Despite overruling the Federal Circuit’s prior practice of reviewing all aspects of patent claim construction de novo, the Supreme Court’s ruling in Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. has not dramatically changed the standard of review for patent claims. Instead, it imparts a sub-category of analysis in cases where the district court relies upon extrinsic evidence to clarify ambiguous or complicated facts needed for proper claim construction. The court first considers whether the district court relied upon extrinsic evidence and if so, whether it needed to in order to properly construe the claim. As predicted by the Supreme Court, only a small number of cases have required clear error review of fact finding in the months following the Teva decision. Ultimately, clear error review of fact-finding from extrinsic evidence simply adds one step prior to the traditional de novo review applied to patent claim construction. Continue reading “SCOTUS Teva Ruling: Big Splash with Little Impact”
Last week, the Ninth Circuit Court of Appeals handed down its decision in Multi Time Machine, Inc. v. Amazon.com, Inc.. Although the case doesn’t deal with time travel like the name might suggest (so disappointing!), the Court’s decision on whether the behemoth online retailer’s search results could have violated the watch manufacturer’s trademark certainly is interesting. In a two to one decision, the panel of three judges decided that Amazon might have violated Multi Time Machine’s (“MTM”) trademark by displaying competitors’ watches when online customers searched for a particular MTM model.
So how is this interesting? Let’s paint this case in the terms used by Judge Silverman in his dissent against the other two judges—If a patron walks into a restaurant and orders a “coke” and the waiter responds, “We carry Pepsi,” has the restaurant infringed on Coca Cola’s trademark? The majority’s decision suggests that the restaurant might have infringed, but that it is a question for a jury. Similar to the restaurant’s actions, Amazon, who is unable to carry MTM watches, displays the similar products of MTM’s competitors when the customer searched for MTM watches.
It seems absurd that Amazon could be liable for simply responding to requests for an unavailable product by suggesting other similar products. However, things get a bit more murky when you consider the root question that results in liability for this type of trademark infringement: could a reasonable person be initially confused by the search results and believe that the watches displayed on Amazon’s page were somehow affiliated with MTM? If so, then customers might consider buying the competitors’ watches based on the reputation of MTM’s trademark, and both Amazon and the competitor would unfairly profit from MTM’s hard work in building a well-respected business.
So, how might Amazon’s search results confuse a customer? Well, in this author’s opinion, only by being a pretty thick dunce. The law requires that the results be confusing to a “reasonably prudent consumer,” and in my book, the poor dunce who gets confused by these search results doesn’t quite make the cut. Like the district court that first considered the case and Judge Silverman (who dissented from the majority’s opinion), I believe that the results are so clearly labelled that no reasonable mind would think that they were somehow affiliated with or originated from MTM. But you don’t have to take my word for it. You can check out the image in the thumbnail above or click here to see for yourself.
The majority opinion reaches a different opinion by determining that the text “MTM special ops” which remains displayed in the search box at the top is sufficient to confuse customers about who manufactured the products. The majority explained in its opinion that, although the displayed results were each clearly labeled as the product of a different company, the clarity of the page’s layout as a whole created a legitimate question of whether or not it might confuse a customer about the origins/maker of the displayed products.
As an additional note that online retailers should consider taking to heart, the majority said when reaching its conclusion, “A jury could infer that the labeling of the search results, and Amazon’s failure to notify customers that it does not have results that match MTM’s mark, give rise to initial interest confusion.” If an online retailer wants to avoid this whole debacle, the cleanest method would be to spell it out when none of the products it provides meet the exact product description typed into the search bar.
Background: Since its founding, Under Armour has maintained a dual-class stock structure consisting of Class A Stock, which has been entitled to one vote per share, and Class B Stock, which has been entitled to ten votes per share. Founder and CEO, Kevin Plank, beneficially owns all of the company’s Class B Stock and also owned a small portion of the Class A Stock. As of June, this provided Mr. Plank with 65.5% of the company’s total voting power, but only 16.6% of the total number of outstanding shares. Under the terms of Under Armour’s charter, if the aggregate number of shares of Class A Stock and Class B Stock owned by Mr. Plank is less than 15% of the total number of shares, the dual-class structure will unwind and all Class B Stock would be automatically converted in to Class A stock. This would result in Mr. Plank effectively losing control of Under Armour.
In November 2014, Mr. Plank reviewed his current ownership of Class B Stock with Under Armour’s Board of Directors and requested that the Board evaluate the creation and issuance of a class of non-voting common stock. The Board authorized a Special Committee to consider such a class of non-voting common stock, and to evaluate and make a recommendation to the Board as to whether and on what terms to proceed. The Special Committee recognized that the Company has been well-served by allowing Mr. Plank and management to focus on long-term value creation without distraction. Accordingly, the Special Committee informed Mr. Plank that it would recommend the creation of a Class C Stock and a Class C Dividend. The Dividend would distribute one new share of the non-voting stock for every existing share of Class A and Class B stock. This would allow shareholders to sell the Class C stock without losing any of their voting power. Continue reading “Stock Split and the Failure of a Shareholder Democracy”
Some believe the US patent system is being used to curb innovation, handicap inventors and drain corporate resources in lengthy litigation that cripples competition rather than being used to drive innovation. Many US legislators believe that patent ‘trolls,’ the non-practicing entities that purchase patents and pursue infringement litigation, threaten America’s economy and ability to innovate. In response to the patent trolls, Representative Bob Goodlatte (R-VA), along with 27 cosponsors, introduced the anti-troll legislation, H.R. 9 – Innovation Act in February, 2015.
However, the US Congress is not the only entity that wishes to solve the problems within the patent system. On April 27, 2015, Google announced the ‘Patent Purchase Promotion,’ an experimental marketplace inviting owners to directly sell their patents. Google stated that bad things such as lawsuits and wasted efforts happen when smaller participants sometimes end up working with patent trolls. Therefore, the Patent Purchase Promotion is Google’s attempt to “remove friction from the patent market” and “help improve the patent landscape and make the patent system work better for everyone.” The Patent Opportunity Submission Portal opened from May 8 – 22, 2015 for patent holders to submit information to Google about the patents they wanted to sell and at what price. Continue reading “Will Google’s Patent Purchase Promotion Foster Innovation?”
In March, the Securities and Exchange Commission (SEC) approved final rules of Title IV of the JOBS Act, changing Regulation A into “Regulation A+.” Entrepreneurs selling securities to private investors are no longer limited to using Regulation D or the old Regulation A. Entrepreneurs can now crowdfund their startup online through a “mini IPO.” Many believe these new rules show that the government has embraced technological changes. Some are optimistic about what they see as an opening of the crowdfunding floodgates, but the rules’ restrictions and requirements suggest such sweeping optimism may be misplaced. Continue reading “Go Fund Yourself: The SEC finalizes Regulation A+”
On May 18, a group of researchers published an article describing a method for the conversion of simple sugar to opioids including morphine. Proponents believe this could change the way many useful drugs are manufactured, while others are calling for regulation that limits access to the required DNA. The process is not currently feasible outside of a laboratory, but commentators worry that refinement of the technique could lead to people creating morphine with the same equipment used to craft home brewed beer. Such a streamlined process could be developed within a year.
Morphine and other opioids are historically produced from the poppy plant. The cultivation of the crop is common in Latin America, as well as Southwest and Southeast Asia. Farmers in countries with weak drug enforcement, such as Afghanistan, Myanmar, and Mexico, supply the crop to drug cartels, who smuggle and distribute heroin throughout the world. In Afghanistan, which produces much of the world’s heroin, the value of trafficking of opium is estimated to be $8 billion dollars a year. The wide spread use of this new process could disrupt these established supply routes.
The DEA does not presently consider the development to be “an imminent threat.” However, commentators, such as Kenneth A. Oye, have voiced concerns over the implications of this new process. He is particularly concerned with the reaction of drug cartels. These cartels could adopt the technology and manufacture heroin domestically, without the need to smuggle drugs across borders. The loss of exclusive control over the supply could also lead to a violent reaction as it has in other drug markets; Mexican gangs have taken over farms growing marijuana in the United States. Moreover, the capacity to create the opioids could lead to widespread domestic manufacture, as in the case of methamphetamine, resulting in increased availability.
Heroin is extremely dangerous and addictive. According to a 2014 DEA report, both use and availability are actually on the rise in the United States. In recent years, heroin and opioid abuse have ravaged regions of the country, particularly the Northeast. In 2014 in Connecticut alone, there were around 500 deaths involving overdoses of heroin and other opioids. Widespread availability resulting from the new process could exacerbate these trends.
Yet proponents of the process think these concerns are overblown. Christina D. Smolke believes that the required skills for this sort of manufacture are beyond those without training. Furthermore, Robert H. Carlson argues that these prohibitions would simply fail to work, just as Prohibition failed to abolish illegal alcohol manufacture. This may be a practical reality, but the consequences of wide spread heroin availability are a far more dangerous proposition that may warrant tight control of this process.
Image Source: http://7-themes.com/6921476-red-poppies-field.html.
Medical device robots present a number of cybersecurity, privacy, and safety challenges that regulation and industry standards must address in order to safely and rapidly advance innovation in the field.
The University of Washington’s Computer Science Department recently highlighted the problem. Computer Science Researchers hacked a teleoperated surgical robot called the Raven II during a mock surgery. The hack involved moving pegs on a pegboard, launching a denial-of-service attack that stopped the robot, and making it impossible for a surgeon to remotely operate. The researchers maliciously controlled a wide range of the Raven II’s functions and overrode command inputs from the surgeon. The researchers designed the test to show how a malicious attack could easily hijack the operations of a medical device robot. The researchers concluded that established and readily available security mechanisms, like encryption and authentication, could have prevented some of these attacks. Continue reading “Securing Dr. Robot”
We love them, or we hate them. Either way, we see them everywhere. I am referring to the one and only Kardashian family. Every month, members of the Kardashian-Jenner family are in the news for one reason or another. In May, Kris Jenner, the Kardashian matriarch filed legal documents to trademark the word “momager”. According to the Urban Dictionary, a “momager” is a manager that is your mom. Kris Jenner hopes to trademark the word in order to launch a new business platform and lifestyle brand to empower moms.
Kris Jenner would not be the first to capitalize on her celebrity status. Football player Tim Tebow successfully trademarked “Tebowing”, Paris Hilton trademarked the catchphrase “That’s hot”, and basketball player Anthony Davis trademarked “fear the brow” and “raise the brow”. In fact, this is not even the first time a member of the Kardashian-Jenner family registered a trademark. Earlier in May, Kylie and Kendall Jenner filed to trademark their names. Celebrities often seek trademark protection to protect their likeness and to prevent marketing that may dilute their image. However, Kris Jenner is attempting to trademark a new, hybrid word as opposed to her personal name. Continue reading “Can Kris Jenner Trademark “Momager”?”
The courts are redefining the hot topic of privacy law in today’s digital age. The most recent ruling, American Civil Liberties Union v. Clapper, came in the wake of a series of disclosures by Edward Snowden, a former National Security Agency (NSA) contractor. The Guardian revealed that the NSA had asked the Foreign Intelligence Surveillance Court to order Verizon to produce the telephone metadata for many of its subscribers. This order covered three months of information and included the numbers of both parties on a call, along with the location, time, and duration of the call. The Patriot Act classifies the contents as metadata, and the NSA can obtain the metadata without a warrant. The NSA network secured the telephone metadata indefinitely for its investigations.
The NSA Bulk Metadata Collection Program began shortly after the September 11th terrorist attacks. Section 215 of the Patriot Act permits the government “to make an application for an order requiring the production of any tangible things…for an investigation to obtain foreign intelligence information not concerning a US person or to protect against international terrorism….” The ACLU sought a preliminary injunction against the Government claiming that the bulk metadata collection program violates consumers’ First and Fourth Amendment rights. In response, the Government argued that bulk collection qualifies as business records and therefore falls within the ambit of Section 215 of the Patriot Act. Continue reading “Will Congress Allow Consumers More Privacy?”
The American Civil Liberties Union’s (ACLU) Oregon chapter and four other state chapters offer a smartphone app called Mobile Justice, which allows users to easily record interactions with the police. In addition to recording and transmitting footage, the app has a “Witness” button that sends out a user’s location to alert other Mobile Justice users in the area when they have been approached by the police. Once other Mobile Justice users have a user’s location, they can find that user and record their interaction with the police.
While this sort of Sousveillance activity is not unheard of—indeed, there are other apps that provide smartphone users with similar features—there are some serious concerns about these apps. Perhaps the most obvious concern is that a police officer may think that a user pulling out their phone to record is reaching for a weapon. In response to this concern, the ACLU of Oregon’s website for Mobile Justice has a portion of the page warning users on how to safely use the app. Continue reading ““Mobile Justice”? or Risky Vigilante Journalism?”