You are currently browsing the ISinIP weblog archives for February, 2010.
February 17, 2010 by thomason.
In a NFP order, the CAFC affirmed trial court rulings of not invalid and enforceable, in a suit about patents for those clunky tag devices and sensors used to deter shoplifters. Defendants appeared for trial in 2008 and stipulated to infringement, choosing to defend on invalidity and unenforceability grounds. Earlier, the defendants filed for re-exam, and with one possibly important exception, the claims survived.
The trial presentation on invalidity apparently relied on references submitted in the re-exams, and in consonant fashion, the court upheld the patents as valid.
The inequitable conduct ruling, and the remarks in the CAFC order, are curious or provoke this curiosity. In the re-exam, a claim was rejected based on the `033 patent, which defendants contended was withheld during prosecution. Quare: would not rejection based on that reference be prima facie proof that it was “material to patentability.” Even if that `033 reference was not enough to reject the claim, it at least would seem to be “material” prior art.
At trial, one of the inventors explained why he felt the `033 disclosed less than the examiner had said in the re-exam. On that basis, the trial Judge ruled that “the `033 patent was not material.” Per curiam, the CAFC affirmed, but stated “we do not address the question whether the information that was not disclosed was material.” It affirms based on the finding that the inventors “did not act with intent to deceive.” That’s a bit oblique to the district court’s specific findings that the non-disclosed art was cumulative and/or non-material, which was disconnected from the conclusory ruling that defendant “have not shown” the references were “intentionally withheld ..with an intent to deceive.”
Perhaps, here’s the difference between for-publication and NFP rulings by the CAFC: publication is needed to articulate how to reach the result on appeal; a ruling NFP comes to the right result, so there no need to say more about it. Sensormatic v. Von Kahle, (CAFC 2009-1193,
Posted in Patents - Federal Circuit | Comments Off
February 12, 2010 by thomason.
An argument lost, an opportunity renewed. Way back, before online multiplayer games were so viral, copyright interests made comments against passage of the DMCA. Particularly questioned were prohibitions on DRM circumvention measures, but the DMCA, with those prohibitions, was enacted by Congress.
Just filed is a case making a most interesting accusation under the DMCA. Owners of the online game RuneScape® sued claiming damages from ‘bots’ and ‘scripts’ that allegedly “circumvent security measures” that the owners intended to “protect its copyrighted works.” The suit is Jagex v. Impulse Software filed in federal court in Boston. http://bit.ly/8Y4a4a
Never played this game, so only the complaint and the news guide my thoughts. One concern with adding a prohibition against any “technological measure that effectively controls access to a work protected” by copyright, was it might be extended to protect what is not protected by copyright.
A fair difference can be seen between hacking in to use copyrighted, password-protected software [being bad], and modifying uncopyrighted software, which comes in a box with a copyrighted picture on it.
In this new suit, there is no claim that the game software is copyrighted – rather, there are visual elements that are copyrighted – a “fish icon,” a “pickaxe icon,” etc. That provoked the question whether the ‘bots’ let you access these icons, when the real gripe is access to uncopyrighted game routines. A story in a London newspaper said one wondrous aspect of the game was that no special software was needed – it works within any browser. Also, the complaint says that the software is “accessed using a web browser to interact with servers in” the UK. That suggests that users “interact” with software resident on servers outside the territory of U.S. copyright, and so, unlike a player in the U.S. licensing downloaded game software to use.
One further observation is that the complaint enters that realm of infringement by contract - that any departure from ‘terms & conditions’ agreed to by users becomes transformed into an infringement of copyright. A gameplayer agrees not to use bots or scripts to “gain an unfair advantage,” but the suit is not pleaded against the mighty horde of game players. If a player cheats, the RuneScape masters remedy should be banishment from the realm.
The DMCA’s anti-circumvention prohibitions have gained strength in the few cases that have considered various “technological” measures to control “access” to copyrighted work. We will have to think that this case will write a further chapter in the DRM gamebook.
Posted in Copyright | Comments Off
February 11, 2010 by thomason.
A newly-filed suit in Michigan, accusing Comcast of tying premium cable TV with the rental of a set-top box, presumably will add to the cases before the Multidistrict Judicial Panel, 626 F.Supp.2d 1353 (MDL 2009). In Rogers v. Comcast, 2:10-CV-10547 (E.D. Mich.), the class pleads a Sherman §1 claim along with Michigan Consumer Protection Act claim.
The class alleges upon “information and belief, the set-top box is required for the class to view the premium and/or digital channels” provided by Comcast. ¶23. It alleges that the “market for cable boxes ..is separate and apart from the market for …cable [TV] services.” ¶52. Although set-top boxes can be bought elsewhere, class members allegedly are “forced to rent a set-top box from” Comcast to “fully view” premium content from the cable TV provider. Early on, Comcast is accused of conspiring with “its officers and owners …to violate the Sherman Anti-Trust Act …by purposefully creating an unlawful tying arrangement” between premium cable and set-top boxes.
The Rogers complaint tracks what is alleged in the cases collected under the MDL order. Still, one wonders (what is latin for ‘I wonder, ergo I blawg’).
Pleading a Sherman Act tying claim leads to a rule of reason analysis. That pretty much opens the season for hunting down every economic species known to experts in the field. There too are limits in the law on whether tied items are separate or integral, e.g., Virtual Maint., 11 F.3d 660 (6th Cir. 1993), and whether cable TV is a good or a service, Morrison v. Viacom, Inc., 66 Cal.App.4th 534 (Cal.App. 1st Dist. 1998). Conspiracy with corporate “officers and owners” is less favored in the law than a concert with those outside one’s company.
The MDL order conditionally consolidated the Sherman Act, i.e., the rule of reason cases. Consider though that §3 of the Clayton Act, which may provoke a rule of per se illegality, makes it “unlawful …to lease …commodities ..on the condition …that the lessee ..shall not use or deal in the goods” of others.
We will watch the wire for continuing developments. Recalled however is that cartoon, with two neighbors talking over the fence, and one observes: ‘I’ve got 387 channels now, and there’s not a darn thing on any of them.’
Posted in IP-Antitrust | Comments Off
February 9, 2010 by thomason.
Per an earlier post, this Spring semester has a lot of IP to offer. Tomorrow afternoon, 2/10, Prof. Donald Chisum will sum up some of the most significant patent cases from 2009. Then, on Thursday afternoon, 2/11, Prof. Janice Mueller will give the Randall-Park lecture on The ‘Impossible Issue’ of Non-Obviousness in Design Patents.
Both lectures are in the main courtroom at the UK Law School, Lexington, KY.
Posted in Patents - Federal Circuit | Comments Off