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The Flake Resolution Unravels Progress in American Data Privacy for Inadequate Reasons

UC Berkeley Loses CRISPR Gene-Editing Technology Patent Decision, But Remains Optimistic

To what Extent is Software Patentable Subject Matter?

A Necessary Shift of Focus: Moving Digital Music Rights Away from Efficiency and Towards Fair Compensation

Sequenom Challenges the Scope of Patentable Subject Matter

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2013

The Flake Resolution Unravels Progress in American Data Privacy for Inadequate Reasons

Posted By Chancellor Tseng, Mar 29, 2017

On March 7th, Sen. Jeff Flake (R-AZ) introduced a resolution to block Federal Communications Commission (FCC) Internet privacy rules instituted during the Obama administration. Specifically, the resolution would nullify current FCC requirements for Internet Service Providers (ISPs)—e.g., Comcast and Verizon—to obtain consumer consent before sharing private user information. The resolution would widely impact regulation of users’ sensitive data, ranging from user names and addresses to communication content, location, and Internet search history.

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UC Berkeley Loses CRISPR Gene-Editing Technology Patent Decision, But Remains Optimistic

Posted By Jason Churchill, Feb 28, 2017

PTAB Issues Decision in UC Berkeley v Broad Institute Patent Dispute

On February 15, 2017, the Patent Trial & Appeal Board (PTAB) issued a ruling in a high-profile case, handing a loss to UC Berkeley in a long-standing fight with the Broad Institute of MIT and Harvard over patent rights to the CRISPR technology. The 51-page per curiam decision can be found here.

The CRISPR technology—described as “one of the greatest life sciences inventions ever”— has vast potential both as a research tool and for treatment of genetically-based diseases. Scientists discovered that some bacteria possess a form of acquired immunity that allows them to recognize invading viruses and destroy them by cutting the viral DNA into pieces. Researchers quickly harnessed this remarkable discovery and adapted these bacterial anti-viral defense systems into a revolutionary genetic engineering tool, called the CRISPR technology. It offers fast and easy genomic editing, that is, programmable alteration of DNA sequences at any desired location in the genome. The method is a substantial improvement over earlier available genomic editing approaches, and the stakes are high. Some observers have suggested that the patent rights may be worth billions of dollars. Certainly, whoever controls the patent rights to CRISPR stands to collect extraordinary sums of money through licensing fees.

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To what Extent is Software Patentable Subject Matter?

Posted By Sofie Andersen, Apr 14, 2016

Does the Federal Circuit leave a door open for the patentability of software in DDR Holdings?

Ever since the test used in Mayo was affirmed by the Supreme Court in Alice, many commentators noted, that this could be the end of software patents. With DDR Holding, the Federal Circuit allowed a software patent for the first time since Alice, which makes for an interesting future in the area.

The reason that the test set forth in Mayo and Alice had everyone wondering if software was doomed, requires an explanation of the strict test (the “Alice Framework”). The Alice Framework consists of two parts. The first part of the test is to identify, whether the claims at issue somehow comprises an abstract idea (one of the three judge-made exceptions to patentable subject matter). If it does, the court should determine, whether the claims add “significantly more” than the abstract idea at issue.

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A Necessary Shift of Focus: Moving Digital Music Rights Away from Efficiency and Towards Fair Compensation

Posted By Mark Peterson, Jan 29, 2016

Digital Music Licensing: Efficiency vs. Fair Compensation

Internet based digital music streaming services are the new face of the music industry. Pandora and Spotify represent some of the most successful companies voyaging into this new frontier. In part, what makes these companies successful is extensive libraries of music. It is unlikely that users will be willing to pay a subscription fee if their favorite music is not included with the service. As such, services such of Spotify have libraries containing as many as 30 million songs (https://press.spotify.com/us/information/). The daunting task that Spotify faced in creating this library was to license each and every song individually, where each song typically has several distinct rights-holders. So it goes without saying that efficient licensing is a must if digital streaming services are to thrive. However, we should be weary that the need for efficiency does not blind us from recognition of the competing need for fair, free market negotiation.

Two inversely related policy objectives in the digital music field are efficient licensing and fair compensation. Streaming services lobby for more efficient licensing, while the effected rights-holders lobby for better and fairer compensation. A song encompasses two major legal rights: a sound recording and a musical composition. For the most part, sound recordings have centralized ownership by the four major labels. Whereas musical compositions have more diffuse ownership. In light of this diffuse ownership, the lobbying for efficient music licensing has generated a compulsory license for musical compositions. 17 U.S.C. § 115. This combats the inherent challenges of having to obtain a license with so many different, diffuse rights-holders. Whereas sound recordings are governed under 17 U.S.C. § 114, which does not have a compulsory licensing scheme, but rather allows license negotiation to occur on the open market. This difference between sound recording and musical composition rights has created drastic differences in licensing rates. For instance, Pandora pays sound recording owners 50% of revenues, while the publishers only receive 4% of market share for the use of their musical composition. In re Pandora Media, Inc., 6 F. Supp. 3d 317, 353-54, 372 (S.D.N.Y. 2014). Compounding this inequity is the existence of a digital music audit right for sound recordings under section 114, and a lack of one for musical compositions under section 115. 17 U.S.C. § 114-115. Accountability is afforded to the sound recording holders, but owners of the musical composition have no such right for digital music licenses. This latter observation showcases the problem of the current music rights laws. They are outdated and desperately need revising. During their inevitable revision, we can only hope that proponents for fair compensation are heard.

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Sequenom Challenges the Scope of Patentable Subject Matter

Posted By Mark Peterson, Nov 12, 2015

Should patentable subject matter be expanded in order to encourage disclosure of discoveries such as Sequenom’s?

The Sequenom Center for Molecular Medicine, LLC recently created the MaterniT21 test. This test uses cell-free fetal DNA to assess medical conditions and the gender of unborn children. This test has been considered groundbreaking as it cheaper, faster, and safer than prior tests. The Royal Society lauded this discovery as a paradigm shift in non-invasive prenatal diagnosis. However, the Third Federal Circuit has denied Sequenom the benefit of a patent in the case Ariosa v. Sequenom.

The founding fathers abhorred monopolies. Only under the pre-tense of scientific progress were they to be tolerated, and so it was memorialized in the US Constitution. Secrets stifle scientific progress. So the quid pro quo of patent law is disclosure. Disclosure disseminates useful information that promotes innovation and the progress of science. Disclosure is the price that must be paid if the people are to suffer the monopoly that is an exclusive patent right.

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Sherlock and the Mystery of the Public Domain

Posted By Anna Pifer-Foote, Sep 10, 2014

Klinger v. Conan Doyle Estate, Ltd., decided by the Seventh Circuit in June, helps to establish when literary characters become part of the public domain. 

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Actress has Independent Interest in her Film Performance

Posted By Chris Moores, Apr 16, 2014

Facts:

Garcia v. Google, Inc. involves a dispute over the copyrights contained in a film called “Innocence of Muslims.” Garcia was cast in a minor role in “Desert Warrior,” a film. The producer told Garcia the film would be an adventure film set in ancient Arabia and paid her $500 for her one-scene performance. “Desert Warrior” was never released but the producer reused the footage of Garcia and incorporated it into an anti-Islamic film titled “Innocence of Muslims.” Garcia’s scene was partially dubbed so that she appeared to ask: “Is your Mohammed a child molester?” The film was then uploaded to YouTube. The film gained international attention and criticism. An Egyptian cleric issued a fatwa (a ruling on Islamic law) calling for the killing of everyone involved with the film. At this point, Garcia became aware of the use of her scene in “Innocence of Muslims” and began receiving death threats. Garcia responded by asking that Google remove the video from YouTube by filing 8 takedown notices under the Digital Millennium Copyright Act.

The Court’s Reasoning:

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They are not substantially similar!

Posted By JaeWon Lee, Feb 14, 2014

L.A. FingersH&M

Last July, L.A.-based photographer and director Estevan Oriol sued fashion brand H&M alleging that H&M’s photograph infringes his copyrighted image, “L.A. Fingers.” In his first amended complaint, filed in last November, Oriol alleged that H&M’s photograph is substantially similar to the L.A. Fingers in six ways. But that was not good enough to persuade the court. Early this week, on February 10, the District Court in Central District of California granted H&M’s motion to dismiss. The court held that after the unprotectable elements of the photographs are filtered out, the photographs are clearly and significantly different.

Below is the summary of the court’s responses to Oriol’s claims.

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Nintendo Pays Royalties to Tomita - 3DS Infringes Tomita's Patent

Posted By Chris Moores, Feb 13, 2014

On December 11, 2013, a Court in the Southern District of New York ordered Nintendo to pay a fixed rate royalty to Tomita Technology (“Tomita”) for each Nintendo 3DS unit sold at wholesale. The jury found that Nintendo’s 3DS infringes Tomita’s U.S. Patent No. 7,417,664 (“'664 patent”) and that the '664 patent was valid. The patented technology uses two cameras to capture the image and includes a stereoscopic display to exhibit the captured image. This method of producing 3D images is useful for its unique ability to capture and display positional information without the need for users to wear special glasses. The resulting images, while appearing to have depth, are less like the 3D seen at the movies and more like looking into a diorama. The jury found that Nintendo has incorporated this technology into 3DS’s camera and display system.

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Trick or Treat @ Android

Posted By JaeWon Lee, Nov 6, 2013

A tiger dies and leaves a skin. A man dies and leaves a name. How about this?

Q: A bankrupt tech-company?

A: A bunch of patents.

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