June 30, 2008 by thomason.

The protection of visual and artistic works is the stock and trade of the Register of Copyrights. These works do not have to aesthically pleasing or critically acclaimed, only original. The 10th Circuit’s recent decision in Meshwerks, Inc. v. Toyota has kept me perplexed through the weekend. In the end, the panel relies on caselaw about whether photos embody copyrightable originality, to decide that 3D digital models of a car body are not copyrightable, but are simply such perfect copies as to lack minimal originality. Trying to extend that logic seems to lead to a rule that superrealistic depicitions lack originality, but that imperfect representations have earmarks of originality that make those copyrightable.

The ruling is grounded on the premise that a photo includes the elements of shot “angle, lighting, shadow, reflection, and background,” which differs from photo to photo. A perfect 3D model created from actual measurements of an object has “stripped away all lighting, angle, perspective, and ‘other ingredients’ associated with an original expression.” That suggests that added content makes a work more copyrightable, but that does not actually answer the question of whether a “stripped away” image, or some other minimalist work, embodies originality or not.

Meshwerks was hired to create (?) wire model 3D drawings of the Totoya body, in digital form, for advertising use. The wire frame depictions can be manipulated, shadowed, colored, etc., and then inserted into ads, which offers a more flexible than a photoshoot, but yields comparable quality images. Using sensing devices moving all over the exterior of the car, a digital image was developed in 3D using modeling software. The finished image appears as a series of wires or frames forming the shape of the car body. Again, with a keystroke, the exterior color and other features can be added, which converts the wire frame image into a picture of the car. That simplicity combined with perfection was enough for the 10th Circuit to deem the 3D images as unoriginal, and uncopyrightable as visual works. The suit was driven by the fact that the images had been licensed for a single ad campaign, but those later were used again, and were given to a competing company to use for similar projects.

There are several threads running off this decision, both in copyright law and perceptions about originality. The case holds that the images are not copyrightable, but presumably, those had been registered as visual works. An alternative might have been to copyright the set of instructions that drove a PC to the result of generating those specific 3D images. The Copyright Office might have accepted the code as a copyrightable “set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result,” i.e., desired 3D images. On the aesthetic issues, consider this. The visual works of Frederic Remington or Norman Rockwell are loved because they so closely capture our view of ‘the original’ subject of the works. It is not that such depictions of a cowboy or a horse, or of events typical of Americana, are original or never before seen; it is just the opposite, that it, they are so exact in matching what we see with what we’ve seen that we view these artists’ works as unique, exact and truthful to perceived reality. If one were to pose live models in exactly the same way as seen in a Remington painting, then would a photo or drawing of that have enough ‘minimal originality’ to be copyrightable, or would it be so similar as to lack originality?

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June 25, 2008 by thomason.

In a non-precedential show of its power, the CAFC reversed de novo in another case involving a JMOL motion reviewed under Ninth Circuit law. In today’s ruling in Heuft v. IDC, the panel finds a prosecution disclaimer in a parent patent, applies that to claims later issued from a divisional, then rules in toto on infringement, even the 112P6 issue that was not in the record. What need is there for district courts?

Maybe its just happenstance that the Heuft decision follows reversals of JMOL rulings by the CAFC applying the Pavao v. Pagay (9th Cir.) precedent. Prior reversals include the CAFC decisions in CollegeNet, Wechsler and Callicrate (the castration tools case). What none of these rulings illuminate is what cases will be decided, fully and finally, on appeal, and what cases the CAFC will decide in part with other issues remanded for further consideration. When the record is complete, and a correct claims interpretation made in the district court or CAFC, then the case should be decided in toto. That’s perhaps why the leading case on this point is captioned SeaChange. In Heuft, the lower court trial never considered 112P6 equivalents, but the CAFC went the extra kilometer, and ruled that the accused apparatus never could be “structurally equivalent” to the claims as construed (that is, as narrowed on appeal by prosecution disclaimer of the parent claims).

Guess that the function, way, result inquiries were unworthy of further consideration. Finding prosection disclaimer, then extending it to related patents, deciding issues not presented to the jury, and reversing on the law and facts in a patent case by applying a regional circuit case that affirmed a JMOL ruling in a civil rights case, alogether strikes this observer as strongarming results.

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June 13, 2008 by thomason.

There’s a lot to think about on a Friday - do I have charcoal, will it rain, how come I’m still working on Monday’s work, what the numbers on my paycheck mean - oh, and that it is the 13th.  For all those lucky birds who were born on Friday the 13th, what can you tell us about how that rolls you along the tao of life.

This 13 thing infects decisive aspects of CAFC rulings.  Probably one of the more empiric IP blawgers could insert a chart here that statisticizes how many district court rulings are affirmed because of the intervention of a #13 circumstance.  Consider:

A CAFC panel, or at least two of them, troubled over the statute of limitations issues because it had been “thirteen years after the first patent was issued” when “Schlumberger reportedly represented …that Schlumberger owns the Barstow inventions.” DDB Technologies, L.L.C. v. MLB Advanced Media, L.P., (Fed. Cir. Feb.13, 2008).

Patent geeks find no reason to doubt that “the Lemelson patents occupied the “top thirteen positions” for the longest prosecutions from 1914 to 2001.” Symbol Techs., Inc. v. Lemelson Med., Educ. & Research Found., 422 F.3d 1378 (Fed. Cir. 2005).

Almost for certain it was not a random decision that the U.S. government “began requiring [V-chip] functionality in television sets thirteen inches or larger.” Sony Electronics, Inc. v. Guardian Media Technologies, Ltd., 497 F.3d 1271 (Fed. Cir. 2007).

It too was notable that the CAFC, in sanctioning a troll-to-be, seized upon that infringement complaint in Eon-Net LP v. Flagstar Bancorp, (Fed. Cir. Sept. 27, 2007) being “virtually identical” to thirteen other complaints “filed against parties with greatly disparate business operations.”

It is no wonder that a “thirteen-day jury trial” was needed to navigate around the alleged infringement of a claim construed to encompass “an array of microphones” arrayed around your skullcase. Medtronic Navigation, Inc. v. BrainLAB Medizinische Computersysteme GmbH, (Fed. Cir. February 7, 2007).

Certainly, one of refined taste for the bubbly {me} has no need for “applying the thirteen factors set forth in In re E.I. DuPont DeNemours & Co., 476 F.2d 1357, 1361 (C.C.P.A. 1973), without deference” to negate a likelihood of confusion between a flute of Veuve Clicquot, the finest champagne of all, and some kid-sip marked Veuve Royale sparkling wine. Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369 (Fed. Cir. 2005).

Some think these cases were decided on CAFC precedent, but there too is the deci-trio cum detritus theory of random order selection - chart please.  If your CAFC case gets a docket number that includes the #13, then wonder, ‘is it a sign?’

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June 4, 2008 by thomason.

June is off with a CAFC case in which the same counsel that prosecuted the patent argued for a non-literal interpretation of the issued claims.  If the client thinks that the patent you prosecuted will protect against infringement, then when you are asked ‘does it cover this,’ you may wonder how Markman would interpret the saying, ‘in a pickle.’  In Helmsderfer v. Bobrick Washroom, the fascinating market for baby-changing stations is at issue, and specifically, the embodiments of anti-vandalism stations.  That’s those things on the wall in airport restrooms where you set your laptop case while you’re downloading.

The patentee, through counsel, had claimed that an element was “partially hidden from view.”  Apparently, the accused element was totally hidden, but the patentee, through counsel, argued that to be hidden totally is also to be hidden partially.  That’d be completely partially - you know, like totally, dude.

You may’ve read many cases on claim differentiation, but this one is not the usual independent/dependent application of the doctrine.  Here, the patentee in other, non-litigated claims used the modifiers, “at least” and “generally.”  So, the CAFC applied differentiation to conclude that if you meant that the element was ‘at least partially’ hidden, then you would have so claimed it - you did not, and it will not be interpreted as if done. 

When the CAFC invoked claim differentiation to interpret claimed terms based on terms in other, non-litigated claims, the patentee in a move reminicent of Spy v. Spy, rejoined that the CAFC’s resulting interpretion was contrary to its oft-stated proscription against interpretations that end up not covering the preferred embodiment.  So, in a further Spy v. Spy manuver, the CAFC retreated within an appellate wall that kept it from determining whether any other, non-litigated claims might cover the preferred embodiment.  That closed the circle, which started with the CAFC looking at the other, non-litigated claims when applying claim differentiation, then refusing (like Lot’s Wife) to look there again.  Ah, to have the unfettered whim of de novo review - it’s so liberating and it makes everything come out the way you wish it to.

The point of this, and a recent post, is that you can convince your client that the patent he obtained from your prosecution will provide all the needed protection, but you may be unable to convince a court of that point.

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