From the American Intellectual Property Law Association’s website:
“Section 112, first paragraph of the Patent Act requires that a patent specification not only describe the manner of making and using a claimed invention, but also separately requires a written description of the claimed invention itself, the en banc Federal Circuit held March 22, 2010, in a 9-2 decision.”
“The Court rejected the argument that the required written description of the invention is only for purposes of identifying what is to be enabled, concluding that the statutory phrase “to enable” pertains only to the required description of making and using the invention. If Congress meant to require only a description of enablement, the statute would have been written differently, Judge Lourie pointed out. He added that the Patent Act has always required a description of the invention as a basic element of the quid pro quo bargain for exclusive rights.”
I’ve been writing patent applications to include a written description of the invention itself since I started writing patents. It’s just common sense: a patent, which is an exercise in disclosure, requires that the inventor disclose not only what the invention is but also the best mode of making and using the invention. How do you do that without providing a written description of the invention?
Read the slip opinion here.
Analysis Of Google And Viacom’s Arguments Over YouTube: A Lot Of He Said/She Said | Techdirt is a nice analysis of the Viacom v. Google copyright infringement suit as it currently stands. The article leans heavily toward Google’s side of the argument.
Viacom vs. YouTube Unsealed! YouTube’s Steve Chen on Copyrighted Content: ‘Steal It!’ is a nice analysis of Viacom v. Google. The article leans heavily toward Viacom’s position.
This case tests the Title II of the Digital Millenium Copyright Act (DMCA), the Online Copyright Infringement Liability Limitation Act (OCILLA). OCILLA provides ISPs with a “safe harbor” from a copyright infringement suit provided the ISP follows the guidelines. In the current case, Viacom, a motion picture studio that has produced many popular films, has sued YouTube, an ISP that hosts user-posted video content, some of which is taken directly from Viacom’s movies. YouTube is using OCILLA to say it has no responsibility to Viacom after following the statutory guidelines.
The question is whether YouTube actually followed the safe harbor guidelines. To get to that answer, the case must determine just how much knowledge of infringement on the part of the ISP is too much knowledge. Should YouTube, sua sponte, have taken down the copyrighted materials even before Viacom complained to them about the infringement by YouTube users?
The two blog posts cited here give you the summary judgment motions of both parties
Me, I tend toward Viacom’s side in this one. The presence of what I know to be copyrighted materials on YouTube has always bugged me.
There’s a new patent infringement case in effect now. In SEB, S.A. v. Montgomery Ward & Co., Inc., the Federal Circuit held that the “knowledge-of-the-patent” requirement for proving inducement of patent infringement can be satisfied by a showing of “deliberate indifference” on the part of the accused infringer, such as when the accused infringer copies a patentee’s product and fails to inform its patent attorney of that fact when obtaining a “right to use” opinion.