Many thanks to Patently-O for reminding me of the contribution Steven Jobs made as a technology and an Intellectual Property innovator.
Tuesday, October 11, 2011
Interesting Designs
Given the recent passing of Steven Jobs, I selected one old and one new design on which he was listed as an inventor.
Many thanks to Patently-O for reminding me of the contribution Steven Jobs made as a technology and an Intellectual Property innovator.
Many thanks to Patently-O for reminding me of the contribution Steven Jobs made as a technology and an Intellectual Property innovator.
Friday, September 16, 2011
Guest Post:The Expansion of Overlapping Intellectual Property Rights
Today's post was written by Andrew Beckerman-Rodau a Professor at Suffolk University Law School. Professor Beckerman-Rodau has also published a podcast on the same subject available here.
As a law professor, engineer, and patent attorney, I am an advocate of strong intellectual property rights (IPR). However, the extent of what is currently protectable under U.S. IP law has become too expansive. Design patent law, copyright law, and trademark law have grown significantly over the past few decades. Design patent law was first enacted in the 1800s to cover the ornamental appearance of commercial products. This is often referred to as industrial design protection. According to legislative history it was needed to fill a gap in the existing law because neither utility patent law nor copyright law provided protection for such industrial design even though protection had long been available in Europe. Copyright law originally covered only the form of expression embodied in maps, charts, and books. Trademark law – a species of unfair competition law – protected the mental association between symbols, words and short phrases that identified products or services against third party commercial uses that would create consumer confusion.
Today, copyright law covers many things including software, building designs, three dimensional commercial products such as jewelry or a lamp, directories, compilations of facts, financial reports, music, movies, pantomimes, choreography, photographs, sound recordings, and the bar examination. Almost anything, including a specific characteristic of a product, can potentially be a trademark today if it signals to consumers that the product comes from a specific producer or seller. This has enabled trademark protection to be obtained for colors, sounds, shapes, smells, feel, music, trade dress, and even putting goats on the grass roof of a restaurant to attract customers (U.S. Service Mark Reg. No. 2,007,624). Likewise, design patent protection is no longer limited to the ornamental exterior appearance of an industrial or consumer product. It is routinely granted for graphical displays such as computer icons that appear on a computer monitor or functional products such as clothing or headgear.
It has long been permissible to protect different aspects of a product under different bodies of IP law. However, the modern expansion of what is covered via patent law, copyright law, and trademark law has inadvertently resulted in overlapping IPR. This is problematic because each body of IP law has a different term of protection. And, these terms are based on a balance of competing interests. Namely, providing adequate property protection to incentivize investment in innovation and creativity while not preventing such innovation and creativity from both benefiting the public and being freely available.
Obtaining simultaneous protection under multiple bodies of IP law can interfere with this balance. Under both design patent law and copyright law the property rights end when the term of protection runs out. At the end of the 14 year design patent term the subject matter should enter the public domain. However, copyright protection typically lasts for the author’s life plus 70 years so copyright protection would interfere with the subject matter entering the public domain because copyright rights will continue to exist for many decades after expiration of a design patent. Likewise, trademark rights could interfere with subject matter protected by patent law and by copyright law because trademark rights, which can potentially last forever, can continue to exist despite expiration of any patent or copyright rights.
Examples of Overlapping IPR
Google obtained U.S. Design Patent D599,372 for the following computer interface. It also claims copyright protection for this interface.
The following graphical work in the form of a computer icon is protected via U.S. Design Patent D295,764.
The following graphical work in the form of a computer icon is protected by registered U.S. Copyright Office Registration no. VA0001638936.
Product containers such as the well-know Coke bottle, shown below, have been protected by U.S. Design Patent D63,657 and have subsequently been registered as a trademark (U.S. Trademark Reg. No. 1,057,884).
Apple Computer has obtained trademark protection for both the two dimensional shape of its iPod (U.S. Trademark Reg. No. 3,341,214) and the three dimensional shape of its iPod (U.S. Trademark Reg. No. 3,365,816) as shown below. A trademark registration is pending for the two dimensional shape of its iPad (U.S. Trademark Reg. Serial No. 85,025,647 (filed April 28, 2010)) as shown below.
Music has long been primarily protected via copyright law. However, the song Sweet Georgia Brown has been registered as a trademark for the Harlem Globetrotters basketball team. (U.S. Trademark Reg. No. 1,700,895). Additionally, the Loonie Toons theme song has been registered as a trademark by Time Warner Inc. (U.S. Trademark Reg. No. 2,469,365).
Intellectual property law is premised on incentivizing innovative and creative activities by providing limited property rights for the fruits of such activities in order to increase the storehouse of creative and innovative knowledge for the betterment of society. Excessive overlapping protection undermines the careful balance individually developed under each body of intellectual property law. Expansion of the subject matter protected under either patent, copyright, or trademark law should only occur if it does not undermine the careful balances struck under each of the other bodies of intellectual property law. Being mindful of the balance between protection and public interest can prevent unintended over-protection of intellectual property that would work to skew the balance in favor of rights to creators and innovators at the expense of the public.
Guest Column by Professor Beckerman-Rodau re-published from IPWatchdog (here)
_________________________________________________
Professor Beckerman-Rodau is a professor of law and co-director of the Intellectual Property Law Concentration at Suffolk University Law School in Boston.
_________________________________________________
For further treatment of this topic by Professor Beckerman-Rodau see The Problem with Intellectual Property Rights: Subject Matter Expansion, 13 Yale Journal of Law & Technology 35 (2010).
About the Author
As a law professor, engineer, and patent attorney, I am an advocate of strong intellectual property rights (IPR). However, the extent of what is currently protectable under U.S. IP law has become too expansive. Design patent law, copyright law, and trademark law have grown significantly over the past few decades. Design patent law was first enacted in the 1800s to cover the ornamental appearance of commercial products. This is often referred to as industrial design protection. According to legislative history it was needed to fill a gap in the existing law because neither utility patent law nor copyright law provided protection for such industrial design even though protection had long been available in Europe. Copyright law originally covered only the form of expression embodied in maps, charts, and books. Trademark law – a species of unfair competition law – protected the mental association between symbols, words and short phrases that identified products or services against third party commercial uses that would create consumer confusion.
Today, copyright law covers many things including software, building designs, three dimensional commercial products such as jewelry or a lamp, directories, compilations of facts, financial reports, music, movies, pantomimes, choreography, photographs, sound recordings, and the bar examination. Almost anything, including a specific characteristic of a product, can potentially be a trademark today if it signals to consumers that the product comes from a specific producer or seller. This has enabled trademark protection to be obtained for colors, sounds, shapes, smells, feel, music, trade dress, and even putting goats on the grass roof of a restaurant to attract customers (U.S. Service Mark Reg. No. 2,007,624). Likewise, design patent protection is no longer limited to the ornamental exterior appearance of an industrial or consumer product. It is routinely granted for graphical displays such as computer icons that appear on a computer monitor or functional products such as clothing or headgear.
It has long been permissible to protect different aspects of a product under different bodies of IP law. However, the modern expansion of what is covered via patent law, copyright law, and trademark law has inadvertently resulted in overlapping IPR. This is problematic because each body of IP law has a different term of protection. And, these terms are based on a balance of competing interests. Namely, providing adequate property protection to incentivize investment in innovation and creativity while not preventing such innovation and creativity from both benefiting the public and being freely available.
Obtaining simultaneous protection under multiple bodies of IP law can interfere with this balance. Under both design patent law and copyright law the property rights end when the term of protection runs out. At the end of the 14 year design patent term the subject matter should enter the public domain. However, copyright protection typically lasts for the author’s life plus 70 years so copyright protection would interfere with the subject matter entering the public domain because copyright rights will continue to exist for many decades after expiration of a design patent. Likewise, trademark rights could interfere with subject matter protected by patent law and by copyright law because trademark rights, which can potentially last forever, can continue to exist despite expiration of any patent or copyright rights.
Examples of Overlapping IPR
Google obtained U.S. Design Patent D599,372 for the following computer interface. It also claims copyright protection for this interface.
The following graphical work in the form of a computer icon is protected via U.S. Design Patent D295,764.
The following graphical work in the form of a computer icon is protected by registered U.S. Copyright Office Registration no. VA0001638936.
Product containers such as the well-know Coke bottle, shown below, have been protected by U.S. Design Patent D63,657 and have subsequently been registered as a trademark (U.S. Trademark Reg. No. 1,057,884).
Apple Computer has obtained trademark protection for both the two dimensional shape of its iPod (U.S. Trademark Reg. No. 3,341,214) and the three dimensional shape of its iPod (U.S. Trademark Reg. No. 3,365,816) as shown below. A trademark registration is pending for the two dimensional shape of its iPad (U.S. Trademark Reg. Serial No. 85,025,647 (filed April 28, 2010)) as shown below.
Music has long been primarily protected via copyright law. However, the song Sweet Georgia Brown has been registered as a trademark for the Harlem Globetrotters basketball team. (U.S. Trademark Reg. No. 1,700,895). Additionally, the Loonie Toons theme song has been registered as a trademark by Time Warner Inc. (U.S. Trademark Reg. No. 2,469,365).
Intellectual property law is premised on incentivizing innovative and creative activities by providing limited property rights for the fruits of such activities in order to increase the storehouse of creative and innovative knowledge for the betterment of society. Excessive overlapping protection undermines the careful balance individually developed under each body of intellectual property law. Expansion of the subject matter protected under either patent, copyright, or trademark law should only occur if it does not undermine the careful balances struck under each of the other bodies of intellectual property law. Being mindful of the balance between protection and public interest can prevent unintended over-protection of intellectual property that would work to skew the balance in favor of rights to creators and innovators at the expense of the public.
Guest Column by Professor Beckerman-Rodau re-published from IPWatchdog (here)
_________________________________________________
Professor Beckerman-Rodau is a professor of law and co-director of the Intellectual Property Law Concentration at Suffolk University Law School in Boston.
_________________________________________________
For further treatment of this topic by Professor Beckerman-Rodau see The Problem with Intellectual Property Rights: Subject Matter Expansion, 13 Yale Journal of Law & Technology 35 (2010).
About the Author
Wednesday, August 17, 2011
Small Business Owners: Protect Your IP
If you are a small business owner, you probably have a lot to worry about, from developing your concepts, to marketing your products, to managing your employees, to growing your company. Thinking about protecting your intellectual property might not be a high priority for you, especially early on, but your intangible and innovative ideas are valuable, and protecting them is an important step in building your business that should not be overlooked.
While small businesses most commonly acquire trademarks and copyrights, there are many other ways to protect your IP, even if you did not invent the products yourself. For example, if you have come up with a clever and unique way of displaying, packaging, or selling your products, a patent could help secure rights to your design or process. Although obtaining a patent can be considerably more expensive than acquiring other forms of IP protection, as with everything else in your business, strategic up-front investments can provide significant long-term benefits, and a diverse approach to IP is often better than one that focuses only on a few types of protection.
For a quick introduction to intellectual property, take a look at this short video by MSNBC's Your Business. You may also visit the small business section of the U.S. Patent and Trademark Office's website.
While small businesses most commonly acquire trademarks and copyrights, there are many other ways to protect your IP, even if you did not invent the products yourself. For example, if you have come up with a clever and unique way of displaying, packaging, or selling your products, a patent could help secure rights to your design or process. Although obtaining a patent can be considerably more expensive than acquiring other forms of IP protection, as with everything else in your business, strategic up-front investments can provide significant long-term benefits, and a diverse approach to IP is often better than one that focuses only on a few types of protection.
For a quick introduction to intellectual property, take a look at this short video by MSNBC's Your Business. You may also visit the small business section of the U.S. Patent and Trademark Office's website.
Tuesday, August 2, 2011
Interesting Designs
Pet Feeder
This pen makes me smile.
Greeting card.
Alternate Volt design.
Fancy.
This pen makes me smile.
Greeting card.
Alternate Volt design.
Fancy.
Sunday, July 24, 2011
Design Patents Contribute to IP Portfolio’s Value
If you anticipate selling or licensing your intellectual property – or even selling products produced using that IP – it is good to know how much the IP is worth. This is particularly true in a world where IP is often a company’s most important asset. Think Google, eBay, Facebook. For these companies, the value of the server farms, the corporate campuses, and other physical assets are not all that important. So how is the IP embodied in their products valuated? There are some valuation techniques that should be considered.
As a type of intangible asset, IP is more difficult to valuate than tangible assets. One simple technique for valuating intangible assets is to take the market value of all assets and subtract from that the value of the tangible ones. This may provide a ballpark figure, but intangible assets are more than just IP; for example, goodwill and know how can have tremendous value, but they are not necessarily forms of protectable intellectual property. For example, it may be difficult to pin down a value for a patent.
Design patents are even trickier, because they only protect certain (and not necessarily all) ornamental features of a product. What percentage of that product’s value is attributable to the patent? Compounding the problem is that design patents have a limited life of 14 years, so the patent has no value after it expires and the property enters the public domain. Furthermore, most IP, outside of perhaps pharmaceuticals, loses value over time. One reason is because the protectable knowledge becomes stale or obsolete. Another is that as the patent term nears its end, others may decide that they can wait out the patent’s expiration rather than seek rights to it.
Nevertheless, in some circumstances, design patents can be quite valuable. For instance, 2Tone Apparel of Tempe, Arizona. 2Tone Apparel, founded in 2006, makes “fan wear and sports apparel” for various customers including colleges and universities. In a recent press release, 2Tone Apparel announced a newly acquired design patent (D638,607) for a t-shirt. According to the release, the design includes “a seam that runs continuously from the neck to the end of the sleeve on both the left and right sides of the garment bringing together two different colors of the same material:”
There is no doubt that 2Tone’s design patent is a significant asset (anyone can make ordinary t-shirts), and 2Tone is distinguishing itself on this basis. Founded in 2007, 2Tone is a recent startup that is particularly motivated to grow its business, and it appears to be placing all bets on this shirt design.
In addition to the subtractive approach mentioned above, there are three traditional approaches to valuating IP: the cost approach, the market approach, and the income approach. The cost approach attempts to determine how much it would cost to recreate the IP. This is an unusual concept in that typically IP only needs to be created once (unless the inventor dies with his secrets), and accordingly the cost approach is generally of little use except where the IP has a very low value. Also, subsequent recreations of the IP are likely to be less expensive because many costs have already been sunk, or the IP has become obsolete.
The market approach is typically used for valuating real estate, where sales of comparable homes are used to valuate the house up for sale. In real estate it is said that the most useful comparisons are between houses of similar size, number of bedrooms, bathrooms, etc., and that the ornamental features of the house (flooring, fixtures, and so forth) are only used to make adjustments from the sale prices of the comparable home(s). The trouble with IP is how do you find a comp? And even if you do, how do you identify how much that IP is selling for (especially with non-public companies)? There may not be enough information for the market approach to work.
The income approach is generally considered by far the most useful of the three approaches, especially when the IP is already producing a stream of income. The value of the IP is based on the cash flow that the IP generates or is expected to generate in the future. This can be predicted based on past sales, current orders, and other trends. If the product incorporating the IP has proven market success, it is likely to produce more income than if it is still fledging. Furthermore, the value of the IP can be supplemented by other factors, such as marketing, quality control, and even, presumably, celebrity endorsements or good old fashioned word-of-mouth.
For 2Tone, getting the word out about its new design patent can help drive sales if the design proves to be popular among consumers. Yet fashion is a fleeting thing, and whether or not 2Tone can capitalize on its design may depend more on current trends than anything else. The income approach can help determine if 2Tone should license its IP, sell it outright (while the market is hot), or hold on to it until the time is right.
As a type of intangible asset, IP is more difficult to valuate than tangible assets. One simple technique for valuating intangible assets is to take the market value of all assets and subtract from that the value of the tangible ones. This may provide a ballpark figure, but intangible assets are more than just IP; for example, goodwill and know how can have tremendous value, but they are not necessarily forms of protectable intellectual property. For example, it may be difficult to pin down a value for a patent.
Design patents are even trickier, because they only protect certain (and not necessarily all) ornamental features of a product. What percentage of that product’s value is attributable to the patent? Compounding the problem is that design patents have a limited life of 14 years, so the patent has no value after it expires and the property enters the public domain. Furthermore, most IP, outside of perhaps pharmaceuticals, loses value over time. One reason is because the protectable knowledge becomes stale or obsolete. Another is that as the patent term nears its end, others may decide that they can wait out the patent’s expiration rather than seek rights to it.
Nevertheless, in some circumstances, design patents can be quite valuable. For instance, 2Tone Apparel of Tempe, Arizona. 2Tone Apparel, founded in 2006, makes “fan wear and sports apparel” for various customers including colleges and universities. In a recent press release, 2Tone Apparel announced a newly acquired design patent (D638,607) for a t-shirt. According to the release, the design includes “a seam that runs continuously from the neck to the end of the sleeve on both the left and right sides of the garment bringing together two different colors of the same material:”
There is no doubt that 2Tone’s design patent is a significant asset (anyone can make ordinary t-shirts), and 2Tone is distinguishing itself on this basis. Founded in 2007, 2Tone is a recent startup that is particularly motivated to grow its business, and it appears to be placing all bets on this shirt design.
In addition to the subtractive approach mentioned above, there are three traditional approaches to valuating IP: the cost approach, the market approach, and the income approach. The cost approach attempts to determine how much it would cost to recreate the IP. This is an unusual concept in that typically IP only needs to be created once (unless the inventor dies with his secrets), and accordingly the cost approach is generally of little use except where the IP has a very low value. Also, subsequent recreations of the IP are likely to be less expensive because many costs have already been sunk, or the IP has become obsolete.
The market approach is typically used for valuating real estate, where sales of comparable homes are used to valuate the house up for sale. In real estate it is said that the most useful comparisons are between houses of similar size, number of bedrooms, bathrooms, etc., and that the ornamental features of the house (flooring, fixtures, and so forth) are only used to make adjustments from the sale prices of the comparable home(s). The trouble with IP is how do you find a comp? And even if you do, how do you identify how much that IP is selling for (especially with non-public companies)? There may not be enough information for the market approach to work.
The income approach is generally considered by far the most useful of the three approaches, especially when the IP is already producing a stream of income. The value of the IP is based on the cash flow that the IP generates or is expected to generate in the future. This can be predicted based on past sales, current orders, and other trends. If the product incorporating the IP has proven market success, it is likely to produce more income than if it is still fledging. Furthermore, the value of the IP can be supplemented by other factors, such as marketing, quality control, and even, presumably, celebrity endorsements or good old fashioned word-of-mouth.
For 2Tone, getting the word out about its new design patent can help drive sales if the design proves to be popular among consumers. Yet fashion is a fleeting thing, and whether or not 2Tone can capitalize on its design may depend more on current trends than anything else. The income approach can help determine if 2Tone should license its IP, sell it outright (while the market is hot), or hold on to it until the time is right.
Thursday, May 26, 2011
Road Trip!!! An International Survey of Design Protection of Computer Screen Displays
Previous posts of the Ordinary Observer (such as this) describe how design patents can be utilized to protect computer icons and screen displays under U.S. law. During a recent conversation with a client, I was asked to compare and contrast how U.S. law differs from the law of other jurisdictions in this regard. After a bit of research, I pulled together the following sampling of international design patent law.
Canada
We start our world tour just north of the border in Canada, where industrial designs are registered, not examined. Perhaps unsurprisingly given Canada’s close ties to the U.S., computer-generated icons are eligible for industrial design protection in Canada, provided that they are embodied in a finished article and meet the following requirements:
The icon must be visible when the article is used for its intended purpose;
The features of the icon must not be dictated solely by a utilitarian function of the article;
The title must identify the finished article in which the icon is embodied (e.g., computer monitor, washing machine); and
The drawings or photographs must show the entirety of the finished article in which the icon is embodied.
Successfully registered computer-generated icons are protected for a 5 year term, with an additional 5 year extension available in exchange for payment of a maintenance fee.
Europe
Our next stop is Europe, where registered community designs (RCDs) can be used to protect screen displays and other “graphic symbols.” This broad definition of design embraces the screen displays without reference to the display hardware. Successfully registered graphic symbols are protected for a 5 year term, with 4 additional 5 year extensions available for a total of 25 years of potential protection. Given the Ordinary Observer’s coverage of RCDs to date (including this post from my colleague Keith Noe and this post from my colleague Mathew Grady), our stop here will be a brief one. One point worth noting, however, before we continue is that some large players in this space are actively acquiring the rights provided by RCDs.
China
Next up is China, where (according to this presentation authored by the Industrial Design Examination Department, SIPO of P.R.C) industrial design protection does not embrace screen displays or any pattern that is displayed when the product is electrified. However, as discussed by Yuying Guan here, Chinese industrial designs are not substantively examined. Thus, as a practical matter, including screen display elements in Chinese industrial design applications may not result in refusal and may provide additional, easy-identifiable characteristics of the registered product vis-Ã -vis potential infringers. Apple, Inc. appears to agree, as evidenced by this post. In China, successfully registered industrial designs are protected for a 10 year term.
Japan
The final stop on our whirlwind tour is Japan. Japanese design law appears to be quite particular in regards to screen displays. According to Design Examination Standards published by the Japanese Patent Office, “a graphic image itself is not to be regarded as a protectable subject matter but to be protected as a part of an article under the Japanese Design Act.” Japanese law further restricts protection to graphic images to those displayed when the article rendering the display is in “a state in which the article is enabled to perform its functions.” This has lead at least one commentator to the conclusion that the only screen displays covered by Japanese design law are those displayed after initial boot of the device. Designs successfully registered under Japanese law have a 15 year term.
As described above, the scope of protection afforded to computer screen displays under design patent law varies remarkably between jurisdictions. These variations underscore the need for careful consideration and planning when fashioning a strategy to protect products with innovative and commercially valuable screen designs.
Canada
We start our world tour just north of the border in Canada, where industrial designs are registered, not examined. Perhaps unsurprisingly given Canada’s close ties to the U.S., computer-generated icons are eligible for industrial design protection in Canada, provided that they are embodied in a finished article and meet the following requirements:
The icon must be visible when the article is used for its intended purpose;
The features of the icon must not be dictated solely by a utilitarian function of the article;
The title must identify the finished article in which the icon is embodied (e.g., computer monitor, washing machine); and
The drawings or photographs must show the entirety of the finished article in which the icon is embodied.
Successfully registered computer-generated icons are protected for a 5 year term, with an additional 5 year extension available in exchange for payment of a maintenance fee.
Europe
Our next stop is Europe, where registered community designs (RCDs) can be used to protect screen displays and other “graphic symbols.” This broad definition of design embraces the screen displays without reference to the display hardware. Successfully registered graphic symbols are protected for a 5 year term, with 4 additional 5 year extensions available for a total of 25 years of potential protection. Given the Ordinary Observer’s coverage of RCDs to date (including this post from my colleague Keith Noe and this post from my colleague Mathew Grady), our stop here will be a brief one. One point worth noting, however, before we continue is that some large players in this space are actively acquiring the rights provided by RCDs.
China
Next up is China, where (according to this presentation authored by the Industrial Design Examination Department, SIPO of P.R.C) industrial design protection does not embrace screen displays or any pattern that is displayed when the product is electrified. However, as discussed by Yuying Guan here, Chinese industrial designs are not substantively examined. Thus, as a practical matter, including screen display elements in Chinese industrial design applications may not result in refusal and may provide additional, easy-identifiable characteristics of the registered product vis-Ã -vis potential infringers. Apple, Inc. appears to agree, as evidenced by this post. In China, successfully registered industrial designs are protected for a 10 year term.
Japan
The final stop on our whirlwind tour is Japan. Japanese design law appears to be quite particular in regards to screen displays. According to Design Examination Standards published by the Japanese Patent Office, “a graphic image itself is not to be regarded as a protectable subject matter but to be protected as a part of an article under the Japanese Design Act.” Japanese law further restricts protection to graphic images to those displayed when the article rendering the display is in “a state in which the article is enabled to perform its functions.” This has lead at least one commentator to the conclusion that the only screen displays covered by Japanese design law are those displayed after initial boot of the device. Designs successfully registered under Japanese law have a 15 year term.
As described above, the scope of protection afforded to computer screen displays under design patent law varies remarkably between jurisdictions. These variations underscore the need for careful consideration and planning when fashioning a strategy to protect products with innovative and commercially valuable screen designs.
Wednesday, May 18, 2011
Monday, April 25, 2011
DESIGN PATENT REEXAMINATION
The recent decision in Vanguard v. Bank of America (reviewed by The Ordinary Observer – here) has highlighted the increased interest in reexamination of design patents, which has logically followed a perceived increase in the enforcement of design patents.
In a recent article, Tracy-Gene Durkin analyzed the cumulative statistics released by the USPTO, and identified reexamination trends specific to design patents. The statistics were covered a ten year period from January 1999 to December 2009.
During that period the USPTO Official Gazette noticed 5,594 requests for reexamination. Of these, 97 or 1.7% were requests for reexamination of design patents. Of the 97 reexaminations, 85 were conducted ex parte and 12 were inter partes.
The most notable statistic to come out of the review is a better than 50% cancellation rate of design patents under reexamination. Clearly, this high cancellation rate suggests a significant role for reexamination of designs, and Durkin predicts it will lead to the increased use of reexamination for design patents. The threat of reexamination given such a high cancellation rate provides significant leverage to a defendant charged with infringing a patented design. Furthermore, statements made during reexamination may provide the basis for a finding of non-infringement should the patent survive the reexamination process.
Recent decisions have arguably relaxed the necessary showing for infringement of design patents (Egyptian Goddess Inc. v. Swissa Inc. (analyzed - here), Crocs, Inc. v. International Trade Commission (analyzed - here), and International Seaway Trading Corp. v. Walgreens Corp. (analyzed - here)) suggesting that an increase in the enforcement of patented designs will follow. In such a landscape, the expectation follows that reexamination will be used more frequently as enforcement efforts increase.
Interestingly, the actual numbers fail to establish any trend showing an increase in reexamination of design patents (slide show - page 6). Further analysis of more recent numbers continues to defy expectation. Comparing the total change in the number of filings from December 31, 2009 to September 30, 2010 (ex parte 2009, 2010 & inter partes 2009, 2010)) shows only 8 ex parte and no inter partes requests for reexamination for 2010 through September 30, 2010.
In spite of the numbers failing to establish any definitive trend in the number of reexamination requests, there is no escaping the significant role that reexamination can play when considering patented designs.
In a recent article, Tracy-Gene Durkin analyzed the cumulative statistics released by the USPTO, and identified reexamination trends specific to design patents. The statistics were covered a ten year period from January 1999 to December 2009.
During that period the USPTO Official Gazette noticed 5,594 requests for reexamination. Of these, 97 or 1.7% were requests for reexamination of design patents. Of the 97 reexaminations, 85 were conducted ex parte and 12 were inter partes.
The most notable statistic to come out of the review is a better than 50% cancellation rate of design patents under reexamination. Clearly, this high cancellation rate suggests a significant role for reexamination of designs, and Durkin predicts it will lead to the increased use of reexamination for design patents. The threat of reexamination given such a high cancellation rate provides significant leverage to a defendant charged with infringing a patented design. Furthermore, statements made during reexamination may provide the basis for a finding of non-infringement should the patent survive the reexamination process.
Recent decisions have arguably relaxed the necessary showing for infringement of design patents (Egyptian Goddess Inc. v. Swissa Inc. (analyzed - here), Crocs, Inc. v. International Trade Commission (analyzed - here), and International Seaway Trading Corp. v. Walgreens Corp. (analyzed - here)) suggesting that an increase in the enforcement of patented designs will follow. In such a landscape, the expectation follows that reexamination will be used more frequently as enforcement efforts increase.
Interestingly, the actual numbers fail to establish any trend showing an increase in reexamination of design patents (slide show - page 6). Further analysis of more recent numbers continues to defy expectation. Comparing the total change in the number of filings from December 31, 2009 to September 30, 2010 (ex parte 2009, 2010 & inter partes 2009, 2010)) shows only 8 ex parte and no inter partes requests for reexamination for 2010 through September 30, 2010.
In spite of the numbers failing to establish any definitive trend in the number of reexamination requests, there is no escaping the significant role that reexamination can play when considering patented designs.
Thursday, April 14, 2011
Friday, April 8, 2011
UPDATE: Mirror Worlds v. Apple
As reported here last autumn, a jury found that Apple's Cover Flow, Time Machine and Spotlight technologies infringed Mirror Worlds' patents. On April 4, the trial court reversed the verdict. For the time being, Apple's design patent has not had any apparent effect on the proceedings.
Thursday, April 7, 2011
Why Advocacy Matters
The role of an advocate in any legal proceeding includes educating the court so that it can make a just and fair decision. While many judges usually arrive in the courtroom well-versed in the law relevant to the case, at times they may need assistance from the advocate to understand nuances or marshal complex facts. Some cases are resolved incorrectly or incompletely because the court did not adequately understand the facts and/or the law. There may also be instances where a “correct” result was reached, but under a flawed analysis. While I am not sure whether the following story falls under the former or latter, it may still stand as a cautionary tale for the importance of advocacy in any patent dispute.
In 1993, Ann McAlear developed a product called the Seat Sack®, which simply stated is a pouch that attaches to the back of a chair. It may be used, for example, by students to store their belongings while at school.
Ms. McAlear later received U.S. Design Patent D358,731 for a “Sack for Hanging on the Back of a Chair.”
In 2000, McAlear entered into an agreement with Childcraft Education Corp. that gave Childcraft the exclusive right to resell Seat Sacks® that it purchased from McAlear. For a number of years, Childcraft sold the Seat Sack®. In 2003, Childcraft began selling a similar, but not identical, product called the Seat Pocket™ that it developed itself. You should now have an idea of where this is going.
In 2007, McAlear’s company Seat Sack Inc. sued Childcraft (and others) alleging, among other things, trademark infringement, false advertising and unfair competition. See SEAT SACK, INC. v. CHILDCRAFT EDUCATION CORP. and SCHOOL SPECIALTY, INC., No. 07 Civ. 3344 (JLC), United States District Court, S.D. New York., May 7, 2010. While the original complaint does not specifically assert patent infringement, McAlear’s design patent is specifically mentioned several times in support of other claims, including one alleging “unlawful use of Plaintiff’s patented product.” Nonetheless, the issue of patent infringement was ultimately considered by the court. The District Court granted summary judgment in favor of the defendants on most of the plaintiff’s claims, including the patent infringement claim. Here are a few reasons why this may have happened:
1. There was no evidence that McAlear had ever assigned her patent to her company, therefore the plaintiff had no enforceable rights in it. Presumably, if the lawsuit had named McAlear individually as one of the plaintiffs, this issue could have been better dealt with. 35 U.S.C. § 261 states that patents “shall be assignable in law by an instrument in writing.” Although this has been interpreted to require that all assignments be in writing, the Federal Circuit has also concluded that title in a patent can be transferred in ways other than by assignment, such as by operation of law (see, e.g., Akira Akazawa v. Link New Tech, 520 F.3d 1354 (Fed. Cir. 2008) (patent ownership may be transferred by the law of intestacy)). However, McAlear’s testimony that she gave Seat Sack rights in her patent was deemed insufficient to establish that a proper transfer of ownership had occurred.
2. As the court stated, “The '731 Patent claims an ‘ornamental design for sack for hanging on the back of a chair, as shown.’ The black and white drawings and figures in the patent depict an unadorned pouch from various angles. No other ornamentation is shown.” Unadorned? No other ornamentation? Someone apparently didn’t explain this concept to the judge. I see ornamentation aplenty. Now, whether or not any of that would have helped in this case, I don’t know, but there was clearly a complete failure by the plaintiff to argue this point.
Consider the above photographs of the two pouches, and the patent drawings. Overall, the two products appear to be almost identical in shape and size. The most obvious difference (other than the prominent names printed on them) is that the Seat Pocket™ includes several additional, smaller pouches on the outside for holding things like pens and pencils that neither the Seat Sack® nor the patent has. Also, the nametags are on different portions of the pouch, and are not shown in the patent illustrations.
Would you say that the design in the patent includes ornamental features that are not dictated by function alone? I would say “yes” at least for the shape of the pouch opening and the angled top corners.
Would you say that otherwise the two products appear to be “substantially the same?” One might argue that the addition of the outer pockets and relocation of the nametag are trivial changes, but as we saw in a prior case, simply adding a hole to a credit card warranted a patent. But since the so-called point-of-novelty test was eliminated in Egyptian Goddess, we are also to look to the “sameness of effect upon the eye.” How does the addition of the extra pockets affect this determination? What about the prominently displayed names, which would make clear the source of each pouch? Here is one instance where the lack of advocacy probably worked against the plaintiff.
3. Apparently, the plaintiff’s attorney didn’t originally intend to assert patent infringement because the complaint alleged “unlawful use of Plaintiff’s patented product” without citing the patent infringement statutes at all (as discussed above, this seems like it was primarily a trademark case). Despite this, the defendant observed in its brief that this was probably a claim for infringement of the design patent, and the court agreed. In a related note, on appeal this case was transferred from the Second Circuit to the Federal Circuit because the Federal Circuit has exclusive jurisdiction over patent issues (again, even though this was a trademark case). It is doubtful that this transfer of venue was expected by the plaintiff.
4. The weakness of the plaintiff’s position is reflected in the following portion of the court’s opinion:
It appears that the defendants only had to do some basic homework to knock the plaintiff clear out of the courtroom. Assuming that the plaintiff was prepared to argue for patent infringement, how did that effort fall short? The record reveals no rebuttal to the defendants’ assertions. Maybe there simply was none to give (but then, why sue in the first place?) The judge just seemed to accept everything the defendant said at face value.
What is striking here is the court’s casual dismissal of the plaintiff’s infringement claim, an apparent result of the failure to bring any arguments to the table in support of Seat Sack’s position. Although the court did not actually rule that the patent was invalid, the above language did so in effect. How did that happen? I can only surmise: ineffective advocacy. Postscript: the plaintiff appealed, and the Federal Circuit dismissed her trademark claims out of hand for similar shortcomings. The patent was not discussed.
In 1993, Ann McAlear developed a product called the Seat Sack®, which simply stated is a pouch that attaches to the back of a chair. It may be used, for example, by students to store their belongings while at school.
Ms. McAlear later received U.S. Design Patent D358,731 for a “Sack for Hanging on the Back of a Chair.”
In 2000, McAlear entered into an agreement with Childcraft Education Corp. that gave Childcraft the exclusive right to resell Seat Sacks® that it purchased from McAlear. For a number of years, Childcraft sold the Seat Sack®. In 2003, Childcraft began selling a similar, but not identical, product called the Seat Pocket™ that it developed itself. You should now have an idea of where this is going.
In 2007, McAlear’s company Seat Sack Inc. sued Childcraft (and others) alleging, among other things, trademark infringement, false advertising and unfair competition. See SEAT SACK, INC. v. CHILDCRAFT EDUCATION CORP. and SCHOOL SPECIALTY, INC., No. 07 Civ. 3344 (JLC), United States District Court, S.D. New York., May 7, 2010. While the original complaint does not specifically assert patent infringement, McAlear’s design patent is specifically mentioned several times in support of other claims, including one alleging “unlawful use of Plaintiff’s patented product.” Nonetheless, the issue of patent infringement was ultimately considered by the court. The District Court granted summary judgment in favor of the defendants on most of the plaintiff’s claims, including the patent infringement claim. Here are a few reasons why this may have happened:
1. There was no evidence that McAlear had ever assigned her patent to her company, therefore the plaintiff had no enforceable rights in it. Presumably, if the lawsuit had named McAlear individually as one of the plaintiffs, this issue could have been better dealt with. 35 U.S.C. § 261 states that patents “shall be assignable in law by an instrument in writing.” Although this has been interpreted to require that all assignments be in writing, the Federal Circuit has also concluded that title in a patent can be transferred in ways other than by assignment, such as by operation of law (see, e.g., Akira Akazawa v. Link New Tech, 520 F.3d 1354 (Fed. Cir. 2008) (patent ownership may be transferred by the law of intestacy)). However, McAlear’s testimony that she gave Seat Sack rights in her patent was deemed insufficient to establish that a proper transfer of ownership had occurred.
2. As the court stated, “The '731 Patent claims an ‘ornamental design for sack for hanging on the back of a chair, as shown.’ The black and white drawings and figures in the patent depict an unadorned pouch from various angles. No other ornamentation is shown.” Unadorned? No other ornamentation? Someone apparently didn’t explain this concept to the judge. I see ornamentation aplenty. Now, whether or not any of that would have helped in this case, I don’t know, but there was clearly a complete failure by the plaintiff to argue this point.
Consider the above photographs of the two pouches, and the patent drawings. Overall, the two products appear to be almost identical in shape and size. The most obvious difference (other than the prominent names printed on them) is that the Seat Pocket™ includes several additional, smaller pouches on the outside for holding things like pens and pencils that neither the Seat Sack® nor the patent has. Also, the nametags are on different portions of the pouch, and are not shown in the patent illustrations.
Would you say that the design in the patent includes ornamental features that are not dictated by function alone? I would say “yes” at least for the shape of the pouch opening and the angled top corners.
Would you say that otherwise the two products appear to be “substantially the same?” One might argue that the addition of the outer pockets and relocation of the nametag are trivial changes, but as we saw in a prior case, simply adding a hole to a credit card warranted a patent. But since the so-called point-of-novelty test was eliminated in Egyptian Goddess, we are also to look to the “sameness of effect upon the eye.” How does the addition of the extra pockets affect this determination? What about the prominently displayed names, which would make clear the source of each pouch? Here is one instance where the lack of advocacy probably worked against the plaintiff.
3. Apparently, the plaintiff’s attorney didn’t originally intend to assert patent infringement because the complaint alleged “unlawful use of Plaintiff’s patented product” without citing the patent infringement statutes at all (as discussed above, this seems like it was primarily a trademark case). Despite this, the defendant observed in its brief that this was probably a claim for infringement of the design patent, and the court agreed. In a related note, on appeal this case was transferred from the Second Circuit to the Federal Circuit because the Federal Circuit has exclusive jurisdiction over patent issues (again, even though this was a trademark case). It is doubtful that this transfer of venue was expected by the plaintiff.
4. The weakness of the plaintiff’s position is reflected in the following portion of the court’s opinion:
Defendants' 1/27/09 memorandum, at pages 36-37, said: "To qualify for design patent protection, a design must have an ornamental appearance that is not dictated by function alone. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 148 (1989). .... Design patents are narrow in scope in that they are strictly limited to what is shown in the drawings and only protect the novel, ornamental aspects of the design as shown in the patent. Metrokane, Inc. v. Wine Enthusiast, 185 F.Supp.2d 321, 326 (S.D.N.Y. 2002) .... (granting summary judgment to accused infringer where design patent drawings did not disclose any ornamental aspects of patented device)."
In Metrokane, at page 327, Judge Conner did indeed grant summary judgment on the first of two design patents, for the simple reason that "this design has no purely ornamental features that merit patent protection." The same is true of Ms. McAlear's design patent. It contains six drawings, which show a very simple, unornamented, functional design.
The defendants' memorandum presented two additional arguments for summary judgment as to design patent infringement. A threshold argument was: Ms. McAlear had presented no evidence that she had assigned or licensed the design patent to Plaintiff (the corporation that she formed in 1999). Even if that defect could be cured, and even if the design merited some protection, the final argument was: Childcraft's Seat Pocket contains two extra pockets, as well as a name tag holder, and thus Plaintiff cannot meet "its burden of proving [that] the two designs would appear `substantially the same' to the ordinary observer." (1/27/09 Memo., pp. 37-38, quoting Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 678 (Fed. Cir. 2008) (en banc, affirming summary judgment), cert. denied, 129 S.Ct. 1917 (2009).)
As to the threshold argument, Ms. McAlear's 2/12/09 affidavit at ¶3 says, "I have always authorized and assigned unto Seat Sack, Inc. the right to utilize this patent ...." However, defendants' reply memorandum at page 19 cites 35 U.S.C. §261 (assignment of a patent must be in writing to be effective) and Bellehumeur v. Bonnet, 127 Fed. Appx. 480, 484-85 (Fed. Cir. 2005) (party claiming oral assignment lacked standing to maintain infringement action).
Most importantly, Plaintiff has utterly failed to show that her design patent contains "novel, ornamental aspects," or that Childcraft's design appears to be "substantially the same."
It appears that the defendants only had to do some basic homework to knock the plaintiff clear out of the courtroom. Assuming that the plaintiff was prepared to argue for patent infringement, how did that effort fall short? The record reveals no rebuttal to the defendants’ assertions. Maybe there simply was none to give (but then, why sue in the first place?) The judge just seemed to accept everything the defendant said at face value.
What is striking here is the court’s casual dismissal of the plaintiff’s infringement claim, an apparent result of the failure to bring any arguments to the table in support of Seat Sack’s position. Although the court did not actually rule that the patent was invalid, the above language did so in effect. How did that happen? I can only surmise: ineffective advocacy. Postscript: the plaintiff appealed, and the Federal Circuit dismissed her trademark claims out of hand for similar shortcomings. The patent was not discussed.
Tuesday, March 15, 2011
2011 USPTO Design Day
If you are going to be in or near Alexandria on April 5, consider attending this free event sponsored by various organizations including the USPTO and AIPLA:
"Spend the day with United States Patent and Trademark Office Management and Examiners, Design Patent Practitioners and industrial designers from across the country in a lively and thought provoking discussion. We will discuss current issues in Design Patent Law, including the critical role that U.S. Design Patent Applications play in a global patent strategy, design appeals before the Board of Patent Appeals and Interferences."
For more information click here
"Spend the day with United States Patent and Trademark Office Management and Examiners, Design Patent Practitioners and industrial designers from across the country in a lively and thought provoking discussion. We will discuss current issues in Design Patent Law, including the critical role that U.S. Design Patent Applications play in a global patent strategy, design appeals before the Board of Patent Appeals and Interferences."
For more information click here
Monday, March 7, 2011
Vanguard v. Bank of America
In affirming the BPAI decision in Vanguard Identifications Systems, Inc. v. Patent of Bank of America Corporation, the CAFC issued its first ever decision on an inter partes reexamination.
In this case, the claim was directed to a data card having a circular opening positioned near the right-hand lower corner of the side of the data card having a magnetic strip.
Other embodiments of the data card included positioning the circular opening at other locations on the card. Both of the primary references relied upon by the Examiner lacked the aperture, which formed the critical design component of the claimed design. The BPAI determined that since the circular opening was lacking from each primary element, the Examiner failed “to consider the Appellant’s claimed design as a whole by disregarding the visual impression created by the aperture in the patented design.” The BPAI failed to consider the Respondent’s argument that the circular opening was functional and therefore lacked ornamentality since the issue was not on appeal.
It appears that the BPAI made it easier for practitioners arguing patentability when it is clear that the primary reference lacks any indication of the claimed feature and the Examiner relies on the secondary references for the feature. Other than this benefit, I cannot help but think that it is too bad that the reexamination process does not allow the Examiner to reject the claim on another basis, such as lacking ornamentality.
Keith Noe
Lando & Anastasi, LLP (http://www.lalaw.com/)
KNoe@LALaw.com
In this case, the claim was directed to a data card having a circular opening positioned near the right-hand lower corner of the side of the data card having a magnetic strip.
Other embodiments of the data card included positioning the circular opening at other locations on the card. Both of the primary references relied upon by the Examiner lacked the aperture, which formed the critical design component of the claimed design. The BPAI determined that since the circular opening was lacking from each primary element, the Examiner failed “to consider the Appellant’s claimed design as a whole by disregarding the visual impression created by the aperture in the patented design.” The BPAI failed to consider the Respondent’s argument that the circular opening was functional and therefore lacked ornamentality since the issue was not on appeal.
It appears that the BPAI made it easier for practitioners arguing patentability when it is clear that the primary reference lacks any indication of the claimed feature and the Examiner relies on the secondary references for the feature. Other than this benefit, I cannot help but think that it is too bad that the reexamination process does not allow the Examiner to reject the claim on another basis, such as lacking ornamentality.
Keith Noe
Lando & Anastasi, LLP (http://www.lalaw.com/)
KNoe@LALaw.com
Thursday, March 3, 2011
Monday, February 14, 2011
Amazon Sued For Design Patent Infringement
Back in December, Mint, Inc. sued Shokomoko and Amazon.com for infringing its copyright, design patent, and trade dress rights. Mint is the owner of U.S. Design Patent No. D464,532, on a "spice shaker":
Shokomoko sells hugging salt and pepper shakers through the Amazon.com Marketplace:
(You can see one of Shokomoko’s listings here.)
At first glance, Shokomoko appears to have a problem. Putting aside the substantive for a moment, though, there are some interesting procedural issues that bear mentioning as well.
For example, Mint filed the suit in the U.S. District Court for the Southern District of New York. Yet it failed to allege that Shokomoko had sold any infringing products in the district. Therefore, the Court (apparently sua sponte) ordered the parties to “submit a (compelling) letter to the Court [. . .] setting forth the reasons why venue is proper in the Southern District of New York.” When no compelling reasons were offered, the case was transferred to the Southern District of Washington, where Amazon is headquartered. (Shokomoko is based in Israel.)
Had Mint been able to allege that a "substantial part" of its sales were in the Southern District of New York, venue would have been proper. (Considering that Manhattan is served by the Southern District of New York, that shouldn’t have been hard to do.)
At any rate, my guess is that this case will settle before it goes much further, given the striking similarity between Shokomo’s product and Mint’s patented design.
Shokomoko sells hugging salt and pepper shakers through the Amazon.com Marketplace:
(You can see one of Shokomoko’s listings here.)
At first glance, Shokomoko appears to have a problem. Putting aside the substantive for a moment, though, there are some interesting procedural issues that bear mentioning as well.
For example, Mint filed the suit in the U.S. District Court for the Southern District of New York. Yet it failed to allege that Shokomoko had sold any infringing products in the district. Therefore, the Court (apparently sua sponte) ordered the parties to “submit a (compelling) letter to the Court [. . .] setting forth the reasons why venue is proper in the Southern District of New York.” When no compelling reasons were offered, the case was transferred to the Southern District of Washington, where Amazon is headquartered. (Shokomoko is based in Israel.)
Had Mint been able to allege that a "substantial part" of its sales were in the Southern District of New York, venue would have been proper. (Considering that Manhattan is served by the Southern District of New York, that shouldn’t have been hard to do.)
At any rate, my guess is that this case will settle before it goes much further, given the striking similarity between Shokomo’s product and Mint’s patented design.
Thursday, January 27, 2011
Friday, January 14, 2011
Product-centric Patenting: An Approach to Protecting the “Look and Feel” of Software Products
When asked why they wish to secure intellectual property rights, inventors often provide a succinct response: they wish to protect the “look and feel” of their product. The advantages of such protection are particularly pronounced in the realm of software implemented inventions, where interface design can make or break a product. Inexperienced attorneys often find fashioning protection for the look and feel of software products to be a vexing problem. Contributing to this difficulty is the fact that attorneys are trained to draft applications directed toward a single (or set of closely related) concepts. When presented with the bundle of ideas embodied in a single software product, it can be difficult to determine where to begin.
Fortunately, a combination of utility and design patents can often be employed to efficiently weave a web of protection for the look and feel of a product. Design patents lend themselves well to protecting the “look” of software implemented inventions. As discussed in a previous Ordinary Observer post (by Matthew Grady), design patents are increasingly being utilized to protect a variety of user interface elements. More specifically, design patents can be used to protect icons and other static graphical elements. In addition, the United States Patent and Trademark Office is presently issuing design patents that cover the movement and animation of these graphical elements. With these tools in hand, user interface innovations can be cost effectively protected using design patents.
Further, under a product-centric patenting methodology, utility patents can be used to augment and complement these design patents. Utility patents are well-suited to protect the “feel” of a software product by protecting both the innovative functions performed by the software product and, in some cases, the manner in which the functions are implemented. Utility patents can be used to cover a number of processes that, for example, lower the latency within the user interface, interoperate with other software products or efficiently store data to decrease the physical footprint of the hardware executing the software product. Thus, utility patents can be used to protect commercially valuable “under the cover” aspects of software products.
While protecting the complexity and innovation present within some software products can be a daunting challenge, careful use of design and utility patents can be used to create a web of protection for the look and feel of a software product in a cost effective manner.
Fortunately, a combination of utility and design patents can often be employed to efficiently weave a web of protection for the look and feel of a product. Design patents lend themselves well to protecting the “look” of software implemented inventions. As discussed in a previous Ordinary Observer post (by Matthew Grady), design patents are increasingly being utilized to protect a variety of user interface elements. More specifically, design patents can be used to protect icons and other static graphical elements. In addition, the United States Patent and Trademark Office is presently issuing design patents that cover the movement and animation of these graphical elements. With these tools in hand, user interface innovations can be cost effectively protected using design patents.
Further, under a product-centric patenting methodology, utility patents can be used to augment and complement these design patents. Utility patents are well-suited to protect the “feel” of a software product by protecting both the innovative functions performed by the software product and, in some cases, the manner in which the functions are implemented. Utility patents can be used to cover a number of processes that, for example, lower the latency within the user interface, interoperate with other software products or efficiently store data to decrease the physical footprint of the hardware executing the software product. Thus, utility patents can be used to protect commercially valuable “under the cover” aspects of software products.
While protecting the complexity and innovation present within some software products can be a daunting challenge, careful use of design and utility patents can be used to create a web of protection for the look and feel of a software product in a cost effective manner.
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