• Recording Industry Association of America Reports Revenues are Up in 2017

    The Recording Industry Association of America (RIAA) reportsthat revenues are up for a second year in a row.  The RIAA states that:

    In 2017 revenues from recorded music in the United States increased 16.5% at estimated retail value to $8.7 billion, continuing the growth from the previous year. At wholesale, revenues grew 12.6% to $5.9 billion. Similar to 2016, these increases came primarily from growth in paid music subscriptions to services like Spotify, Amazon, Tidal, Apple Music, Pandora and others, which grew by more than 50%. This is the first time since 1999 that U.S. music revenues grew materially for two years in a row. At $8.7 billion, the industry has taken a decade to return to the same overall revenue level as 2008, and is still 40% below peak levels as the growth from streaming has been offset by continued declines in revenues from both physical and digital unit based sales. 

    Notably, “[s]treaming music platforms accounted for almost 2/3rd of total U.S. music industry revenues in 2017, and contributed nearly all of the growth.”  Interestingly, digital download revenues slipped 25%.  Also, “[s]hipments of physical products decreased just 4% to $1.5 billion in 2017, a lower rate of decline than in recent years.”  This is good news for the industry; although we are talking about returning to 2008 revenue levels. An earlier WIPO report noted that positive revenue growth in prior years was attributable to two causes: streaming (new business models) and an expansion into new markets (mostly developing countries).  

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  • Oral Argument of the day: In re Burgos

    The oral argument of the day is from In re Burgos.  This oral argument was particularly interesting for its discussion of the Supreme Court’s Funk Bros. decision.  Also, there was some discussion of the USPTO’s subject matter eligibility examples.  This is a good oral argument to listen to closely.  See if you think the argument […]

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  • Some New Papers on Royalties, SEPs

    1.  Michael Risch has published a paper titled (Un)Reasonable Royalties, 98 Boston University Law Review 187 (2018).  Here is a link to the paper, and here is the abstract:
    Though reasonable royalty damages are ubiquitous in patent litigation, they are only a hundred years old. But in that time they have become deeply misunderstood. This Article returns to the development and origins of reasonable royalties, exploring both why and how courts originally assessed them.

    It then turns a harsh eye toward all that we think we know about reasonable royalties. No current belief is safe from criticism, from easy targets such as the twenty-five percent “rule of thumb” to fundamental dogma such as the hypothetical negotiation. In short, this Article concludes that we are doing it wrong, and have been for some time.

    This Article is agnostic as to outcome; departure from traditional methods can and has led to both overcompensation and undercompensation. But it challenges those who support departure from historic norms—all while citing cases from the same period—to justify new rules, many of which fail any economic justification.

    2.  Tim Simcoe and Mark Lemley have posted a paper on ssrn titled How Essential Are Standard-Essential Patents?  Here is a link, and here is the abstract:
    Courts, commentators, and companies have devoted enormous time and energy to the problem of standard-essential patents (SEPs) – patents that cover (or at least are claimed to cover) industry standards. With billions of dollars at stake, there has been a great deal of litigation and even more lobbying and writing about problems such as how if at all standard-setting organizations (SSOs) should limit enforcement of patent rights, whether a promise to license SEPs on fair, reasonable, and non-discriminatory (FRAND) terms is enforceable in court or in arbitration, what a FRAND royalty is, and whether a refusal to comply with a FRAND commitment violates the antitrust laws.

    In this study, we explore what happens when SEPs go to court. What we found surprised us. We expected that proving infringement of a SEP would be easy – they are, after all, supposed to be essential – but that the breadth of the patents might make them invalid. In fact, the evidence shows the opposite. SEPs are more likely to be held valid than a matched set of litigated non-SEP patents, but they are significantly less likely to be infringed. Standard-essential patents, then, don’t seem to be all that essential, at least when they make it to court. 

    At least part of the explanation for this surprising result comes from another one of our findings: many SEPs asserted in court are asserted by non-practicing entities (NPEs), also known as patent trolls. NPEs do much worse in court, even when they assert SEPs. And the fact that they have acquired a large number of the SEPs enforced in court may bring the overall win rate down significantly.

    Our results have interesting implications for the policy debates over both SEPs and NPEs. Standard-essential patents may not be so essential after all, perhaps because companies tend to err on the size of over-disclosing patents that may or may not be essential. The failure of NPEs to win cases even with what seem like they should be a strong set of patents raises interesting questions about the role of NPEs in patent law and the policy efforts to curb patent litigation abuse. 

    3.  Dan Spulber has posted a paper on ssrn titled Finding Reasonable Royalty Damages: A Contract Approach to Patent InfringementHere‘s a link, and here’s the abstract:
    The article introduces a contract approach to patent infringement and develops a methodology for finding reasonable royalty damages. The contract approach complements approaches based on property and tort, thus providing a more complete understanding of damages. The article argues that the patent infringement case should specify an informed contract. The informed contract improves estimation of damages by taking into account information revealed during the period of infringement. The article introduces a market value method for calculating reasonable royalty damages based on patent transfer prices. The contract approach helps calculate reasonable royalty damages based on royalties in comparable patent licenses. The contract approach addresses various controversies over reasonable royalty damages.

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  • UMBC files trademark application to celebrate historic upset in NCAA Tournament as 16-Seed

    UMBC has filed U.S. Trademark Application No. 87838422 which would protect the use of the standard character mark ’16 over 1′ for the sale of athletic apparel including footwear, hats and athletic uniforms. The university also filed U.S. Trademark Application No. 87838378, covering the standard character mark “RETRIEVER NATION”, and U.S. Trademark Application No. 87838377, covering the standard character mark “UMBC RETRIEVERS”. Each of these trademarks was filed on March 17th, one day after the…

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  • What Does GDPR Mean for Your Business?

    It has been a big last couple of years for the European Union in the political and business spectrums; what with Brexit and changes to the cybersecurity paradigm. The latter, in particular, will see even bigger changes once the European Union’s General Data Protection Regulation (GDPR) becomes instantiated into law. The scope of this initiative is as broad as it comes, and will alter how business is done in technology, cybersecurity, marketing and even human resources… GDPR takes measures to…

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  • Anonymous accuser asserts copying in doctoral thesis of Gregory J. Vincent

    On 21 March 2018, an anonymous person emailed to people at Hobart and William Smith University and University of Pennsylvania accusations that the president of Hobart, Gregory J. Vincent, had plagiarized portions of his doctoral thesis at UPenn. The title of Vincent’s thesis at UPenn is: Community -university partnerships in action: A case study of the Louisiana State University-Old South Baton Rouge partnership

    InsideHigherEd has a discussion of some of this in its post President Investigated After Anonymous Tip Alleges Plagiarism .
    The example highlighted by InsideHigherEd reveals exact copying of one paragraph without quotation marks from a work published about ten years before the thesis publication. However, there is a citation to this work, given within parentheses: (Massy and Denton, 1993).

    Thus, the issue is that, although the reader knows the idea came from Massy and Denton, the reader does not know that the exact words of Massy and Denton were copied in the thesis. InsideHigherEd presented the thesis text in this highlighted example:

    … combination of government and private action (Massy and Denton, 1993). Hyper segregation may be conceptualized in terms of five distinct dimensions of geographic variation. Blacks may be distributed so that they are overrepresented in some areas and underrepresented in others, leading to different degrees of unevenness; they may also be distributed so that their racial isolation is ensured by virtue of rarely sharing a neighborhood with whites. In addition, however, black neighborhoods may be tightly clustered to form one large contiguous enclave or scattered about in checkerboard fashion; they may be concentrated within a very small area or settled sparsely throughout the urban environment. Finally, they may be spatially centralized around the urban core or spread out along the periphery (Massy, and Denton, 1993).

    Apart from the –exact copying– issue, one might question how profound the idea itself is, and how the idea relates to the “case study” of the thesis itself.

    IPBiz previously discussed the Poshard thesis plagiarism matter. One of the issues therein was the copying of a literature review. Not greatly discussed was that the copied literature review was temporally irrelevant to the thesis.

    See the 2007 post on IPBiz:
    Page 54 of the Poshard Ph.D. thesis: a real problem as to plagiarism

    [Coincidentally, the “copied” material in both the Vincent and Poshard matters was about ten years old, not exactly “hot off the press.”]

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  • かまわない/構わない




    $$ The cone-shaped head of the second member 33 could be cylindrical, as long as it was of a size to fit into the hole 40a in the work-pieces. / 第2部材33の円錐形の頭部は、加工物の穴40a内に嵌合する寸法のものであれば円筒形であっても構わない。(USP8517650)

    $$ Furthermore, other processes could be used to filter the fingerprints for the matching process. / さらに、マッチングプロセスで、フィンガプリントをフィルタ処理するのに、他の手法を使用しても構わない。(USP8433108)

    $$ The chirped laser may be a quantum cascade laser. / チャープレーザは量子カスケードレーザであっても構わない。(USP8339606)

    $$ Alternatively, no filler at all may be provided although this will result in a softer compound when cured. / あるいは、硬化したとき柔らかい化合物となるか、または充填材なしでもかまわない。(USP8212270)

    $$ However, bearing material may additionally be present in some or all of the remaining regions of these surfaces. / もっとも、これら表面の残りの領域の一部または全てに軸受材料を追加してもかまわない。(USP8104232)

    $$ It will be appreciated that although the holes 16 are shown as square in the drawing, they may be other shapes, such as round. / 添付図面中では孔16は矩形な孔として示されているが、円形等の他の形状であっても構わないことはもちろんである。(USP5408568)


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  • CAFC critiques PTAB Arista decision for lack of explanation of reasoning

    Lack of reasoning by PTAB (as to why certain prior art was inadequate
    to teach a claim element) produced a vacating in the Arista case:

    Arista Networks, Inc. challenged various claims of
    Cisco Systems, Inc.’s U.S. Patent No. 8,051,211 in an
    inter partes review. The Patent Trial and Appeal Board
    of the Patent and Trademark Office determined that
    Arista failed to show that certain claims are unpatentable
    for obviousness. Because the Board did not adequately
    explain its reasoning on a point that was central to its
    analysis, we vacate the Board’s determination as to the
    appealed claims and remand for further proceedings.

    Of the problem

    We agree with Arista that the Board has not adequately
    explained its finding that Kunzinger does not
    disclose the tunneling limitation of claims 2, 6–9, 13, and
    17–20 of the ’211 patent.


    Arista’s contention on appeal is that the Board improperly
    overlooked that complication of the “without
    examination” portion of the “tunneling” construction when
    considering Kunzinger.


    Consequently, Arista concludes, Kunzinger
    teaches the “tunneling” limitation, contrary to the Board’s
    finding. At the least, Arista contends, the Board did not
    adequately explain why Kunzinger’s examining activities,
    involving the outer header, are relevantly different from
    actions permitted to be part of “tunneling” by the ’211
    patent, a crucial premise of the Board’s finding that
    Kunzinger does not teach that limitation.

    As to legal standards:

    We review the Board’s final written decisions “to ensure
    that they are not ‘arbitrary, capricious, an abuse of
    discretion, . . . otherwise not in accordance with law . . .
    [or] unsupported by substantial evidence.’” Pers. Web
    Techs., LLC v. Apple, Inc., 848 F.3d 987, 992 (Fed. Cir.
    2017) (quoting 5 U.S.C. § 706(2)(A), (E)). “[I]n order to
    allow effective judicial review, . . . the agency is obligated
    to provide an administrative record showing the evidence
    on which the findings are based, accompanied by the
    agency’s reasoning in reaching its conclusions.” Id. (quoting
    Synopsys, Inc. v. Mentor Graphics Corp., 814 F.3d
    1309, 1322 (Fed. Cir. 2016), overruled in another respect
    by Aqua Prods., Inc. v. Matal, 872 F.3d 1290 (Fed. Cir.
    2017), and In re Lee, 277 F.3d 1338, 1342 (Fed. Cir. 2002))
    (internal quotation marks omitted). “For judicial review
    to be meaningfully achieved within these strictures, the
    agency tribunal must present a full and reasoned explanation
    of its decision.” Lee, 277 F.3d at 1342.

    We agree with Arista to the following extent (and we
    go no further here): the Board did not adequately explain
    why “transmission of the IPSec packet” in Kunzinger
    includes an “examination” excluded from the “tunneling”
    claimed in the ’211 patent, even while the described use of
    fields and tags in the ’211 patent is not such an excluded
    “examination.” Final Written Decision, at 25. The ’211
    patent’s tunneling process “internally routes data . . .
    depending on, for example, information associated with
    the data (e.g., an encapsulation tag . . . ).” ’211 patent,
    col. 7, lines 38–42. At one level of generality, in that
    situation, as in Kunzinger, a portion of a frame is transmitted
    through the tunnel without examination, while
    another portion is examined to route the data to its proper
    destination. That general description of what is similar
    may well omit critical differences. The Board implicitly
    must have so found in determining that Kunzinger shows
    a forbidden “examination.” But the Board’s decision is
    lacking in explanation on this key element of its analysis.
    The decision “does not address, or at least does not clearly
    address,” the difference between the examination of
    tunneled packets in Kunzinger and the type of examination
    that is permissible in the tunneling process of the
    ’211 patent. See Pers. Web, 848 F.3d at 993.

    The CAFC attempted to lay out a boundary:

    Some Board explanations can suffice even if brief, as
    when the patent and the art are both clear and readily
    understandable. Id. at 994. In addition, “we will uphold
    a decision of less than ideal clarity if the agency’s path
    may reasonably be discerned.” Bowman Transp., Inc. v.
    Ark.–Best Freight Sys., Inc., 419 U.S. 281, 286 (1974); see
    In re NuVasive, Inc., 842 F.3d 1376, 1382–83 (Fed. Cir.
    2016). But, understood in light of our scrutiny of the
    patent and the prior art, the Board’s “own explanation
    must suffice for us to see that the agency has done its job
    and must be capable of being ‘reasonably . . . discerned’
    from a relatively concise [Board] discussion.”
    In re NuVasive,
    842 F.3d at 1383. In this case, Cisco’s attempt to
    explain the distinction at issue has not sufficiently enabled
    us to see an adequate explanation in the Board’s

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  • The House IP Subcommittee: A Bunch of Fiddling Neros Watching the U.S. Patent System Burn

    Interestingly, in the history of the entire CBM program, only three petitions have ended with final written decisions upholding all claims as valid. That’s 1 percent of all CBM petitions ultimately resulting in a final decision in favor of the patent owner… If Congress enacts legislation to mix the CBM program with IPRs and PGRs, which Rep. Issa seemed to contemplate during the hearing, then you just get the worst of both worlds: an environment in which any person could challenge any patent…

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  • Cleveland Indians to Stop Using Chief Wahoo Logo in 2019

    The Cleveland Indians are planning to stop using the Chief Wahoo logo on their uniforms or on signage at the stadium starting in 2019. As a longtime source of controversy, the logo has been used less frequently recently with increasing protests and a legal challenge. However, the franchise will not give up the trademark or profits from sales of merchandise bearing it, and doesn’t plan to change the team’s name. 

    The post Cleveland Indians to Stop Using Chief Wahoo Logo in 2019 appeared first…

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  • How Do Musical Artists Get Paid When Skaters Use Their Songs at the Olympics?

    The somewhat jarring Olympics tradition of juxtaposing athleticism and grace with instrumental versions of popular songs you might hear in the grocery store came to an end in Pyeongchang. After the Sochi games in 2014, the International Skating Union (ISU) decided to shake things up (or shake it off, Taylor Swift?) and began allowing skating to music with lyrics. This is not at all surprising given the demographics of the skaters, who are much more likely to enjoy “Single Ladies” than “Clair de…

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