Increasing wave of secret Internet communication

A new wave of apps are gaining popularity among young people.  Facebook has lost its caché as ones parents, and horror of horrors, even grandparents, are active members with posts appearing in young people's news feeds.  Twitter had became the anti-Facebook, with its short, 140 character tweets a way for young people to express themselves in short streams of consciousness.  Instead of personal profiles of likes, photos of life's milestone, relationships, high school and colleges, religion, hometown, residency etc., Tweeter allows one to just communicate brief ideas.  


However, the youth of the world finds even Twitter to be too constraining.  It forces you to identify yourself.  This leads to a whole host of concerns, including the need to watch what you say, and how you say it (including grammar and spelling) or suffer the scrutiny of your friends, "real" and virtual (online) ones.  Often young people feel that they cannot be themselves and have to conform to an image that others expect to see.


Secret or anonymous  apps such as Whisper , Secret and Backchat allow users to post messages completely anonymously.  Sounds innocent enough, right?  Well, maybe not so fast.  Truly anonymous messages could lead to defamation claims with no recourse against the defamer.  True, if the alleged defamer does not identify himself or herself, it is less likely that others will believe the anonymous defamer.  However, prior anonymous sources have been scrutinized when what is said is deemed to have caused harm.  For example, the Virginia Court of Appeals recently ruled that Yelp was recently required to turn over the name of a writer who posted a negative review of a carpet cleaner.  


Here comes technology to the rescue.  Secret enforces its terms of use and policy of maintaining civility, by removing "defamatory, offensive or mean-spirited messages against its 'community standards'."  Secret has built-in "intelligence" which identifies potentially defaming messages and warns users before the message is sent.

Other legal issues of truly anonymous messages include possible copyright and trademark infringement and divulging trade secrets.  Anonymous posts could include copyrighted content, trademark material and trade secrets in which the owners of their intellectual property may have no recourse against the infringer.

Finally, a word of caution to the "would be" "secret" messanger, the "terms and conditions" of these “anonymous” apps may state that the app provider will turn over records and personal information if ordered by a court or other governing body.

© Stephen J. Weyer 2014

Send email feedback- sweyer@stites.com

iPhone "dressed" in Blackberry's clothing? The 'keys' to understanding a 'case' for trade dress infringement

Never let it be said that the arguably geeky CES (ConsumerElectronics Show) does not have widespread appeal.  And what electronics rollout would be complete if there were not a little controversy.  Thank you, Blackberry, and start-up tech company, Typo, for saving the day in an otherwise boring 2014 CES show.  I mean, after the first demonstration of a 100+ inch curved-screen ultrahigh definition television, do I really need to see another?

Typo keyboard case

At the CES show, amiss the new TiVo devices and Roku® boxes, start-up company, Typo introduced its iPhone keyboard case which provides a "real" qwerty keyboard as an add-on to iPhone. (See picture to the right.)


Blackberry has filed a lawsuit in the Northern District of California, alleging, among other things, that the Typo iPhone keyboard case infringes Blackberry's “trade dress.”  Taking a page from the Apple vs. Samsung design patent infringement cases, Blackberry alleges that instead of developing its own keyboard design, Typo chose to copy BlackBerry’s innovative style and design, including the keyboard layout and the surface shaping of the keys.”

Blackberry

To prevail on an alleged trade dress infringement claim, Blackberry must prove that Blackberry's keyboard features in the Typo cases are (1) non-functional, (2) distinctive* (inherently or have acquired "secondary meaning") , and that (3) there is a likelihood of confusion between Blackberry and the Typo trade dress based on the (1) non-functional and (2) distinctive features.

In its complaint, Blackberry alleges that its keyboard has non-functional and distinctive features, present in the Typo cases to produce a likelihood of confusion between Blackberry and the Typo trade dress.

From the Blackberry Complaint the alleged infringed trade dress includes:

a keyboard product configuration with:

• a keyboard with an overall symmetrical design around the vertical center line, comprising several horizontal dividing bars above rows of sculpted keys, the last row of which is rounded on the bottom edge;

• several horizontal bars in contrasting color and finish set above the horizontal rows of keys;

• several top rows of roughly square shaped keys having little horizontal space between them;

• a bottom row of roughly rectangular shaped keys having curved bottoms edges and little horizontal space between them;

• keys with planar areas away from the vertical center line of the keyboard and sculpted curves closer to the center line;

• one larger rectangular key in the center of the bottom row having a u-shaped planar area; and

• keys having distinct lettering or graphical icons printed on the surface.

You be the judge...

Typo iPhone keyboard/case

Blackberry

Blackberry

Does the iPhone keyboard case have non-functional, distinctive features of the Blackberry keyboard or are the Blackberry identified features functional or common to other old school tackle keyboards from smartphones of yesteryear.  If the former, do the non-functional, distinctive features lead to a likelihood of confusion between the Blackberry trade dress and the Typo keyboard case's trade dress?

Mere similarity between the Blackberry keyboard and the Typo keyboard is not enough for trade dress infringement.  Typo is entitled to include non-functional, non-distinctive features of the Blackberry product.  And Typo can even include distinctive features of the Blackberry product to the extent that there is no likelihood of confusion between the trade dress of the Blackberry product and that the Typo product.

Take-home lesson:

Determining whether a case of trade dress infringement exists is not a simple task. Therefore, a prudent step when launching a new product is to seek legal counsel from an Intellectual Property attorney, especially if the new product is similar in function and design to that of a competitor's product.

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© Stephen J. Weyer 2014

Send email feedback- sweyer@stites.com

Top Ten OP-IP Blog Posts of 2013

As 2013 comes to a close, the mainstream media, partially in an effort to reflect on the past year and partially to fill a news void in the period between Christmas and New Year's, compile a year in review.  We are once again inundated with stories of Edward Snowden, the healthcare.gov website roll-out debacle, etc.  Here at OP-IP, we too, look back on the memorable blog posts of 2013.

In the tradition of Casey Casum once again enjoy the Top Ten OP-IP blog posts of 2013:

10.  Three Way Tie: The Patent Wars Trilogy:

a) A Midsummer Night's Dream or Nightmare?...The Current Patent System,
b) Possible Software Patent Wars Truce...A death blow for software patents?, and
c) Patent Wars: Episode III- Laissez-faire Strikes Back

9.  Kim + Kanye = Baby™

8.  Can you hear me now? Apple's EarPods accused of infringing Hearing aid company's HearPods

7.  Patenting... Real. Comfortable. Genes II ?  Judgment Day

6.  Are the Keebler Elves the Cookie Monster?

5.  Expanding markets and product line puts company "Over a Barrel"

4.  "Beware the Ides of March" or "Much ado about nothing!"

3.  Top ELEVEN Reasons for filing a U.S. Patent Application by March 15

2.  So God made a Farmer...Indiana planter allegedly runs afoul with Monsanto's patents

1.  Are You the Master of Your Domain?

Happy New Year 2014!

Visit full OP-IP Blog

© Stephen J. Weyer 2013

Send email feedback- sweyer@stites.com

Déjà vu all over again: Patentablity of computer implemented software

The U.S. Supreme Court will weigh in (again) on what constitutes patent eligible subject matter (under 35 U.S.C. § 101) when it hears the case of Alice Corp. v. CLS Bank. Like the movie, Groundhog Day, the U.S. Supreme Court will once again decide what "things" are patentable. 

Distilling down the issue in CLS, the Supreme court will decide whether a general purpose computer (think PC, Mac, or server) programmed to conduct financial transactions is eligible for patenting.  Claim 1 (below) is exemplary of the patent claims in suit.

1. A data processing system to enable the exchange

of an obligation between parties, the system

comprising:

            a data storage unit having stored therein information

about a shadow credit record and

shadow debit record for a party, independent

from a credit record and debit record maintained

by an exchange institution; and

            a computer, coupled to said data storage unit, that

is configured to:

(a) receive a transaction;

(b) electronically adjust said shadow credit

record and/or said shadow debit record in order

to effect an exchange obligation arising

from said transaction, allowing only those

transactions that do not result in a value of

said shadow debit record being less than a

value of said shadow credit record; and

(c) generate an instruction to said exchange

institution at the end of a period of time to adjust

said credit record and/or said debit record

in accordance with the adjustment of said

shadow credit record and/or said shadow debit

record, wherein said instruction being an irrevocable time invariant obligation placed on said exchange institution.

But we all (including the Supreme Court) have seen the exercise of determining patent subject matter eligibility before.  For example, Gottschalk v. Benson, 409 U.S. 63 (1972) (decimal to binary number converting programmed computer); Parker v. Flook, 437 U.S. 584 (updating an alarm); Diamond v. Dierh, 450 U.S. 175 (1981) (curing rubber) ; Bilski  v.Kappo, 130 S.Ct. 3218 (2010) (hedge fund business method); Mayo v. Prometheus, 566 U.S. ___ (2012) (correlating drug metabolism); and Association for Molecular Pathology v. Myriad Genetics, 569 U.S. ___ (2013) (isolated DNA).  So what is new here to decide?

The en bank Fed. Cir. (lower court decision that is the subject of the CLS appeal), found the above claim 1 ineligible for patenting (articulated in the plurality opinion as a machine/computer/apparatus that purportedly implements an abstract financial method and subsumes the entire general abstract idea).  This all sounds eerily familiar.  It echoes to the past as if from the ghost of Supreme Court Justice Douglas past (Douglas being the opinion writer in Benson finding that implementing a mathematical principle on a physical machine, e.g. a computer, is not a patentable application of that principle).

If I were to predict the outcome in CLS, based on the most recent S.Ct. patent cases, I would say that the Supremes will (1) find the CLS computer implementing financial transactions (apparatus/data system/"machine") claims are invalid under § 101 as being abstract (per se) as subsuming the general abstract financial transaction "idea", citing Benson, and the other aforementioned S.Ct. decisions above, and (2) find the Fed. Cir. plurality opinion regarding the specific framework and/or standard for analyzing an apparatus claim for § 101 patent subject matter eligibility (i.e. extraction of the general idea of a claim and then determine whether the idea is abstract and subsumes the general idea) is not valid.

Happy Christmas!

© Stephen J. Weyer 2013

Send email feedback- sweyer@stites.com

Patent Wars: Episode III- Laissez-faire Strikes Back

Patent Wars: Episode III- Laissez-faire Strikes Back

 (A Midsummer Night's Dream or Nightmare?, Act III)

Act I

Act II

Michele Boldrin and David K. Levine of the Federal Reserve Bank of St. Louis, Research Division, last fall published a "working paper" entitled, "The Case Against Patents."  These authors "make a case" that market forces (e.g. lead time/ being the first one to the market) and less government involvement are the keys to innovation and economic development, not a strong patent system.

The opening paragraph of the working paper states,

The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity, unless the latter is identified with the number of patents awarded– which, as evidence shows, has no correlation with measured productivity.  This is at the root of the “patent puzzle”: in spite of the enormous increase in the number of patents and in the strength of their legal protection we have neither seen a dramatic acceleration in the rate of technological progress nor a major increase in the levels of R & D expenditure...

...there is strong evidence, instead, that patents have many negative consequences. Both of these observations, the evidence in support of which has grown steadily over time, are consistent with theories of innovation that emphasize competition and first-mover advantage as the main drivers of innovation and directly contradict  Schumpeterian” theories postulating that government granted monopolies are crucial in order to provide incentives for innovation....

...The initial eruption of small and large innovations leading to the creation of a new industry – from chemicals to cars, from radio and TV to personal computers and investment banking – is seldom, if ever, born out of patent protection and is, instead, the fruits of highly competitive-cooperative environments. It is only after the initial stages of explosive innovation and rampant growth end that mature industries turn toward the legal protection of patents, usually because their internal grow potential diminishes and the industry structure become concentrated.

Are Boldrin and Levine correct?  Are patents more a hindrance to innovation and economic development than an aid?  Was Thomas Jefferson wrong when he drafted the U.S. Constitution, Article I, § 8, clause 8), giving Congress the power to "promote the useful arts" (i.e. inventions) "by securing for limited Times to ... Inventors the exclusive Right to their respective ... Discoveries?
Is it laissez-faire time?

© Stephen J. Weyer 2013

Send email feedback- sweyer@stites.com

Expanding markets and product line puts company "Over a Barrel"

Expanding markets and product line allegedly puts company "Over a Barrel"

 

 Update- The U.S. Court of Appeals for the Seventh Circuit upheld the  preliminary injunction barring use of the mark Cracker Barrel Old Country Store for use in connection with ham products to be sold in supermarkets





 

Original Post:

 

A district court judge has granted Kraft Food's request for a preliminary injunction against Cracker Barrel Old Country Store restaurant chain from selling its branded meats in grocery stores.  Kraft's request is based on its claim that there would be costumer confusion between its Cracker Barrel ® brand cheese and Cracker Barrel's meats.  For now, the expansion of Cracker Barrel Old Country Store meats into grocery stores has it "over a barrel."

Kraft federally registered its mark, CRACKER BARREL for cheese in 1957.  Twelve years later in 1969, Cracker Barrel Old Country Store started using its name/mark for restaurants and has subsequently obtained federal trademark registrations for its mark for restaurants and various food items.  For almost half a half century, these two companys' marks lived in harmony with each other, one for grocery store sold cheese and the other for restaurants.  What changed?  Cracker Barrel Old Country Store decided to expand its business from resturants to offering its meats in grocery stores.  Even though the food products are different (meat for Cracker Barrel Old Town Country Stores and cheese for Cracker Barrel ® Brand Cheese), the district court judge, in granting the prelimianry injunction at least found it plauable or likely that Kraft will prevail and that consumers will be confused between the two marks.

Lessons to be learned

What is the take home lesson?  If you have a mark (e.g. name) similar to another's, even if your products are different (cheese vs. meat), you may not be able to use your mark in new markets or for new products or services, if the other user has been using the mark longer and/or the other user has superior rights (e.g. a mark with strong consumer recognition (think McDonald's and now Kraft's Cracker Barrel)).  And, of course, choose your mark wisely and do your due diligence to discern whether there are other users of your proposed mark/name before you start using it.

© Stephen J. Weyer 2013

Send email feedback- sweyer@stites.com

Possible Software Patent Wars Truce...A death blow for software patents?

Software Patent Wars Truce...A death blow for software patents?

 (A Midsummer Night's Dream or Nightmare?, Act II)

Does the possible truce in the endless patent litigation between Apple and Samsung mark the end of the debate regarding the patenting of software?  As many of you know, Apple and Samsung have been waging war against each other for allegedly infringing each other's software patents.  For just two examples, Apple accuses Samsung of infringing its "bounce-back" feature and Samsung alleges Apple of infringing its 3G connectivity software. 

With the two warring factions about to stop enforcing their respective software patents against the other's largest competitor, the big question is whether we need software patents in the first place?

Would we be susceptible to carpal tunnel syndrome every time we make a purchase online, making a "second" or even a "third" click to check out our "virtual shopping cart" because Amazon.com would not have "invented" the patented "one-click" check-out method without the incentive of patent protection?

© Stephen J. Weyer 2013

Send email feedback- sweyer@stites.com