Wealth of Ideas Blog

Another Unintended Consequence of the America Invents Act

This past December, the feature article in our e-newsletter, Wealth of Ideas, detailed several ways that the America Invents Act has basically backfired on the American patent system. (See "America Invents Act Turns Out to Be a Law of Unintended Consequences".)

Sure, the AIA has given big business a significant gift in the form of the change to a first-to-file patent system. And yes, the anti-joinder provision has led to a sharp surge in patent lawsuit filings because patent owners are no longer allowed to sue multiple infringers at once. (That was supposed to scare "patent trolls" away from the court system, but seems to have only created more lawsuits.)

A Trademark Lawsuit that Could Drive You to Drink

Most of us who survived college with our dignity intact are pretty content to put it behind us. But if you're not already happy to have joined the ranks of the grown-ups, this story of an alcohol-fueled trademark dispute might do the trick:

"Power hour" is a drinking game in which participants take a swig of beer every minute for an hour. Apparently the game is so popular that it inspired a singer-songwriter named Ali Spagnola to record "The Power Hour Album," which contains songs that we assume encourage the chug-a-luggery of cheap beer.

Unfortunately for Spagnola, someone else had trademarked "Power Hour" first - and sent her a cease-and-desist letter (but only after trying to make money off her DVDs).

Patent Lawsuits Double in Eastern District of Texas in 2012

Well, at least business is booming somewhere: The plaintiff-friendly federal courts in the Eastern District of Texas saw a dramatic jump in the number of patent lawsuits filed, from 607 in 2011 to 1,263 in 2012 - a 108 percent increase in just a year.

The doubling of patent cases in that district is a direct result of a provision in the America Invents Act (AIA), which prohibits patent owners from suing several defendants at once for separate acts of infringement. The AIA's supporters had hoped that the high cost of suing infringers separately would deter patent trolls, otherwise known as "patent owners who don't manufacture products based on their patented invention but peskily insist on enforcing their patent rights nonetheless."

Freedom of (Trademarking) Religion

An artist in Holland just found out that he can't trademark the name of Allah.

Artist Teun Castelein filed an application with the Benelux Office for Intellectual Property (BOIP), which is headquartered in The Hague, to register "Allah" as a black-on-white typograhic logo. But shortly thereafter he learned that his request was rejected - despite the fact that he claims "Jesus" and "God" have been accepted as registered trademarks by the BOIP. And in India, a lawsuit arose a few years ago when two companies produced dairy products under brand names that both included the word "Krishna."

But back to our frustrated artist:

The (Fluctuating) Cost of Free Music

Over three years ago, we first told the story of Jammie Thomas-Rasset, who was found guilty of copyright infringement over 24 songs she had downloaded and shared via the Kazaa file-sharing service.

Initially hit with a $222,000 judgment for damages, Thomas appealed and was hit with a $1,920,000 judgment in her second trial. She appealed again, and the damages amount was reduced (but not by much) to $1.5 million. The $1.5 million verdict was then slashed to $54,000, which is much better but still pretty overwhelming for Thomas, a Native American and mother of four who works as a "natural resources coordinator" for a band of Ojibwe Indians.

Patent Lawsuits Over Funny Shoes, Volume 2

What is it with kooky shoes and lawsuits? Last June, we reported on a lawsuit between Gucci and Guess over some overpriced bowling shoes. Now we are pleased to inform you that Vibram and Fila have settled their litigation over "barefoot shoes" - AKA those funky neoprene and mesh shoes with the individual toe casings. They're kind of like those silly toe socks you got as holiday gifts back in the 1970s from your Aunt Mabel.

The difference is that while striped toe socks are now considered cool (by some) in a "retro ironic" kind of way, Vibram's FiveFinger shoes and Fila's Skele-Toes shoes are touted as the next best thing to being barefoot, which enthusiasts of barefoot running (or barefoot living in general) claim has health benefits for the foot muscles, knees, legs and back.

Cisco Tries New Approach to Patent Lawsuits Filed by NPEs

Over a year ago, we reported on the patent lawsuits brought by Innovatio IP Ventures LLC against a host of companies that offer free WiFi to their customers. The defendants in that litigation include over 220 individual hotels in Illinois. Interestingly, however, Innovatio didn't file lawsuits against Motorola Solutions and Cisco Systems - the companies that manufacture the WiFi equipment used in the alleged infringement.

Don't Quote Me on That

We're all for copyright owners' rights, but this one might be stretching a bit: The owners of the copyrights to the late William Faulkner's literary works sued Sony Pictures Classics and a group of movie exhibitors because of two sentences uttered by actor Owen Wilson in Woody Allen's 2011 movie Midnight in Paris.

Faulkner Literary Rights LLC filed the suit in a U.S. District Court in Mississippi, claiming that Sony and the other defendants didn't request permission to use the quote.

Here's what Wilson's character said: "The past is not dead! Actually, it's not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party."

And here's the quote, from a passage in Faulkner’s Requiem for a Nun: “The past is never dead. It’s not even past.”

A Bit of (Inaccurate, but) Welcome IP Humor

Sometimes it's nice to take a break from writing about the more serious side of intellectual property - the litigation, the legislation, the precedent-setting cases - and just reflect on how absolutely crazy it looks to people who don't work with patents, trademarks and copyrights.

So when Cracked posted "5 Everyday Things You Won't Believe Are Copyrighted," we found it so amusing that we forgave the fact that not one of their five examples is a copyright. That's right: the five examples are actually three trademarks and two patents.

A Cheesesteak Maker's Beef Against the Trademark Office

Sometimes a business owner (or his attorney) has to get creative to show why he deserves to be awarded a certain trademark. In this case, the owner of Campo's Deli in Philadelphia needs to show why the mark it uses for its signature sandwich - "Philadelphia's Cheesesteak" - is different from some very similar existing marks: Philadelphia's Cheesesteak Co., Philadelphia Cheesesteak Co., and The Original Philadelphia Cheesesteak Co. The plaintiff argues that their mark refers to a particular sandwich and not the company itself (as do the other marks). The owners of Campo's Deli need the mark because they have plans to start a franchise.