Supreme Court issued its decision in Alice Corporation Pty. Ltd. V. CLS Bank International et. al.. What are the takeaways of this decision?

Here, in a summary form, are five lessons we can learn from Alice:

  1. Financial methods, even if computerized, are not patentable when well-known methods are merely implemented on a generic computer.
  2. On a broader scale, abstract ideas are not patentable, even if applied using a computer.
  3. If method claims are not eligible for patent protection under §101 (patentable subject matter) of the Patent Code, recasting these claims as “system” claims by adding generic computer elements will not afford these claims patent protection.
  4. This decision does not mean that an invention based on an abstract idea, naturally occurring phenomenon, or a law of nature is always unpatentable. The Court recognized in its opinion that all inventions, on some level, are based on abstract ideas and/or laws of nature. If the inventor does not try to broadly claim such abstract ideas or naturally occurring phenomena, but merely claims their narrow application to a solution for a specific technological problem, such invention may very well be patented, provided the solution is novel and represents a technological improvement. 
  5. The patentability test has two prongs: (a) We first need to determine if the underlying invention is drawn to patent-ineligible subject matter (such as an abstract idea or naturally occurring phenomena), and (b) if so, we need to analyze a claim to see if its elements – by themselves or in combination – possess an “inventive concept” imparting to the claim patentability.

In legal profession there is an expression, “Bad cases create bad law.” There is plenty of blame to go around: Greedy corporations that tried to monopolize what belongs in the public domain; crafty patent professionals who tried to push the envelope by trying to patent unpatentable subject matter through clever claim drafting; but most of all, the Patent Office that issued scores of patents that should have never been allowed. All this created a backlash against patents. 

In its EBay decision, the Supreme Court went out of its way to say that it did not mean that individual inventors are not entitled to a permanent injunction. Notwithstanding this explicit disclaimer, this is exactly how that decision has been interpreted by the courts. Our greatest fear should be that the Alice decision will be interpreted by District Courts and by the Federal Circuit as a blanket prohibition on business method patents (particularly in view of the Concurrence Opinion filed by Justices Sotomayor, Breyer and Ginsburg). That would not be a happy ending to the story of Alice in Patent-Land.

Meet the Biggest Patent Troll of All: Microsoft

Submitted by General Patent on Wed, 06/18/2014 - 03:14

This is not the first instance of a major, high-tech corporation asserting patents for inventions it did not invent and does not practice. This is simply the most recent instance of a major, high-tech corporation asserting patents for inventions it did not invent and does not practice. 

It appears that Microsoft has been licensing a portfolio of over 300 patents to several Android device manufacturers. This was revealed when the Chinese Ministry of Commerce published a list of Microsoft patents that includes 73 standard-essential patents plus another 127 patents that Microsoft claims are used by Android devices.

Did Microsoft invent this technology? Nope. Microsoft purchased these patents from the Rockstar Consortium. Did Rockstar invent this technology? Nope. Rockstar purchased the patents from now-defunct Nortel. 

Does Microsoft or Rockstar practice these patents? Nope. Does Microsoft assert these patents against Android device manufacturers? Yep. So how much money are we really talking about? Over $1 billion a year! Microsoft is not just another Patent Troll. Microsoft is the biggest, meanest, baddest Patent Troll in the forest!

And get this: Barnes & Noble – a victim of Patent Troll Microsoft – has retaliated by asking the U.S. Justice Department for an anti-trust investigation into attempts by Microsoft to “kill off” devices from smaller Android players by charging exorbitant licensing fees and filing lawsuits against them.

Tesla Tosses its Patents: Do­-Good or Do­-Well Strategy?

Submitted by General Patent on Mon, 06/16/2014 - 14:34

If you want to join the Open Source movement, hop aboard an electric car for a ride. Or so says Tesla. Yesterday they opened their patents to all. Their press release begins with a dramatic statement, “Yesterday, there was a wall of Tesla patents in the lobby of our Palo Alto headquarters. That is no longer the case. They have been removed, in the spirit of the open source movement.”

Don’t be misled by this publicity stunt – behind it is a well thought­out business decision. There are two ways to increase your revenue: (1) fight for a larger slice of the pie; (2) increase the size of the pie. In the telecom world, everybody (at least in the industrial countries) already has a phone. It’s hard toincrease the size of the pie, so everybody is vying for a larger market share. That’s where patents become handy. Hence, the chart of patent infringement lawsuits involving smart phone makers looks like a spaghetti plate – everyone suing everyone else. After all, patent is little more than a right to sue.

In the world of electric cars, which represent less than two per cent of automobile market, the competition comes not from other electric car makers, but from cars that run on gasoline. Fighting for a larger market share makes little sense, particularly for Tesla, the undisputed market leader. Electric cars face a classic chicken­or­egg conundrum. Consumers don’t rush to buy electric cars because there are not enough charging stations. And businesses do not rush to invest in building charging stations until there are enough cars to use them. The solution: Never mind your slice; increase the size of the pie. Patents don’t help to do that. They serve as entry barriers. Hence, the logical solution is to open the patents to competition.

Many technology companies know that to promote a standard, it is often necessary to open patents to competition. Opening their patents and promoting the industry standard based on their technology, Tesla is establishing itself as the industry leader. This is not do­good strategy; this is do­well strategy.

So Elon Musk made a smart move... But why all this patent bashing? Nobody ever said that accumulating patents was the right strategy for everyone! We often advise our clients that manufacturing processes, for example, are better protected by trade secrets than by patents. Sometimes they are appropriate, other times less so. That is why intellectual property strategy must always be considered in the context of the strategic goals of the enterprise. If you decide to supercharge your IP strategy, Tesla patents will not stand on your way.

What Would Atticus Do?

Submitted by General Patent on Thu, 05/22/2014 - 22:59

Last year, Harper Lee, author of “To Kill a Mockingbird,” filed a trademark infringement lawsuit against the Monroe County Heritage Museum in Monroeville, Alabama. The suit claimed unauthorized use of Lee’s name on souvenirs sold by the museum. 

In February of this year, Lee’s attorneys informed the court that a settlement had been reached. Lee’s attorneys re-contacted the court last week to announce that a settlement had not, in fact, been reached, and requested that the lawsuit be re-instated. 

“To Kill a Mockingbird” is Lee’s sole published work, and royalties from the book and subsequent film are her primary source of income. The novel tells the story of small-town lawyer Atticus Finch (portrayed in the film by Gregory Peck), his two children, and the struggle against racial prejudice in the segregated South. The museum is located in the courthouse depicted in the movie. It is widely believed that the lead character in the story, Atticus Finch’s daughter, Scout, is based on Harper Lee as a child. 

We know Atticus Finch was a criminal trial attorney. But did he try civil cases? And would is there sufficient injustice for him to represent Scout in her claim against the museum?

Wearable Computing Must Be the Next Big Thing!

Submitted by General Patent on Thu, 05/22/2014 - 22:55

Microsoft recently paid between $150 and $200 million (based on different press reports) to acquire the Osterhout Design Group. The purpose for the acquisition was Osterhout’s treasure trove of “wearable computer” patents. 

Despite initial reports that Microsoft was acquiring “hundreds of patents,” it turned out that Microsoft is actually acquiring just five issued patents and 76 patent applications. Let’s say half of the apps make it through prosecution and become issued patents. That still about 40 patents for $150 million plus.

Microsoft is banking a lot of dough on this technology! We are reminded of the advice that Deep Throat gave to Woodward and Bernstein: “Follow the money.”

Timing is Everything

Submitted by General Patent on Thu, 04/17/2014 - 22:53

As the litigation drags on between Apple and Samsung and each side accuses the other of various acts of infringement, every once in a while an interesting bit of information comes to light. This month, Apple explained that it is entitled to $2.2 billion in damages because of...timing.

According to Apple, Samsung infringed five Apple patents, using crucial technology in over 37 million Samsung smartphones and tablets sold between August 2011 and the end of 2013. Samsung used certain elements borrowed from the iPhone to make its own devices easier to use, claims Apple attorney Christopher Vellturo, who says that the infringement came at a time that the smartphone market was "in a profound state of change and growth because so many people [were]...buying phones."

And now that the majority of consumers own smartphones, that dramatic growth has slowed - and Apple lost some opportunities to win customers. Apple contends that Samsung's ability to offer a less expensive, larger smartphone - allegedly built with the infringed Apple technologies - are enough of a reason to ask for $2.2 billion in damages.

“That had a dramatic effect on Apple, and the compensation is therefore substantial,” says Vellturo.

Samsung disagrees with Apple's exorbitant damages claim, and says that Apple owes it $7 million based on the infringement of two Samsung software patents.

And now that Apple's lawyers have revealed that Samsung saw the death of Apple CEO and icon Steve Jobs as "our best opportunity to attack iPhone," the litigation between Apple and Samsung is about to get even uglier (if that's possible). What's more, the leaked emails show that Samsung was not opposed to asking for help from Google, the provider of Android.

The Apple and Samsung melodrama doesn't seem to be going away anytime soon, but at least it has begun providing a bit more intrigue.

Beastie Boys Prevail in Copyright Dispute with GoldieBlox

Submitted by General Patent on Wed, 03/19/2014 - 20:17

Remember the toymakers who used a Beastie Boys song without permission and then filed suit against the band when they were asked to stop using the song? (see "GoldieBlox and the Three Beasties").

GoldieBlox had argued that their usage of the Beastie Boys' song "Girls" was fair use because it was a "parody" - actually, that they intended it to transform the song into "a powerful anthem for girls" (with an accompanying video that, conveniently, features little girls playing with GoldieBlox products).

The two surviving Beasties argued that the song wasn't a parody, it was clearly an advertisement, and that their late member Adam Yauch had specified in his will that the band's songs not be used for advertising purposes.

In December, the GoldieBlox folks removed the song from their viral video, admitted they were "huge fans" of the Beastie Boys, and agreed to stop the lawsuit "as long as this means we will no longer be under threat from your legal team."

Now that lawsuit has been settled, and we can all speculate on whether the GoldieBlox gals really made an honest mistake in thinking their use of "Girls" was fair use, or whether it was a brilliant legal gamble that garnered them a whole lot more attention than they were likely to get otherwise - and right in the middle of the holiday shopping season to boot!

A spokesperson for GoldieBlox told Rolling Stone that the lawsuit settlement "includes (a) the issuance of an apology by GoldieBlox, which will be posted on GoldieBlox's website, and (b) a payment by GoldieBlox, based on a percentage of its revenues, to one or more charities selected by Beastie Boys that support science, technology, engineering and mathematics education for girls." Well played, Beasties.

Stay tuned, though, because there may be other lawsuits in GoldieBlox's future: The Beastie Boys' countersuit, which they filed in December, pointed out that they weren't the only ones whose music got the alleged "fair use" treatment. GoldieBlox also used music by Queen, Daft Punk, Avicii, Slam, k.flay, Trevor Guthrie and others to sell their toys. It seems that copyright infringement is the company's most successful publicity strategy.