As we say farewell to 2009, we must recognize that even in its final hours this year continues to provide vivid examples of the value of intellectual property rights.
Specifically, this New Year’s Eve, Tavern on the Green will close its doors after 75 years in New York City’s Central Park. And while many question how this landmark that declared $38 million in gross revenue in 2007, making it the second highest grossing restaurant in the US, now finds itself in bankruptcy, we want you to consider that despite the Baccarat and Waterford Chandeliers, the restaurant’s most valuable asset may be its trademark.
After the final service at the Tavern this evening, the Bankruptcy Court must decide if this $19 million asset belongs to the City of New York and is therefore outside the proceeding, or if it belongs to the LeRoys personally, also arguably putting it outside of bankruptcy, or if it is owned by the bankruptcy estate and should be liquidated. To Read More Click Here
The federal false patent marking statute, 35 U.S.C. § 292, prohibits the false marking of "any unpatented article" with the word "patent" or other suggestions, such as advertising, that would indicate that the article is patented. The goal of the statute is to avoid public deception as to whether a particular good is in fact patented.
Several qui tam lawsuits, which are generally lawsuits brought by private individuals on behalf of the government, have been filed based on alleged violations of the false marking statute, and seek to impose up to a $500 penalty for each article that has been falsely marked. For example, some of these lawsuits have been brought by consumers who have noticed expired patent numbers or false patent markings on everyday products, including paper cups and plastic utensils.
There has been much debate over the appropriate penalty for falsely marking a patent number on a manufactured article. On the one side of the debate are those, such as the consumers that filed the above-mentioned lawsuits, who contend that a penalty should be assessed for each and every manufactured article that bears the false marking. They contend that, if a manufacturer decides to mark 1,000 products with a false patent marking, then the maximum penalty under the statute should be $500,000, or $500 per article, for each of the 1,000 items marked.
On the other side of the debate are those, accused of false marking, that contend that the penalty should be imposed for each decision to mark a quantity of manufactured articles. According to their contention, the statute should be interpreted such that, if a manufacturer were to decide to mark 1,000 items with a patent number, and the marking was later ruled to be a false marking, then the maximum penalty would be $500, based on the one decision to mark the articles.
Earlier today, the Court of Appeals for the Federal Circuit issued a ruling that should clear up much of the debate. In today's decision, the appellate court interpeted the false patent marking statute, 35 U.S.C. § 292, to require a penalty for each article or good that is falsely marked with a patent number, and not for each decision to mark a number of goods, as suggested by one of the parties. The appellate court did note, however, that $500 is the maximum penalty for each falsely marked article, and that judges will continue to have discretion to assess a lower penalty, according to the circumstances of a given case.
You can read the Federal Circuit's decision in Forest Group, Inc. v. Bon Tool Company et. al., here.
Brands often tend to have life cycles. Even longstanding or big-name brands may inevitably die out. With trademarks and trademark law being strongly linked to brands (sometimes the terms "brand" and "trademark" are even used synonymously), the death of a brand can raise interesting trademark-related issues. For example, questions arise as to whether, or when, others are free to pick up and start using the trademark of a defunct brand. For a list of some familiar brands that appear to be on the brink, click here.
Perhaps signaling that the clock may soon run out on pure 'Business Method' patents, several of the Supreme Court Justices, during oral arguments in Bilski and Warsaw v. Kappos last month, joked whether patents should be permitted for innovations such as methods of horse whispering, methods of speed dating, or a method of teaching antitrust law. Although the exchange took on an air of judicial levity, the underlying message seems to point towards a decision invalidating an entire segment of already issued patents. This type of exchange ratchets up the anticipation and angst already being felt by a patent and corporate world that anxiously awaits the determination of whether "Business Method" patents will be dumped or stay the current bell of the ball. For more on this click here
Now that we too are tweeting it is time we blog about Twitter. As some of you may know, the Pew Internet Project report recently found that 19 percent of all US Internet users are using Twitter or similar services to share social updates, a number which is an 8 percent increase from last year. Not surprisingly the increase is mainly attributed to three groups: (1) young Internet users 18-44, (2) mobile users and (3) those who already utilize social networks, such as Facebook and MySpace. The survey results were based on 2,253 phone responses from U.S. consumers 18 and older between Aug. 18 and Sept. 14. The 18-44 demographic can be broken down further. Specifically, usage nearly doubled from 19 percent in December 2008 to 37 percent in the 18 to 24 age group. Those 25-35 were not far behind they were up 20 points to 31 percent. While users 35-44s went up 10 points to 19 percent.