The recent Federal Circuit decision in In re Bilski last October has begun to cause some concern in the biotech sector. As we have reported in previous blog entries, Bilski created a new test for method claims in patents, requiring a claimed process to be tied to a machine or apparatus, or to transform an article into a different state or thing (see blogs “In re Bilski: What Constitutes a Statutory ‘Process’ Under §101?” posted 11/5/08, “Supreme Court To Review Method Patent Case” posted 6/2/09, and “More on Bilski and Business Method Patents” posted 6/3/09). Even though the technology in Bilski was not scientific in nature, some are concerned that the precedent set by this case could have ramifications for the biotech sector since many issued biotech patents and pending biotech patent applications, such as, but not limited to, certain processes for genetic testing, do not rely on a machine or transformation. As we await the U.S. Supreme Court hearing in October, we hope that the potential application of Bilski to the biotech sector will be addressed by the Bench.
Pursuant to Florida SB 872 the sate ficticious name statute 865.09, F.S, is being amended to require that a business publish its intent to use said ficticious name. While some have noted some exceptions to this requirement, such as a valid Florida Trademark Registration, here, certaily the publication requirement offers a new way to police existing Sate and Federal Trademark rights.
Many titles were bestowed upon Michael Jackson during his lifetime, but one not commonly associated with him was "inventor".
But indeed, The King of Pop is listed as a co-inventor of United States Patent Number 5,255,452, entitled "METHOD AND MEANS FOR CREATING ANTI-GRAVITY ILLUSION", and covering shoes of the type worn while performing dance routines in his hit single "Smooth Criminal", where he famously incorporated a 45-degree lean in the choreography.
An order to grant a new trial in Capitol Records, Inc. v. Thomas should pique the interest of both music downloaders and music industry executives alike. A jury found the defendant liable for copyright infringement and awarded $220,000 in statutory damages in connection with the copying of 24 songs. The judge, however, ordered a new trial based on an error in the jury instructions, where the instructions were contrary to the precedent set by the Eight Circuit in National Car Rental System, Inc. v. Computer Associates International, Inc., 991 F.2d 426, 430-31 (8th Cir. 1993)(requiring an actual dissemination of [sic] copies). In the jury instructions, Chief Judge Davis did not require a finding that the defendant actually distributed the works in question but required only a finding that the defendant made the works available to others to download.
The excessively large statutory award of $220,000, based on the only 24 songs, further compelled the judge to vacate the jury verdict. The judge opined that Congress intended that these large statutory awards deter those engaged in piracy for profit and that “it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit….” In his order, the judge suggested that Congress should address and amend the Copyright Act for liability and damages in these types of consumer cases. As the internet and advancements in technology increasingly permeate the lives of private individuals, copyright holders may face the unfeasible task of enforcing their rights against all infringing individuals. The courts and Congress must, however, protect the interests of intellectual property holders yet not allow large entities to financially ruin an individual for a seemingly minor offense.
Sebastian Ohanian Contributed to this Entry.
Given that an asserted patent such as the‘216 patent can be subject to a wide variety of attacks during litigation, when such patents survive litigation and are found to be infringed, they may point to good examples of claim drafting -- especially when enormously large amounts of damages were at stake.
A federal lawsuit that involves one of the firm's clients, Money4Gold Holdings, Inc., has drawn media attention, due to its implications on internet commerce and online marketing . Among the issues raised by this lawsuit is whether companies that utilize affiliate marketing can be held responsible for alleged acts of infringement by individual affiliate marketers, also known as "publishers".
An article written by Vanessa Blum, a special reporter to the Daily Business Review, can be found here.