Breckenridge troll seeking a new home

November 15th, 2018

I’m still curious whether removal of the troll violates the Visual Artists Rights Act.

 

Heads up

November 14th, 2018

Quote of the day

November 14th, 2018

We recognize that the Board has subject matter expertise, but the Board cannot accept general conclusions about what is “basic knowledge” or “common sense” as a replacement for documentary evidence for core factual findings in a determination of patentability. Zurko, 258 F.3d at 1385-86. To hold otherwise would be to embark down a slippery slope which would permit the examining process to deviate from the well-established and time-honored requirement that rejections be supported by evidence. It would also ultimately “render the process of appellate review for substantial evidence on the record a meaningless exercise.” Id. at 1386 (citing Baltimore & Ohio R.R. Co. v. Aberdeen & Rockfish R.R. Co., 393 U.S. 87, 91-92, 89 S.Ct. 280, 21 L.Ed.2d 219 (1968)).

K/S HIMPP v. Hear-Wear Technologies, LLC, 751 F.3d 1362, 1366 (Fed. Cir. 2014) (Judge Lourie writing for the court; Judge Wallach forming the second member of the panel majority; Judge Dyk dissented).

Rule 36 Judgments for the Court of Federal Claims a rarity

November 13th, 2018

Updated 11/15/18

It is interesting how rarely the Federal Circuit has issued Rule 36 judgments in appeals from the Court of Federal Claims in the last two months — only two.  The CAFC issued opinions in appeals from the CFC in the ratio of 8 opinions to 1 Rule 36 judgment over the last two months.

 

In contrast, the court issued ten Rule 36 judgments in appeals from district courts over roughly the same period.  The CAFC issued opinions in appeals from district courts in the ratio of 7 opinions to 10 Rule 36 judgment over the last two months.

 

And, in the last two months, the court has issued sixteen Rule 36 judgments in appeals from the PTO. The CAFC issued opinions in appeals from the Patent Office in the ratio of 19 opinions to 16 Rule 36 judgments over the last two months.

That breaks down to:

CFC:  8:1

District court:  7:10

PTO:  19:16.

Don’t give up!

November 5th, 2018

The determination of this little bear cub kind of reminds me of the determination of the patent bar to accomplish patent eligibility reform.

There have been many ups and downs in the past  . . . but, I think we will finally get to the top of the mountain.

Oral Argument of the Week: Zeroclick v. Apple

October 28th, 2018

The oral argument of the week is from ZEROCLICK, LLC v. APPLE INC., No. 2017-1267 (Fed. Cir. June 1, 2018).  This oral argument was interesting in that the panel seemed a bit suspicious about Apple’s motives for asserting that the words “program” and “code” were nonce words.  While the claims were not written in Beauregard format, some questioning from the panel — namely, Judge Taranto — suggested that it was suspicious that Apple was seeking a holding that would convert Beauregard claims into means plus function claims.  Namely, if the court were to declare that “program” and “code” are nonce words, it would open up many Beauregard claims to 112¶6/112¶(f) attacks.  The panel sounded leery of making such a significant change to the law.

Beauregard claims take many forms these days; but, as one example, one might take the form such as that recited in INTERVAL LICENSING LLC v. AOL, INC., No. 2016-2502 (Fed. Cir. July 20, 2018):

18. A computer readable medium, for use by a content display system, encoded with one or more computer programs for enabling acquisition of a set of content data and display of an image or images generated from the set of content data on a display device during operation of an attention manager, comprising:

[1] acquisition instructions for enabling acquisition of a set of content data from a specified information source;

[2] user interface installation instructions for enabling provision of a user interface that allows a person to request the set of content data from the specified information source;

[3] content data scheduling instructions for providing temporal constraints on the display of the image or images generated from the set of content data;

[4] display instructions for enabling display of the image or images generated from the set of content data;

[5] content data update instructions for enabling acquisition of an updated set of content data from an information source that corresponds to a previously acquired set of content data;

[6] operating instructions for beginning, managing and terminating the display on the display device of an image generated from a set of content data;

[7] content display system scheduling instructions for scheduling the display of the image or images on the display device;

[8] installation instructions for installing the operating instructions and content display system scheduling instructions on the content display system; and

[9] audit instructions for monitoring usage of the content display system to selectively display an image or images generated from a set of content data.

 

Judge Taranto had these exchanges during the oral argument of ZEROCLICK, for example:

And, Judge Hughes had these comments, for example:

You can listen to the entire oral argument below:

 

In an apparent adjustment to distributed processing, some practitioners now begin their Beauregard claims by reciting: “One or more computer-readable storage media . . .” or the like.

Nobel Prize Winner and Patents

October 24th, 2018

I thought this was an interesting article about Dr. James Allison, the cancer researcher who was recently named the recipient of the 2018 Nobel Prize for Medicine.  [Link].

You can see some of Dr. Allison’s patents below:

10,023,637

9,375,475

8,709,417

6,051,227

5,811,097

 

Do you think the patent system played a role, whether limited or major, in funding this research?

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Breckenridge troll might be gone faster than you can say “Rule 36”

October 23rd, 2018

I reported previously about the new troll that arrived in Breckenridge over the summer. [Link].  Just a heads up, Mr. Troll might not be here, if you  are coming out to Colorado this winter.

 

 

If you were trying to remember the text of the Visual Artist Rights Act from your law school days, here it is:

§106A. Rights of certain authors to attribution and integrity

(a) Rights of Attribution and Integrity.—Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—

(1) shall have the right—

(A) to claim authorship of that work, and

(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

 

(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and

(3) subject to the limitations set forth in section 113(d), shall have the right—

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

 

(b) Scope and Exercise of Rights.—Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work.

(c) Exceptions.—(1) The modification of a work of visual art which is a result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A).

(2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence.

(3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of “work of visual art” in section 101, and any such reproduction, depiction, portrayal, or other use of a work is not a destruction, distortion, mutilation, or other modification described in paragraph (3) of subsection (a).

(d) Duration of Rights.—(1) With respect to works of visual art created on or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, the rights conferred by subsection (a) shall endure for a term consisting of the life of the author.

(2) With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.

(3) In the case of a joint work prepared by two or more authors, the rights conferred by subsection (a) shall endure for a term consisting of the life of the last surviving author.

(4) All terms of the rights conferred by subsection (a) run to the end of the calendar year in which they would otherwise expire.

(e) Transfer and Waiver.—(1) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors.

(2) Ownership of the rights conferred by subsection (a) with respect to a work of visual art is distinct from ownership of any copy of that work, or of a copyright or any exclusive right under a copyright in that work. Transfer of ownership of any copy of a work of visual art, or of a copyright or any exclusive right under a copyright, shall not constitute a waiver of the rights conferred by subsection (a). Except as may otherwise be agreed by the author in a written instrument signed by the author, a waiver of the rights conferred by subsection (a) with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work, or of ownership of a copyright or of any exclusive right under a copyright in that work.

(Added Pub. L. 101–650, title VI, §603(a), Dec. 1, 1990, 104 Stat. 5128.)

 

Would you prefer to see the troll statue stay or go?

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_______________________________________________________________

Update 10/24/18:

The Breckenridge Town Council voted to let the troll sculpture stay in place at least until next spring.  Hopefully, it will not mysteriously spontaneously combust in the middle of the night before then.

 

Federal Circuit oral argument(s) at the AIPLA Annual Meeting?

October 22nd, 2018

The annual meeting of the AIPLA seems to be held at the end of October each year.  Unfortunately, this is just before the November oral arguments are held by the Federal Circuit.  So, attorneys visiting D.C. for the annual meeting do not have the opportunity to sit in on oral arguments at the Federal Circuit.

Perhaps the AIPLA and Federal Circuit could arrange for an oral argument to be held as part of the annual meeting event and at the hotel where the meeting takes place.  I think many visiting attorneys would be interested in attending.

 

Would you be interested in attending a Federal Circuit oral argument, if given the opportunity?

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Oral argument of the week: EQUISTAR CHEMICALS, LP v. WESTLAKE CHEMICAL CORPORATION

October 21st, 2018

The oral argument of the week is from EQUISTAR CHEMICALS, LP v. WESTLAKE CHEMICAL CORPORATION, No. 2017-1548 (Fed. Cir. July 3, 2018).  The panel spent most of the hour long oral argument inquiring into the on-sale bar issue.  Questioning got fast and furious at one point with the judges stepping on one another’s questions. Cases discussed included Medicines (en banc), Helsinn, and Plumtree.

The panel remanded the on-sale bar issue back to the district court with instructions to address the following issues:

  1. What were the offers for sale of the product, and when were they made?
  2. Did the offers require the product to be made by the patented method?
  3. If the offers were accepted, was Equistar obligated to supply product made by the patented method?
  4. Before the critical date, did Equistar decide to fill orders with the patented method?
  5. Before the critical date, could orders be filled with products produced by the conventional process or was only product produced by the patented method available?
  6. Was the product produced before the critical date by the patented method made to enable the patentee to make offers before the critical date?

You can listen to the oral argument below:

The opinion is available [here].