• Petra Moser and Copyright Empirics

    I thought this short Twitter thread was such a helpful, concise summary of some of NYU economist Petra Moser’s excellent work—and the incentive/access tradeoff of IP laws—that it was worth memorializing in a blog post. You can read more about Moser’s work on her website.

    The US canceled German book copyrights during WWII and scientific output rose as a result. https://t.co/f9diKqKAOu pic.twitter.com/B4Fbw4Qeck

    — Matthew Yglesias (@mattyglesias) September 1, 2017

    Napoleon brought copyright to Italy, and opera writing increased. https://t.co/FtnSI4EKk7 Life is complicated; @PMoserEcon does great work.

    — Jeremy Sheff (@jnsheff) September 1, 2017

    Two opposing forces of copyrights 1) Basic levels of protection encourage creativity (that’s Napoleon in Italy)

    — Petra Moser (@PMoserEcon) September 2, 2017

    2) Copyrights restrict access and increase price https://t.co/nuYfq2LhC1, and…

    — Petra Moser (@PMoserEcon) September 2, 2017

    …higher prices make it harder to access existing research, esp at poor institutions, and there’s less new science (that’s WWI books).

    — Petra Moser (@PMoserEcon) September 2, 2017

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  • FORMATION 形成・構造


    FORMATION 形成・構造

    $$ Typically, the formation of the channels 713 is performed before bending the sheet. / 典型的には、通路713の形…

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  • En Banc: Construing Claims

    by Dennis Crouch Over the past several of years, the court has appeared to be increasingly divided on the question of when a district court (or PTAB judge) must offer an express construction of beyond simply assigning a claim its “plain and ordinary meaning” without further definition.  In NobelBiz v. Global Connect, the Federal Circuit […]

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  • Mickey: You think you’ve got the right but I think you’ve got it wrong

    There is no mention of copyright in the yahoo news post about a lawsuit by Toni Basil:

    Toni Basil, the one-hit wonder behind “Mickey,” filed suit in L.A. Superior Court on Thursday (Aug 31) alleging that the song has been used without her permission for decades.

    According to the suit, Basil recently became aware that the song was used in an episode of “South Park,” in a Forever 21 ad, and on an episode of “RuPaul’s Drag Race.” She was particularly offended that the Forever 21 campaign was in support of a line of Disney products, associating her song with Mickey Mouse.

    “Basil was never consulted and would never consent to the use of her voice, persona, image, or name coupled with Disney products,” the suit states.

    Since finding that her song was misused, Basil has become “withdrawn, despondent, and physically ill,” the suit alleges, and has experienced “sleep deprivation, nightmares, and anxiety.”

    link: https://www.yahoo.com/celebrity/toni-basil-claims-mickey-used-without-her-permission-015823717.html

    The Guardian points out:

    Basil was 39 at the time of release (1982)

    Mickey is already a cover version of “Kitty”, a 1979 song by a band called Racey from Weston-super-Mare.

    link: https://www.theguardian.com/music/shortcuts/2017/sep/01/pay-mickey-why-toni-basil-is-suing-almost-everyone

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  • Texas’ Patent Agent Privilege case

    The oral argument for the Texas-patent-agent-privilege case is set for November 9, 2017 in front of the Texas Supreme Court.  Some of the briefs are available below.  See David Hricik’s post and brief below for more info. [Link]



    Event Type

    Amicus Curiae Letter Received
    Received (instead of filed)
    Amicus Letter of American Intellectual Property Law Association. Submitted by […]

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  • USPTO declaring postal emergency due to Hurricane Harvey

    The USPTO is in the process of publishing a notice designating the interruption in service of the United States Postal Service (USPS) in the areas affected by Hurricane Harvey in Texas and Louisiana, beginning on Friday, August 25, 2017, as a postal service interruption and emergency within the meaning of 35 U.S.C. § 21(a).

    The post USPTO declaring postal emergency due to Hurricane Harvey appeared first on IPWatchdog.com | Patents & Patent Law.

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  • CARDIAQ largely prevails at CAFC

    The case is about a joint venture gone bad:

    The joint work ended after about one year, but
    during that year, Neovasc secretly launched its own TMVI
    project. Neovasc eventually secured a patent on its
    TMVI, U.S. Patent No. 8,579,964, without naming anyone
    from CardiAQ as co-inventors.


    In May 2009, shortly after the collaboration ended,
    Neovasc filed a provisional patent application that ultimately
    issued as the ’964 patent, which describes and
    claims a TMVI with many of the same features as CardiAQ’s
    design. Neovasc plans to market its device under
    the brand name “Tiara.”1 CardiAQ discovered that Neovasc
    was developing its own device in December 2011,
    when Neovasc’s patent application was published
    . The
    ’964 patent issued in November 2013. CardiAQ brought
    this suit against Neovasc in June 2014, seeking correction
    of inventorship under 35 U.S.C. § 256 and damages and
    injunctive relief for, among other things, misappropriation
    of trade secrets and breach of the non-disclosure

    The outcome at the CAFC:

    The district court held that CardiAQ had also shown by
    clear and convincing evidence that its employees were
    entitled to be named as co-inventors on the ’964 patent.
    Id. at *15–19. The court denied CardiAQ’s motion for
    injunctive relief in part; specifically, it refused to require
    Neovasc to suspend its TMVI project for eighteen months.
    Id. at *7–10. On Neovasc’s appeal as to inventorship,
    misappropriation, and damages, and CardiAQ’s crossappeal
    as to the denied injunctive relief, we agree with
    the district court’s well-reasoned decisions and affirm.

    Of the law

    To prevail under 35 U.S.C. § 256, the plaintiff
    must show, by clear and convincing evidence, that the
    unnamed but alleged co-inventor made a contribution to
    the conception of at least one claim of the patent “that is
    not insignificant in quality, when that contribution is
    measured against the dimension of the full invention.”
    Acromed Corp. v. Sofamor Danek Grp., Inc., 253 F.3d
    1371, 1379 (Fed. Cir. 2001) (quoting Pannu v. Iolab Corp.,
    155 F.3d 1344, 1351 (Fed. Cir. 1998)). It is not enough
    under that standard if the alleged co-inventor “merely
    explain[ed] to the real inventors well-known concepts
    and/or the current state of the art.” Id. (quoting Pannu,
    155 F.3d at 1351); see Ethicon, 135 F.3d at 1460. Here,
    the parties have not differentiated Dr. Quadri from Mr.
    Ratz in the co-inventorship dispute, and they have fo-
    cused on claim 1, the only independent claim of Neovasc’s
    The jury in this case, having been asked to make an
    advisory factual determination, found that Dr. Quadri
    and Mr. Ratz contributed to the conception of the ’964

    The Ewen appears:

    Caterpillar Inc. v. Sturman Indus., Inc., 387 F.3d 1358, 1377 (Fed. Cir.
    2004) (“[A] person will not be a co-inventor if he or she
    does no more than explain to the real inventors concepts
    that are well known [in] the current state of the art.”
    (second alteration in original) (emphasis added) (quoting
    Fina Oil & Chem. Co. v. Ewen, 123 F.3d 1466, 1473 (Fed.
    Cir. 1997));

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  • Of bloggers, 47 USC 230(c)(2), and failure to file briefs

    Eric Goldman’s post Blogger Isn’t Liable for Anonymous Comments–Griffith v. Wall discussed 47 USC 230(c)(2).

    In the case before the Court of Appeals, Merlene Wall is the appellee (a public figure bringing a defamation case against a blogger), and Griffith is the blogger who failed to file a brief before the LAMAR COUNTY CIRCUIT COURT (and lost and has appealed to Court of Appeals, where he wins) . Thus, of interest in the case [ 2017 Miss. App. LEXIS 497 ] is the following:

    Whenever the appellee has failed to file a brief, a reviewing court is presented with two options: “The first ‘is to take the appellee[‘s] failure to file a brief as a confession of error and reverse.'” McGrew v. McGrew, 184 So. 3d 302, 306 (¶10) (Miss. Ct. App. 2015) (quoting Miller v. Pannell, 815 So. 2d 1117, 1119 (¶7) (Miss. 2002)). “This should be done when the record is complicated or voluminous, and the appellant has presented an apparent case of error.” Id. The second is to disregard the appellee’s failure to file a brief and affirm the [judgment].” Id. “This option is reserved for situations where there is a sound and unmistakable basis upon which the judgment may be safely affirmed.” Id. (internal quotations omitted).

    After reviewing the record, we find that the circuit court erred in taking Griffith’s failure to file a brief as a confession of error. First, we find that the record on appeal is neither complicated nor voluminous. And even if it were, we find that Wall—the appellant at the circuit court level—failed to present an apparent case of error. In fact, the record shows that in her brief to the circuit court, Wall relied solely on a federal statute in an attempt to somehow tie the anonymous comments made on Griffith’s blog to Griffith himself. The federal statute Wall relies on—titled “[p]rotection for private blocking and screening of offensive material”—states in part:

    No provider or user of an interactive computer service shall [*6] be held liable on account of . . . any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected . . . .
    47 U.S.C. § 230(c)(2)(A).


    Wall contends that this statute placed an obligation on Griffith to remove offending material published—by anonymous posters—on his blog. A quick glance at the statute’s text suggests otherwise. For one thing, HN2Go to this Headnote in the case.section 230(c)(1) explicitly protects a user of an interactive computer service from being “treated as the publisher or speaker of any information provided by another information content provider.”3 Indeed, nowhere in the text of either section 230(c)(1) or (c)(2)(A) does the statute place any obligation on a provider or a user to screen offensive material. What is more, the title of the statute clearly previews a statutory protection, not a mandate. By its very terms, the title denotes protection for private blocking and screening of offensive materials. One may chose to block or screen offensive material; he, however, is under no obligation to do so.

    The outcome was that Wall, as a public figure, lost:

    In her brief to the circuit court, and even before us, Wall’s only claim of error was based on the control of the anonymous comments. Wall did not, for example, claim that the county court erred in finding that she was a public figure, that it erred in determining that she failed to prove that Griffith’s post contained false statements of fact, or that it erred in finding that she failed to prove actual malice. Indeed, Wall’s only hope was to attempt to [*9] use an inapplicable federal statute as a vehicle to attach ownership of these anonymous comments to Griffith. The county court found that there was insufficient proof in the record to find that Griffith had control over the posting of anonymous comments in his blog—and was thus not responsible for their content. Wall’s use of the federal statute does not change that conclusion. With all this in mind, we find that the circuit court could have safely affirmed the judgment of the county court.

    In conclusion, we find that because the record was neither complicated nor voluminous, coupled with the fact that Wall failed to make out an apparent case of error, the circuit court should have affirmed the judgment of the county court—even though Griffith failed to file a brief. In reaching this end, it is not our intent to condone a litigant’s failure to file a brief. Nor do we encourage future litigants to approach the appellate process in a careless manner; for when a litigant does so, he does so at his own peril. Yet we find that in this specific case, with these specific facts, a case of error was not made. Therefore, we reverse and render the judgment of the circuit court. The judgment [*10] of the county court is reinstated.

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  • Federal Circuit Denies Rehearing En Banc on Apportionment of Lost Profits

    This morning the court issued an order in Mentor Graphics Corp. v. EVE-USA, Inc. denying a rehearing en banc.  (The original panel opinion, authored by Judge Moore and joined by Judges Lourie and Chen, is available here, and my blog post on it is available here.)  To cut to the chase, the original panel (correctly, in my view) affirmed a lost profits award based on evidence that the defendant’s infringement cost the defendant x amount of sales, without further apportioning the lost profits award (even though the patent in suit is only one of many embodied in the infringing device).   Appended to the order denying a rehearing en banc is a short concurring opinion by Judge Stoll (joined by Judges Newman, Moore, O’Malley, Reyna, and Wallach); a dissenting opinion by Judge Dyk (joined by Judge Hughes); and another concurring opinion by Judge Moore (joined by Judge Chen) on a separate issue (assignor estoppel).  I’m glad the court denied a rehearing, and won’t go into detail about why I think the court was correct (interested readers should simply consult my previous post on the matter), but I will note this one page from the dissent which in my view highlights the problem with the dissent’s argument (dissenting opinion, p.5):
    . . . even if “but for” a patented feature the item would not have been purchased, it could be equally true that but for an unpatented feature (or a feature covered by another patent) the item would not have been purchased. Apportionment between features covered by the asserted patents and other features makes eminent sense. The panel makes no such apportionment.

    Think about that for a minute:  suppose the infringing device has two components, A and B, and that only A is patented.  Patent owner similarly sells a device including those two components.  Suppose further that there’s no substitute for A; that the infringer sold ten devices; and that the evidence shows that, but for the infringement, the patent owner would have made those ten sales.  In my view the patent owner should recover its lost profit on those ten sales, even though the the device also contained the unpatented component B.  It’s true that people wouldn’t have bought the device absent this unpatented component too, but so what?  If the court were to award the patent owner, say, half its actual lost profit because the unpatented component contributed half the value of the device to consumers, this means that the owner would remain worse off as a result of the infringement, and the infringer potentially better off than if it  had not infringed.  Apportionment, in other words, would encourage infringement and would not restore the patent owner to its but-for position.  (Of course, if patents are unnecessary to stimulate invention, then this is a wonderful result for consumers:  we pay less and get more for our money.  But if that’s the case we may as well get rid of patents altogether rather than fiddling around with damages rules.)  Indeed, the economic logic seems so straightforward that I have a hard time understanding how anyone could dispute it, but so it goes.  Nonetheless, I respect Judges Dyk and Hughes, as well as Professor Bernard Chao, who in a recent article mounts a vigorous argument (albeit one with which I profoundly disagree) in support of the position reflected in the dissenting opinion.  See Bernard Chao, Lost Profits in a Multicomponent World, available on ssrn here.  Readers, judge for yourselves.      
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