February 05, 2008
Currywurst and Champagne
Posted by Gordon Smith

If you have been to Berlin, I assume that you have sampled Currywurst. I prefer Bosner (or Bosna) Wurst, which I encountered as a Mormon missionary in Linz, Austria, but the core ingredients are the same: sausage/hot dog, ketchup/tomato sauce, and curry powder. (The Bosner also has onions and a bun.)

Butchers in Berlin who make sausages for Currywurst are upset by imported sausages from other EU member states. So the butchers have applied for "geographic indication" protection, like that afforded "Champagne" or "Parmigiano Reggiano." The butchers want their sausage to be known as "Berliner Currywurst." The problem is that the sausages don't become "Berliner Currywurst" until you top them off with tomato sauce and curry powder. As explained by Axel Nordemann is an attorney with Boehmert and Boehmert, one of Germany's top intellectual property law firms:

The sausage itself is not a Berliner currywurst, it needs something additionally to become a currywurst. You see, you can take this ground sausage for the currywurst, you can take it and eat it with mustard, and then it's certainly not a Berliner currywurst.

As noted by Nordemann, the average consumer of Berliner Currywurst can't tell the difference between the local sausages and the imports. "Es ist mir wurst," so to say.

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September 25, 2007
Tanya Andersen Gets Attorneys Fees From RIAA
Posted by Gordon Smith

Last Monday, Marketplace described Tonya Andersen's battle with the Recording Industry Association of America (RIAA). Andersen was accused of downloading music files. Despite her repeated denials and the lack of credible evidence of infringement, the RIAA continued to press its claims. Ultimately, the RIAA agreed to dismiss its lawsuit, but only after Andersen had incurred substantial attorney's fees.

Last Friday, in response to Andersen's motion for attorney's fees, a magistrate judge in the US District Court for the District of Oregon ruled in Andersen's favor:

Copyright holders generally, and these plaintiffs [RIAA] specifically, should be deterred from prosecuting infringement claims as plaintiffs did in this case. Plaintiffs exerted a significant amount of control over the course of discovery, repeatedly and successfully seeking the court's assistance through an unusually extended and contentious period of discovery disputes. Nonetheless, after ample opportunity to develop their claims, they dismissed them at the point they were required to produce evidence for the court's consideration of the merits. Despite the protracted nature of this action, at this point, as noted by plaintiffs, there is no explanation for the inconclusive nature of the evidence relevant to their claims. Plaintiffs assert that the unresolved, or unresolvable, status of the merits provides no basis for deterrence. Plaintiffs are incorrect, because this case provides too little assurance that a prosecuting party won't deem an infringement claim unsupportable until after the prevailing defendant has been forced to mount a considerable defense, and undergo all that entails, including the incurring of substantial attorney fees.

This is deja vu for the RIAA.

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August 07, 2007
Facebook: Another Lawsuit
Posted by Gordon Smith

Last month I blogged about the lawsuit against Facebook founder Mark Zuckerberg by his former Harvard classmates. (The judge has given the plaintiffs until tomorrow to produce more evidence of a contract, noting that "Dorm room chit-chat does not make a contract.")

Today brings word that Facebook is being sued for patent infringement. (Surprise!) The short complaint is light on detail, but the claim is based on a 2002 patent for a "System for creating a community for users with common interests to interact in." Which appears to cover any social networking site.

Another data point for the case against patents? HT Peter Klein.

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May 16, 2007
Copyrighted Complaints?
Posted by Gordon Smith

Last year we discussed copyright and deal documents (read the comments, too, if that topic interests you). Today Peter Lattman has an excellent post on a dispute over complaints. Peter writes:

Earlier this month we reported on another putative class-action lawsuit filed by law firms Proskauer Rose and Bernstein Litowitz against Google. They represent the Premiership (Britain’s professional soccer league) and music outfit Bourne Co.

Grisman’s complaint, filed by Berman DeValerio in San Francisco and Lovell Stewart in New York, bears a striking resemblance to the one filed by Proskauer and Bernstein. For you, O Law Blog reader, we’ve highlighted the very substantial portions of the Berman DeValerio complaint that match word-for-word the Proskauer/Bernstein one. (Click here for the Proskauer/Bernstein complaint, and here for the Berman/Lovell complaint.)

As you will see if you click on the second complaint, most of it is copied directly from the first. Peter asks, "Should lawyers be able to copy each other's litigation documents?" Yes.

If this topic interests you, see this article by Davida Isaacs.

UPDATE: Larry Ribstein reminds me (again) that he has a paper on this topic. Indeed, the definitive paper! Mea culpa for the oversight, Larry.

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April 30, 2007
KSR Int'l Co. v. Teleflex Inc.
Posted by Gordon Smith

The Supreme Court's new opinion KSR Int'l Co. v. Teleflex Inc. on the "obviousness" inquiry under §103 of the Patent Act has IP bloggers hopping. Michael Barclay calls KSR "the most important patent case of the last 20 years, and perhaps since the passage of the 1952 Patent Act."  Dennis Crouch is not so moved, stating that "the opinion appears to simply refine the particulars of how prior-art can be combined and when a 'combined patent' will be seen as obvious."

David French calls the opinion an "anti-patent initiative by the US Supreme Court," and Mike Madison offers examples from the opinion where "Justice Kennedy, writing for the Court, may have let his pen run away from him," but Joe Miller loves this sentence from the Court's opinion: "A person of ordinary skill is also a person of ordinary creativity, not an automaton."

For my money, the most interesting part of the opinion is the section in which the Court discusses the effect of the obviousness inquiry on innovation:

The obviousness analysis cannot be confined by a formalistic conception ofthe words teaching, suggestion, and motivation, or by overemphasis on the importance of published articles and the explicit content of issued patents. The diversity of inventive pursuits and of modern technology counsels against limiting the analysis in this way. In many fields it may be that there is little discussion of obvious techniques or combinations, and it often may be the case that market demand, rather than scientific literature, will drive design trends. Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility.

The bloggers seem to agree that KSR could lead to more patents being rejected by the PTO and more existing patents being declared invalid. Is this a good thing?

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April 15, 2007
Canadian DCMA
Posted by Gordon Smith
April 07, 2007
Vonage Fading Fast
Posted by Gordon Smith

Last year I called the Vonage IPO a train wreck. Since then, the company has lost 80% of its value. The remaining 20% could be gone soon.

On Friday federal district court judge Claude Hilton issued an order prohibiting Vonage from signing new customers unless it stopped infringing on Verizon's patents. The order was issued one month after a jury found that Vonage had infringed Verizon's patents and set damages at $58 million plus a 5.5 percent royalty on future business. (Vonage's total market capitalization is only $522 million.)

Fortunately for Vonage, the appellate court stayed Judge Hilton's order, pending appeal of the case. Unfortunately for Vonage, the part of Judge Hilton's order requiring an appeal bond of more than $60 million was not removed by the appellate court. While a workaround may exist, Vonage looks to be in big trouble.

Silver lining: I won't have to remember to cancel my phone service before we move this summer.

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November 28, 2006
They "converted patents from handguns to bazookas, and at the same time stopped requiring permits to get them"
Posted by Gordon Smith

The "they" in that title is the United States Court of Appeals for the Federal Circuit. Adam Jaffe is an economist who criticizes the Federal Circuit for its role in "breaking" the patent system.

The Supreme Court heard oral arguments in KSR International v. Teleflex today, which will allow the Court to re-examine the current standard for evaluating the "obviousness" of an invention. Section 103 prevents a patent from being issued "if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains."

According to the Federal Circuit, the "evidentiary component" of obviousness is a "showing of a suggestion, teaching, or motivation to combine the prior art." Brown & Williamson Tobacco Corp. v. Philip Morris, Inc., 229 F.3d 1120, 1124-25 (Fed. Cir. 2000). During the oral arguments today, Justice Scalia said of that standard, "This is gobbledygook!"

The W$J has some background on the case, but if you want the legal briefs, go to Findlaw.

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October 26, 2006
Frontiers of IP Conference
Posted by Gordon Smith

Things are happening in Austin. On Friday and Saturday, the UT Law School will host the First Annual Conference on Empirical Legal Studies, organized by Jennifer Arlen (NYU), Bernard Black (Texas), Theodore Eisenberg (Cornell), Michael Heise (Cornell) and Geoffrey Miller (NYU).

Two weeks later, Ronald Mann will be hosting the Frontiers of IP Conference, which has an amazing lineup of speakers. And when you have had your fill of IP, you can get a stuffed avocado from Trudy's!

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October 19, 2006
Protecting the W
Posted by Gordon Smith
August 21, 2006
Copyrights in Everything: Guitar Tabs
Posted by Christine Hurt

For ten years of my misspent youth, I walked from my house to my piano teacher's house once a week where she guided me through various songs of increasing complexity from sheet music.  I was only allowed to play popular music in the summers, so most of the sheet music was quite dusty and came either from the music store a few blocks away or from the publishing company.  I didn't play by ear, and I was never taught to improvise, so my doorway to music was sheet music.  However, earlier this year I decided to take guitar lessons.  The method was quite different.  My teacher would either play something and say "copy me," or write out on staff paper the chords or fingering to a popular song that we both knew -- "Landslide" for example.  I even went shopping for sheet music, my old habit, but found that sheet music is fairly rare these days, and expensive.  Music stores don't carry a lot of sheet music any more.  My teacher told me that if I wanted the guitar tabs for a song, I should look on the Internet.

Apparently, my guitar teacher was a criminal, both for teaching me the chords of popular music, and for writing them down, and for frequenting Internet sites.  According to this NYT article today, music publishing companies are cracking down on both sites that offer free tabs and on musicians who swap guitar tabs on chat sites.  Who knew that my crazy friend who played piano by ear was really a hacker?  In the 1980s, his hacking benefitted only himself, but through the Internet he could have parlayed his talent into an industry.

One point made in the story is that these sites have filled a void -- the market for accessible, affordable sheet music.  I would have gladly paid iTunes or anyone $1 for the sheet music to Landslide (my guitar teacher's handwriting was less than perfect) if I could have.  We'll have to see how this controversy resolves itself; Jonathan Zittrain is quoted in the article as saying the case may not have much merit.

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August 09, 2006
Gender & Patents
Posted by Gordon Smith

"Our regressions on a random sample of 4,227 life scientists over a 30-year period show that women faculty members patent at about 40 percent of the rate of men."

This is from a recent paper by Waverly W. Ding, Fiona Murray, and Toby E. Stuart. What explains the difference? This is a very short paper, and the causation issue is not developed extensively, but here are some possibilities explored by the authors:

  • Productivity, social networks, scientific field, and employer attributes all affect patenting levels, but even after controlling for all of these, the authors found that gender matters. A lot.
  • Do men and women engage in qualitatively different kinds of research? The authors suggest, "if women are risk averse in their research choices, there may be a gender difference in research 'patentability'." The authors look at "scholarly impact" (measured by citation count) and find only a small gender effect, with women actually ahead of men.
  • Based on interviews with scientists, the authors suggest two other explanations for the gender gap in patents: (1) female scientists had fewer industry contacts than their male counterparts, and (2) women more often expressed a concern that pursuing commercial opportunities might hinder their university careers.
  • The authors observe a substantial generational gap. Their data go back 30 years, and senior female scientists were much less likely to engage in patenting than senior male scientists, but that gap has narrowed.
  • This was interesting: "[r]egardless of gender, those [who] experienced patenting during training were undaunted by the challenges of combining academic and commercial science." So experience in training seems to wipe out the gender gap, but men are more inclined than women to patent in the absence of training experience.

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July 22, 2006
Most Inventive Towns in the U.S.
Posted by Gordon Smith

From the W$J. Any surprises for you?


The high representation of California cities is to be expected, but Boise is a mild surprise to me. I have visited Boise, and I know that it is more than just Micron, but its placement at #8 is a bit surprising.

The W$J also has an interesting podcast to go with the story, though the story's author says Bend, Oregon like it's an obscure Tibetan village. Bend is a widely known vacation spot, right?

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May 04, 2006
Copyright and Deal Documents
Posted by Gordon Smith

Last week, at the Harvard Conference on Case Studies, John Coates offered a fascinating and harsh critique of the lawyering in the Oracle-PeopleSoft takeover battle (described expertly in a case study by David Millstone and Guhan Subramanian). One of John's big-picture points was that deals lawyering generally suffers from the fact that quality is difficult to evaluate, even after the fact, and firms are not rewarded for innovation.

With respect to this last point, we all know (don't we?) that contracts can be copied freely in subsequent transactions, without fear of liability under copyright. The usual justification for such appropriations is "fair use," and an alert reader -- former student Chris Phillips -- noticed that the W$J Law Blog is blogging about the fair use of litigation documents and quoting from this article by Davida Isaacs, a professor at the Salmon P. Chase College of Law. From the abstract:

[C]ourts should permit attorneys’ unauthorized adaptation of copyrighted litigation documents as “fair use” for two reasons. First, penalizing attorneys would not advance copyright’s goal of providing incentives to create additional works, because subsequent unauthorized use does not diminish their market value. Second, because of the presence of market failures, the copyright owners do not license their documents, as one might otherwise expect: unfortunately, both a substantial number of hold-outs as well as transaction costs thwart frequent licensing; moreover, the marketplace is ill-equipped to permit the authors to capture the cumulative increase in value caused by the benefit to the public welfare from the dissemination of the documents.

Are you convinced?

P.S The article actually begins with a vignette about copyrighting contracts, not litigation documents.

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April 11, 2006
"Greatest Of All Time"
Posted by Gordon Smith

CKX acquired the rights to exploit Muhammad Ali's image, and formed a company called "G.O.A.T. LLC" to house the operations. Goat?


By the way, the price tag on the acquisition was $50 million. According to CKX's filing with the SEC, "This transaction is a continuation of CKX’s mission to partner with iconic content and to use its resources to preserve, protect and grow this content."

CKX also owns rights to the name, image and likeness of Elvis Presley and the IDOLS television brand, which includes "American Idol."

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