Technological Innovation and Intellectual Property highlights:

Choose: patent quality or continuations?

Cecil Quillen argues that the patent bar can't have it both ways: unless the Patent Office restricts continuing applications, patent quality will inevitably suffer.

Have the courts already fixed the US Patent system?

Brad Smith, General Counsel of Microsoft, recently suggested that history might be repeating: during the late 19th century, growing concern about patent "sharks" lead to calls for patent reform. But the courts, not the legislature, made changes to patent law. Brad stated that the Supreme Court today has already made most of the changes that Microsoft was seeking in legislation. Jim Bessen argues that if history is really repeating, then we should see a decline in litigation. That is not happening, at least not so far (see below).

Eric Maskin wins Nobel Prize

One of the winners of this year's Nobel Prize in economics has done some important work on patents and innovation.

Patents more often in lawsuits

Not only is the absolute number of lawsuits increasing, but the probability that a patent will be in a lawsuit continues to rise.

We rarely get the chance to make the case for protecting any form of intellectual property. Here is one from Mike Masnick at Techdirt. The Korean cell phone maker, LG, is peddling a phone called Black Cherry very close to RIM's BlackBerry link here. If people are as mindless about shopping for named goods as I, they could easily confuse them. That is the bottom-line case for trademarking--it's protection for the buyer.

This is rich. You remember John Dillinger? The famous Depression-era bank robber? More than 70-years after police shot him down in Chicago, his great-nephew is claiming that he is owed royalties for the use of Dillinger's name and likeness. All thanks to a misuse of an already ridiculous Indiana 'publicity' law.

[Jeffrey Scalf] says he has been ripped off by the author and publisher of a Dillinger biography, who refused to pay him licensing fees. He feels burned by restaurateurs who use the 1930s bank robber's name to hawk burgers and beer, and cheated by a California video-game company that used Dillinger's digital likeness in a game about gangsters.

And don't even get Scalf started on civic leaders and festival organizers who stage public events using the notorious thief's name and exploits -- but won't pay him to use the name. It's highway robbery, he says.

By day, Scalf is a marketing executive for the Indiana Pacers basketball team. At night, he is at his computer, searching the Internet for information about Dillinger -- and hunting down those who would either profit from or smear his memory.

... Since 2001, Scalf has filed lawsuits or threatened legal action against those who blame his great-uncle for the police officer's killing, including cafe owners, museum organizers, historical societies and rural township officials. He has demanded that anyone using the name sign a waiver promising not to portray the bandit as vicious or mean-spirited.

"John did some bad things. He lived a tragic life," says Scalf. "But he was no killer."

That claim has drawn ridicule from most historians, and those targeted by Scalf say he is the one exploiting Dillinger -- for his own profit and personal glory.

"This isn't about preserving history," says author Dary Matera, whose publisher tangled with Scalf over "John Dillinger: The Life and Death of America's First Celebrity Criminal." "It's about control and money."

...

An Indiana law, known as a postmortem right of publicity, allows Scalf and other descendants the right to charge for, or prevent the use of, Dillinger's name, likeness, voice or personality, says Amy Wright, Scalf's attorney. In Indiana, such rights last 100 years after a person's death and cover, among other things, the deceased's signature, photograph, distinctive appearance and mannerisms.

After Dillinger's death, Scalf's grandmother held a majority portion of the rights, according to Wright, until she handed them over to her grandson in 1997. (She died in 2001.)

...

[Scalf] sued a computer game company in San Francisco. (They settled.) He fought with a Dillinger-themed restaurant in Hudson, Ind. (Its owner also settled.) He challenged a group of community boosters hosting a Dillinger Days festival in downtown Mason City, Iowa. (The town renamed the festival.)

...

That Scalf has turned to the law as a weapon to defend the legacy of a notorious criminal doesn't seem strange to him.

"John would have appreciated the irony," Scalf says. "Just because he broke the law doesn't mean other people can."

...

"There's a market in this," [Scalf] says.

There is indeed a market in this. Which proves just how sickening the 'right of publicity' legal scam truly is.

Read the whole story here, if you can dare stomach it.

Compare this case to what the 8th Circuit has recently ruled regarding the 'right of publicity'. (And yes - I continue to insist on always putting the phrase 'right of publicity' in quotes since it remains an illegitimate legal concept in my eyes. Hopefully the Dillinger case illustrates why I feel as such.)

Oh, and by the way, another federal court has already ruled that the Indiana 'publicity' law only applies to personalities who died after the law was first enacted in 1994. John Dilinger missed the boat by 60 years in this case.

T-Mobile claims to own the color magenta, ostensibly having put it under trademark. The law on this is complicated beyond belief, which allows an otherwise ridiculous determination to continue to be enforced. Read all about it here and here.

Who is going to sue at great expense to get it overturned?

Patent troll NTP (otherwise described as a patent-licensing company) has had its patent-infringement lawsuit against Sprint Nextel, AT&T, and Verizon put on hold until the Patent Office finishes its review of NTP's patents link here. It was previously determined that those patents, covering wireless e-mail transmission and reception, should not have been issued, but NTP appealed that finding and the review is still underway.

NTP's suit was a desperation measure, given the adverse first review of its patents, but it is still good news that it can't proceed for now because the defendants will incur no further costs for the moment and face no financial pressure to settle with NTP.

We wrote earlier about Fox TV issuing takedown notices to several Republican candidates who used clips from the last debate in their ads. The story gets more interesting now, since Fox has gone after Mitt Romney who had his lawyer reply that what he had done was fair use link here and here. Fox now counterclaims Romney's ad far exceeds fair use.

Will they go to court? That would be an interesting chance to reexamine the meaning of fair use. Stay tuned.

Why is that news? Because Procter & Gamble, maker of Folgers coffee, and Kraft, maker of Maxwell House, are suing one another for patent infringement link here and here. Each claims to have a patent on the can or some element of it.

Here is the actual patent: Patent #7,169,418 "A fresh packaging system for roast and ground coffee having a top load capacity of at least about 16 pounds (7.3 Kg) comprising a container with a closed bottom, an open top, and a body enclosing a perimeter between the bottom and the top. A protuberance is continuously disposed around the perimeter of the body proximate to the top and forms a ridge external to the body. A flexible closure is removeably attached and sealed to the protuberance so that the closure seals the interior volume of the container. The container bottom and container body are constructed from a material having a tensile modulus number ranging from at least about 35,000 to at least about 650,000 pounds per square inch (at least about 2,381 to at least about 44,230 atm)."

That isn't coffee you smell, its prior art.

The fight over fair use of copyrighted video material is getting more complicated. The Big Content side of the argument wants to use a cheap way, filters, to determine copyright violation, leading to an automatic take-down notice which it wants the You Tubes of the world to obey. The Public Interest groups argue that fair use under that system will get lost and proposes freer and more flexible guidelines. You can read more about the differences here and here .

No sign yet of who is likely to prevail. Too bad no one comes out for doing away with copyright on the grounds that it is monopolistic and a bane of creativity.

Behold the latest proof -

Patent lawyers started breathing again Wednesday, as the specter of new patent rules was chased away -- at least for a little while -- by a Virginia court.

U.S. District Judge James Cacheris granted pharmaceutical giant GlaxoSmithKline's motion for a preliminary injunction blocking the U.S. Patent and Trademark Office from implementing rules set to go into effect today.

The new rules would reduce the number of claims, which help define a patent, and the number of continuations, which are used to amend patent claims and contest those that are rejected. Claims would be limited to 25, and continuations to just three. The current rules imposed no limits.

"I won't be alone in being among the patent attorneys who are very pleased with the injunction that was granted today," said Neil Smith, a veteran IP lawyer at Sheppard, Mullin, Richter & Hampton in San Francisco. "Anyone who cares about the strength of patents and about innovation itself saw those rules as causing some real problems -- it's a good day for the patent system."

The patent office says the rule changes are meant to speed up the patent process and eliminate the enormous backlog of applications. But opponents say the changes could weaken patents by not allowing sufficient continuances to cover ever-evolving innovations. They also say the new rules would have unfairly been retroactive on pending applications.

Notice how patent attorneys engage in Orewllian Newspeak talking about the "strength of patents" and "innovation". Always have to read between the lines with them - much like politicians.

Read the whole article here.

Via Techdirt -

"Welcome to the lovely world of patent extortion, where the money from the practice is so lucrative that one of the highest paid lawyers at a top law firm would quietly license his patents to be used against his own firm's clients in exchange for a cut of the profits."

You have to read it to believe it.