America Invents Act Presentation
I can’t do a better job of dissecting this complex new patent legislation, the first overhaul of the patent code since the early 1950s, than does Professor Jeff Hawley, who teaches at my alma mater, the former Franklin Pierce Law Center (now University of New Hampshire School of Law). His video and presentation slides are definitely worth a look.
This is the first major overhaul of the patent system since 1952, and major it is. Here’s a line-up of some of the changes that the new law puts into effect.
The Biggie: Today, the patent system in the USA is a so-called “first-to-invent” system; an inventor who wants to prove that they invented something first can easily force another party into a protracted legal battle. However, the first-to-file system put into place by the America Invents Act would make things much clearer. In its most general terms, if you filed for the patent first, you get the protection.
Post-Grant Review: The Act creates a new process by which to challenge a patent within nine months of its issuance by presenting evidence directly to the Patent and Trademark Office itself, which will review the merits of the argument.
Fee Collections: The Patent Office can now set its own fees rather than relying on Congress to set reasonable fees for it. Congress will continue to have some budgetary power, but fees collected above the Patent Office’s budget will be placed into escrow, and the Patent Office can petition for their release. Fees will go up for some filers, but small entities may very well see fee reductions.
The bill does NOT include any new process for determining damages included in the America Invents Act. Jury awards for patent violations may continue to be huge for the foreseeable future.
The America Invents Act does little to clear up the controversy surrounding whether a “business method” patent or a software patent is a reasonable thing. There are provisions that may come very close to excluding software dealing with taxes from being patentable, for example.
Star Trek influences many aspects of our society; flip phones, for example, came from Captain Kirk’s flippy communicator. Now, it seems, the Romulans are getting in on the 21st Century act. A Swedish company, BAE Systems, has conjured up a cloaking device. See Bae Systems’ cloaking device.
I love it when sci fi isn’t so fi anymore.
Suppose you run an internet site that accepts postings from users. Suppose some of those postings are pretty good. Users voluntarily and without payment post to your website.
Who owns the postings?
The answer to this question depends on the Terms of Use on your website and how users access your site.
The author of the posting owns the original copyright in his or her posting. For the website owner to obtain copyright in the author’s posting, there needs to be a written transfer of copyright interest, which can be done with a “click-through” contract for users to access the posting capabilities of the website. It has to be worded correctly, though; this is not a do-it-yourself opportunity. You need your copyright lawyer to draft this clause for you.
Creating the click-through contract does NOT give copyright to the website owner for materials posted before the website requires the click-through contract to access the web posting capability transfers copyright. For those postings, if the website owner wants copyright ownership, the website owner must obtain and register with the US Copyright Office a signed document transferring copyright from the original author of the post.
If the postings can be published as a “collection,” then the website owner may — MAY — own the copyright in the collection, depending on several factors.
Factoid: The USPTO has issued millions of patents. Number 8,000,000 will issue in 2011.
The USA is a very, very inventive country. At 8,000,000 patents in just under 200 years, we’ve come a long way since the verdict was issued that “everything that can be invented has already been invented.” We’ll keep on inventing … and inventing … and inventing. That’s how progress is made.
You need to know this.
If you own any IP, what is your threshold for litigation? Rest assured, even the smallest businesses get involved with IP litigation, then find they can’t afford it because their general business liability policies don’t cover it. There is no need for you to be on your own in the IP courtroom; IP insurance can be a cost-effective way to handle the ever-rising costs associated with litigation of your IP rights.
I don’t endorse any particular carrier, but I found these videos on YouTube; they contain a good overall discussion of why you should carry IP insurance and of how IP insurance works.
IP Enforcement Insurance
IP Defense Insurance
This time, it’s the current patent law that is coming under legislative scrutiny. Sen. Patrick Leahy (D-VT) says they’ll introduce the legislation next week.
I don’t know yet what I think of this bill. I don’t think I like the idea that damages are limited in patent infringement cases; patent infringement should hit the infringer hard in the wallet. However, I sit on the fence when I see huge awards coming out of tiny infringements. The courts need to exercise a little bit of common sense: tiny infringement should mean tiny award; big infringement should mean big infringement. If juries bring back huge awards for tiny infringements, maybe it’s time for the judge to set aside the award and make an award that is more in line with the size of the infringement.
That’s just my opinion.
Our thoughts and prayers are with the Tucson victims and their families as we watch the tragedy of the shooting aftermath unfold.
Hospital Update on Tucson Shooting
They just unveiled their new logo. See the Yahoo! story.
Companies update their logos from time to time, and the changes, as long as they don’t completely change the logo, are considered to be part of the continuous use of the logo. For example, the little girl carrying the spilling salt on the Morton Salt container has undergone wardrobe and hairstyle changes from her debut appearance in the early part of the 20th Century. Even with the changes, the mark is deemed to have been in continuous use since the spilling salt’s introduction.
Starbucks is following suit; they have modified their logo four times in the last 40 years, yet their logo is deemed to have been in continuous use.