The US Patent & Trademark Office is updating its systems, claiming that the update will streamline the user’s experience for filing, prosecuting and maintaining patents. You can learn more and sign up to virtually or physically attend their information session (to be held on 5 November 2015, 2-4 Eastern time) here.
Author: Delain Law Office
Back to the Future
As any geek knows, 21 October 2015 is Back to the Future Day.
In celebration thereof, I present to you on this 21 October 2015 a patent for the most oh-so-desirable device ripped straight from the movie franchise: a magnetic hover-board!
It’s not a flying car, but it gets you there.
Alzheimer’s
My mother died in January of this year; she had been diagnosed with Alzheimer’s about a year before she went. Pneumonia took her while she still remembered me and still had many of her long-term memories intact; I thank goodness that she was spared the living hell that she would have gone through with the total degeneration of her once-active mind.
Her diagnosis, of course, got me interested in this horrible condition. In the course of my research, I came across an HBO special on the progress of the disease. It’s beautifully done, which is why I post it here.
Another resource that I found very useful was a novel entitled Still Alice by Lisa Genovia. This was made into a movie starring Julianne Moore in her first Oscar performance.
Google Books Is Protected by the Fair Use Doctrine
The US Court of Appeals for the Second Circuit has handed down the ruling that the Google Books project does not infringe the authors’ copyrights in their various works. Under Author’s Guild v. Google. Inc., docket no. 13-4829-cv, the Google Book project falls under the fair use doctrine.
The fair use doctrine is about the grayest of all gray areas of law. The idea behind it, of course, is that there are uses for which no permission from the copyright holder is needed to use the copyrighted work. 17 USC 107 lays out the groundwork for the fair use analysis. The work can be used without infringement for purposes “…such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” The statue also lays out the four factors that come into play when analyzing whether a use is fair use or not:
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.”
No one factor is determinative; the results of the factors are looked at as a whole, then the judge is required to make a decision based on that analysis of the four factors taken together. This makes fair use an incredibly case-specific determination. There is no really good way to tell beforehand whether a particular use is fair use or not.
Evidently, Google Books’ use of many, many copyrighted works is fair use. I wonder whether this decision might be motivated in part by the sheer volume of copyright infringement suits that could be brought against Google if the decision had come down differently? Sometimes, federal judges can be pragmatic; the volume of copyright infringement suits that could hit the courts might indeed flood the court system since Google Books uses snippets from most published works of authorship. This influx of copyright infringement cases would interfere with other matters and completely clog the courts.
“Happy Birthday To You” Is Apparently Public Domain
For years now, we have labored under the impression that a valid copyright exists on “Happy Birthday To You.” Evidently, that copyright’s validity is … um … questionable.
It’s not often that a big, dramatic revelation happens in a court case, but in Good Morning to You Productions Corp. et al. v. Warner/Chappell Music, Inc. et al., currently before the US District Court for the Central District of California, a new piece of evidence has just turned up that turns the copyright on “Happy Birthday” on its ear. Evidently, “Happy Birthday” is a derivative of a song called “Good Morning to You,” which was published under the 1909 Copyright Act — without notice of copyright. Today, notice means little in the world of copyright, but under the 1909 Act, notice was everything. If notice of the copyright wasn’t published with the work, the copyright in the work was void.
Interestingly, the important subtitle on the song’s manuscript was blurred in the version given by Warner/Chappell to Good Morning to You Productions as a document produced in discovery (late, I might add). That made people curious. With some good document analysis, the truth came out: the work was published without notice and therefore without copyright.
This case is still ongoing at Docket #2013-CV-04460; no court has actually invalidated the copyright on “Happy Birthday To You,” but I don’t think we need to wait too long for the Central District of California to enter judgment on behalf of Good Morning to You Productions, voiding the copyright. We will soon be able to sing “Happy Birthday” without worrying about paying a royalty.
USPTO Has Trained Its Examiners in a “Plain Meaning of Terms” Initiative
The USPTO has updated the training it gives its patent examiners this spring to clarify the terms used in the prosecution of a patent. The guidelines explain that “the PTAB and courts will be informed as to what the examiner and the applicant understood the claims to mean.” The goal of the new initiative is to provide “a clear file history [to] prevent or reduce unnecessary litigation, interferences, reissues, ex parte reexaminations, inter partes reviews, supplemental examinations, and post-grant proceedings.”
Under MPEP § 2111, “During patent examination, the pending claims must be “given their broadest reasonable interpretation consistent with the specification.” ” Because the applicant can amend the claims during prosecution, giving a claim its broadest reasonable interpretation reduces the possibility that the courts, the patentee, or others may interpret it more broadly than is justified. However, “[t]he broadest reasonable interpretation of the claims must … be consistent with the interpretation that those skilled in the art would reach.”
Against that backdrop, we have MPEP 2111.01, which tells us that “Under a broadest reasonable interpretation, words of the claim must be given their plain meaning, unless such meaning is inconsistent with the specification. The plain meaning of a term means the ordinary and customary meaning given to the term by those of ordinary skill in the art at the time of the invention. The ordinary and customary meaning of a term may be evidenced by a variety of sources, including the words of the claims themselves, the specification, drawings, and prior art. However, the best source for determining the meaning of a claim term is the specification – the greatest clarity is obtained when the specification serves as a glossary for the claim terms. The presumption that a term is given its ordinary and customary meaning may be rebutted by the applicant by clearly setting forth a different definition of the term in the specification.” Thus, the plain meaning of any term may be redefined by the patentee within the four corners of the patent application, and the examiner must interpret the term as that term is interpreted by the patentee.
Including a glossary in your application is good practice that patent applicants often fail to do. By including a glossary in your application as part of the specification, you become your own lexicographer and define terms, even terms whose plain meaning is otherwise clear, in the way in which you want those terms to be interpreted by the USPTO and by the courts.
A “broadest reasonable interpretation” may be limited under 35 USC 112(f), which states, “Element in Claim for a Combination.— An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.”
The plain-meaning vs. means-plus-function claim interpretation is only one of the reasons why you don’t want to write a patent application yourself.
Changes Coming for Copyright…
This year’s two-year Congressional House Judiciary Committee’s review of copyright “focused on music licensing, discussing recently introduced legislation that has the backing of the music industry. One proposal, the Fair Play, Fair Pay Act, would establish a performance right and also require all radio formats to pay royalties for the performance of pre-1972 recordings.”
These changes to copyright are, for obvious reasons, supported by the musicians and recording artists. Royalties for playing their pre-1972 songs on the radio, in all radio formats no less, are a really good thing for them in that the royalties add additional income to the songwriter’s purse, enabling them to have at least a larger subsistence. It might even enable some of them to leave their day jobs to write music full time, which would add bounty to the music of the culture for which they write.
But wait. Let’s look at the radio stations for a minute. Radio is still a viable medium, but the radio industry has changed from the FCC-recognized model of the station and the broadcast tower and the receiver to the internet. There are literally thousands of shows run by people who want to do a radio show for whatever reason; some of those shows are talk shows, and some are music shows, and some are just junk. I worry about the music shows that play the oldies under this new law. These folks do not, as a general rule, follow the intricacies of the changes to copyright law, and, without proper publication and warning about this new royalty requirement, they could be caught in a vise from which they do not have the means to escape. I can see coming down the pike a reenactment of the RIAA vs. Music Downloaders huge number of cases of the early 2000s. That didn’t work well then; I see no reason why it would work better today.
Don’t get me wrong. I support this addition to the Copyright Act. I want to see songwriters get paid fairly for their contributions to the world, and I think that pre-1972 music should be compensated just as much as post-1972 music. However, I support the addition with the proviso that the public be thoroughly and completely noticed using communication means that they simply cannot miss getting something through even the foggiest radar about this new law. I want to see and hear discussion of this new copyright provision on the news, in the newspapers, on the radio, on PSAs, and all over Facebook and Twitter, and I want to see multiple iterations of the warnings that this new law can, and probably will, cause liability for a careless radio show host for a large bundle of preventable judgment money and attorneys’ costs. This new liability will be in effect even for a fly-by-night internet radio show host. These are the folks who stand to lose the most and who therefore need to see the warning of the effect of this new addendum to the Copyright Act.
Viewing Veins
My daughter has “rolling” veins. Honestly, whenever she has an venous puncture, the needle pokes and tears her surrounding tissues, searching for a vein. Only the most skilled phlebotomists (and one absolutely amazing nurse) can find her veins on the first try.
Enter a cool new invention (wish I’d written the patent for it). A “vein viewer” gives the practitioner an HD view of the veins in a person’s appendage. The vein viewer uses near-infrared light to locate the hemoglobin in the blood in the veins and project an image of the veins on the person’s skin, making finding the vein on the first poke much, much easier.
Is that cool or what?
USPTO Assignment Database How-To Webinar Announcement
From the US Patent & Trademark Office (“USPTO”):
“The USPTO is pleased to announce a webinar on Thursday, January 22, 2015 from noon to 1 pm Eastern Time about how to locate ownership information for U.S. patents and patent applications in the USPTO’s newly revamped Assignment Database. The webinar is free and will include ample time for Q&As.
The USPTO Assignment Database houses ownership information for U.S. patents and patent applications voluntarily submitted by owners over the past 35 years. The USPTO recently changed the user interface for this database to make it easier to use as well as to include enhanced search functionalities. At the webinar, the USPTO will showcase how to harness these new search functionalities to locate ownership information by working through a number of example fact patterns.
Attend the webinar to learn how the Assignment Database can help you tackle the often difficult ownership search using an improved USPTO tool!
WEBINAR ACCESS INFORMATION:
Video
Event number: 647 626 273
Event password: 12345