Archive for September 2012

Can You Patent a Rectangle?

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On March 17, 2004, Apple Computer, Inc. filed patent D504,889. This patent was granted on May 10, 2005. The patent claims “the ornamental design for an electronic device, substantially as shown and described below.” Looking at the patent, the picture is a rectangular device with rounded edges. This is Apple’s design of their iPad. It should be noted that this patent is on the design, not on a device. Thus, the International Trade Commission (ITC) gave Apple a patent on a rectangular design for an electronic device.

Rectangles have been present long before patents. The United States’ first patent statute, the Patent Act, was passed in 1790. It is safe to assume that rectangles were present before the passing of the Patent Act. Thus, the rectangle is nothing new. Additionally, the rectangle is used in many electronic devices. For example, modern television screens and laptop computers have a rectangular design. Because many electronic device manufacturers have used the rectangle in technology, the rectangle’s use is not innovative and is common place in the electronic device industry. Despite this, the ITC granted Apple’s patent.

On June 27, 2012, the Samsung Galaxy Tab 10.1 was banned because it violated Apple’s D504,889 patent. California district Judge Lucy Koh stated that “[a]lthough Samsung has a right to compete, it does not have a right to compete unfairly, by flooding the market with infringing products, … As a patent holder, Apple has a valid right to exclude others from practicing Apple’s invention.” It would be ridiculous to find that Apple invented the rectangle or was the first to invent a device with a rectangle. Would a consumer confuse an Apple iPad with a Samsung Galaxy Tab when the Galaxy Tab has a large metal Samsung logo and Google logo on the back of the device?

Apparently, jurors did not share Judge Koh’s view when it came to the Galaxy Tab 10.1. On August 24, 2012, Samsung lost a monumental case to Apple when the jury awarded Apple $1,049,343,540 in damages. While Samsung infringed on various patents, the Galaxy Tab 10.1 was found not to have infringed on the D504,889 patent. On September 28, 2012, the United States Court of Appeals for the Federal Circuit sent the case back to Judge Koh to make a determination. Hopefully, she lifts the injunction.

Many people are upset with Apple claiming that Apple is inhibiting competition and is frivolously filing patents that show no innovation. However, should we point our finger at Apple, a company that is just taking advantage of the patent system, or should we point our finger at the patent system itself? I point my finger at the patent system and the ITC for granting a patent on a rectangular design.


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September 29th, 2012 at 10:11 am

Posted in Commentary

Video Games and Intellectual Property: Chrono Trigger Fan Remakes and Copyright Protection

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Before I start, I’d like to state that I realize that this topic has been beaten to death, but I’d like this to be a continuing series of posts on intellectual property issues in the video game community, and this situation is fairly straightforward and serves as a good introduction to the major issues at hand.

I’ll admit, Chrono Trigger is a very good game. I prefer Chrono Cross personally, but I understand why so many people consider it among the greatest games of all time. The story is lighthearted with some mature undertones, the battle system is simple to learn but has a surprising amount of depth, and the concept of traveling to different periods of time and having your actions affect future timelines was unique and well executed.

It should come as no surprise, then, that the strong fanbase would want more. Chrono Cross took a rather different approach to the series and was released over 10 years ago, and all fans have had since then are a PS1 port plagued with loading time issues and a DS remake that was well received but didn’t satiate long time fans. Long story short, they wanted a new Chrono game, one with updated graphics and a better connection to (or retcon of) Chrono Cross.

Several fan remakes started popping up starting from the early 2000s, but the most notable ones were Chrono Resurrection, Chrono Trigger: Crimson Echoes, and Chrono Trigger HD. Resurrection was a remake of the original game while Crimson Echoes was an interquel that tied together Chrono Trigger and Chrono Cross. These first two were notable in that Square Enix, owner of the copyrights and trademarks related to Chrono Trigger, sent cease-and-desist letters to the developers of these games claiming trademark and copyright infringement.

Square Enix’s arguments were very strong. As derivative works, 17 U.S.C. § 106 gives the original copyright holders the exclusive rights to prepare such works, so the fans had to seek permission before creating work with Square Enix’s copyrights. While the developers might have claimed fair use under 17 U.S.C. § 107, particularly because they would release the games for free, the preemption of sales that Square Enix would supposedly get by making its own remake is enough of an effect on the potential market to bar the fair use defense. Square Enix had them dead to rights.

Chrono Trigger HD, another attempt at a straight remake using the Unreal engine, is taking a different approach. They have no website and they will not include their names in the credits, hoping that Square Enix will not be able to find out who is infringing their IP. This logic, however, is deeply flawed. As has been noted by Mark Methenitisa fellow Greek IP lawyer?!—and Zack Bastian, just because they can’t find the original developers doesn’t mean that the game is any less illegal. They’ll use their resources to take down whatever public disclosures they can find, and if the developers want anyone to play the game outside their torrent circle, they’ll probably have to disclose at some point.

Go figure, the law student likes IP protection. Seriously, though, there are a lot of game IP that fans want revisited. Xenogears deserves a proper disc 2. A third Chrono game would sell like crazy. The movement for a Final Fantasy VII remake is stronger than ever. If The Last Story and Mass Effect 3’s Extended Cut have taught us anything, it’s that game companies are listening to fans. If Microsoft is willing to address their Xbox Live harassment issues because of fan promotion of this web video, Square Enix may be willing to hear out Chrono Trigger fans. Infringing their IP is only going to discourage them from creating new content, which is why we have IP protection in the first place.

Of course, this brings up the question of user-generated content in general, such as the mod kits in the Elder Scrolls games, map editors in Starcraft, and level creators in LittleBigPlanet. DayZ is an interesting case as well, being a mod of Arma 2 that eventually became a retail game. But that’s another post.

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September 27th, 2012 at 11:12 am

FTC cracking down on privacy policies: Myspace, Google, & Facebook

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Last September the FTC filed a complaint against Myspace for alleged violation of its privacy policy. Myspace had told users it would not provide personal information about them without first getting permission. However, Myspace had been giving advertisers information about its users who were viewing particular pages on the website. It provided unique ID numbers of certain users to advertisers so advertisers could then access publicly available personal information. The personal information included a profile picture, username, age, gender, and full name. Some profiles also contained more photos and information about hobbies, activities, and friends.

Myspace denied the allegations claiming it followed the U.S.–E.U. Safe Harbor Framework.  Myspace maintained it gave consumers notice of what it was doing and gave users the choice to opt-out. The FTC alleged these statements were false and the two settled this May. Myspace has agreed to implement a comprehensive privacy policy and be subject to independent privacy assessments every other year for twenty years. The settlement was finalized September 11, 2012.

The FTC cracked down on Myspace as part of its mission to make sure companies are keeping their privacy promises to consumers. The FTC had similar settlements with Facebook and Google last year.  This August, the FTC also announced that Google agreed to pay a $22.5 million fine.  Google agreed to the fine in order to settle allegations that it had secretly tracked web activity of Apple Safari users in violation of an earlier settlement.  This will be the FTC’s largest civil penalty yet.

With privacy issues on every social media users’ mind, the FTC is doing their best to protect users.  David Vladeck, director of the Bureau of Consumer Protection of the FTC, hopes this penalty “will force Google to have a better sense of what’s going on.”  And maybe it will force other companies to do the same.

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September 20th, 2012 at 12:14 pm

America’s First Patents: A Discussion with Professor Michael Risch

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Last Thursday, the Intellectual Property Student Association and the Federalist Society of the University of Michigan Law School hosted Professor Michael Risch of Villanova School of Law. Professor Risch gave an intriguing talk about America’s first patents and the history of patent law as a whole. It was standing room only with a lot of 1Ls in attendance (probably for the free falafel), and the talk went very well. UMLS Professor Rebecca Eisenberg provided some commentary on the talk to finish the event.

Professor Risch made three main points: inventions change with time, importing English patent laws may have been flawed, and the machine-or-transformation test is not historically justified. He started by showing some of the earliest American patents, including Eli Whitney’s cotton gin, a coil spring mattress (though the people of the time thought the concept of sleeping on coils to be insane), and a horse-powered boat (yes, you read that right). On the last one, not only was there a patent on a horse-powered boat, there was an infringement suit, which implied that there was at least one other person who used a horse-powered boat! The key element to take away from the early patents is that the subject matters of these patents could not be foreseen by Congress, especially as time moved on, so the idea that Congress must act to allow new subject matter may be ill advised.

The importation of English patent law as the basis for our own may have been a mistake. English patent law relied on grants from the crown and was intended for manufactures mostly. Methods could not be patented in England, as they were grouped with scientific “principles” and other traditionally unpatentable matter. American patent law did allow methods to be patented, indeed the very first patent, signed by George Washington himself, was for a method to make pot or pearl ash. Influence from English law persisted primarily through the opinions of Justice Story, who viewed methods as unpatentable and who remains to be quoted to this day.

Some of the early business method patents imply that the machine-or-transformation test was simply not used in patent examination. One such patent was a method for numbering checks and matching these checks to a ledger. No machine is used, and nothing is transformed, yet the patent was granted. Indeed, about 40% of the method patents (comprising about 12% of the total patents issued) issued from 1790 to 1839 would fail the machine-or-transformation test. Until the 1900s, machines were not even allowed in method patents! To say that the machine-or-transformation test has a historical basis ignores the historical data.

Overall, the event went very well, and we were all very excited to have Professor Risch join us at Michigan. His talk was very interesting, even (and especially) to those without prior IP background (lots of pictures!), and there was good feedback from those in attendance. Read his full paper here.

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September 18th, 2012 at 12:24 pm

Posted in Commentary

Dog Bytes

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I will be the first to admit that my dog is spoiled. In our house, he has pretty much free reign, within reason, and I prefer his company to most people. No offense to humans; my dog is appreciative, doesn’t want to talk about politics and is always happy to see me. Judging by the number of products on the market targeted for our canine companions, popping up at drug stores and dominating the majority of the SkyMall catalog, I think it’s safe to say that many dog owners across America agree with me.

One can purchase almost anything for our furry friends: hip harnesses to help those that are a bit on in years,  Tempur-Pedic beds for their four-legged frames, action cameras designed to capture the world from their point of view, and dog booties to protect their paws on various terrains. Technology has also progressed to aid in the recovery of the faithful companions when they get separated from their owners. Microchips, like HomeAgain, GPS dog collars, and smart phone tags are available to help finders locate a lost dog’s owner. These advances in dog technology make me curious what the impact may be on the legality of custody battles over lost dogs. Previously, owners of a lost dog had few options other than posting flyers around the neighborhood. With the ability to track animals, is it necessary to revise the standard finders laws associated with lost pets? If someone finds a stray dog, are they required to check if the dog is chipped? Or, if an owner loses their dog, must they notify the microchip company in order to avoid a dispute later? Many states address the custody of lost dogs through statutes. In Tennessee and other states, it is a misdemeanor to remove a microchip from a dog with the intention of preventing or hindering the owner from locating the animal. In Guam, it is a second degree felony to demand payment of a reward for the return of a lost dog. On the other side, Michigan law requires that the owner must pay the finder twenty-five cents per day for boarding a lost dog.  How does the case change, though, when there is evidence that the dog has been abandoned? Does chipping a dog mean that it technically cannot be abandoned, since there is always a link back to the original owner?

As reported by ABC this summer, a Colorado man took his 100-pound German Shepherd, Missy, on a hike to the top Mt. Bierstadt, one of Colorado’s fourteen-ers. (Mt. Bierstadt stands 14,065 feet tall). The tops of these mountains are often difficult to navigate, with the trail disappearing into fields of sharp boulders. Missy’s paws were cut, and her owner made the decision to leave her on the top of the mountain so as to make it down before inclement weather hit.  He did not make further efforts to recover her. Six days later, a local couple was hiking the same path and found the dog tucked under some rocks. After a forest ranger expressed regret that they could not offer any assistance, the couple organized a group of eight volunteers to return up the mountain on a nine hour rescue mission through a snow storm to get Missy and carry her back down to safety.

Missy’s original owner has been charged with animal cruelty, but now wants his dog back. The couple that found Missy, as well as other members of the rescue team, would like to adopt her. Here, a straightforward law that usually leads to the morally “right” solution might fail. If the law favors returning lost dogs to their original owners, should there be room for exceptions? What role should technology play? If Missy is chipped, does her original owner have a stronger claim, even though she was not technically lost? Should the fact that her original owner could have outfitted her with booties before the hike to prevent the situation weigh in on the custody battle? My opinion as a dog owner differs from my opinion as a law student. What do you think? Please feel free to leave a reply below.







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September 16th, 2012 at 6:58 pm

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Turning Your Porsche Cobalt Blue Just Got Easier

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As NYC’s Fashion Week draws to a close it is perhaps more apparent than ever how fast trends come and go. Last year it was colored denim, this year it’s metallic brocade, and the styles featured on the runways this week will be old by the time the season they’re mean to be worn (spring) actually rolls around. But with big ticket items like cars the frenzy to constantly change style hasn’t caught on just yet. To buy shoes in order to update your look from black heels to the latest cobalt shade requires 5 seconds of looking online, and 2 days for amazon shipping. A change to your car color is a whole other story. It entails either buying a new one, or more likely painting it, waiting for it to dry, and even more frustratingly, waiting at least 4 weeks for it to cure.

Wrapping technology changes this, so there’s no excuse for your car not to be as trendy as your coat. Nowadays you can change the color of your car with a wrap that not only changes its color, but also protects it from the heat and grit and slush of a road. Technically called “wrapping film” a wrap is sort of like shrink wrapping meets wallpapering, and is better seen than explained.

Watch installers wrap a Porsche in 60 seconds.

Companies like Avery Dennison and 3M manufacture these wraps. The company actually digitally prints a color (or a design) onto the wrap. The sky is the limit for the color- match your dress or nail polish if you’re so inclined, since any color is doable. Then people apply it to your car. The wrap is very labor-intensive, so most of the cost is in the labor. Most skilled wrappers (“installers”) have been certified, and you find them just by looking around, the web equivalent of a wrap phone-book. The wrap has no drying time so it takes only as long as the installers take to put it on, which is typically a day or two. Once they’re done you can zoom off in it and enjoy this year’s color before it goes the way of last year’s fashions.

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September 13th, 2012 at 11:25 am

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More damages for less infringement?

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Although the Eighth Circuit Court of Appeals brought Capitol Records, Inc. v. Thomas-Basset to a long-overdue end this week, the decision’s reasoning create a perplexing set of incentives for individuals who reflect on copyright jurisprudence before deciding whether to infringe. The case arose from a complaint filed by record labels on the basis of 24 songs made available on KaZaA, which, the plaintiffs claimed, violated their distribution right under the copyright statute.

Three trials followed: In 2007, a jury awarded damages in the amount of $222,000, after which the district court ordered a new trial on the basis of an erroneous jury instruction which characterized “making available” a work protected by copyright as infringement of a proprietor’s distribution right. A second jury awarded damages of $1,920,000, which the district court remitted to $54,000. A third and final jury awarded $1,500,000, which the district court reduced to $54,000, then finding that the due process clause constitutionally capped the damages at three times the statutory minimum.

The plaintiffs appealed to reinstate the award of $222,000 on the theory that the jury instruction was not erroneous and thus no second (or third) trial should have occurred. Thomas-Basset, in contrast, sought affirmance that $54,000 was the maximum award constitutionally permissible. The Eighth Circuit ruled in favor of the plaintiffs on the jury instruction question and against Thomas-Basset on the constitutional question; on the latter question, the court found that the total $222,000 award was constitutional even though the penalty rate of $9,250 might be unconstitutional if Thomas-Basset had infringed more songs:

“If [plaintiffs] had sued over 1,000 recordings, then a finder of fact may well have considered the number of recordings and proportionality of the total award as factors in determining where within the range to assess the statutory damages. If and when a jury returns a multi-million dollar award for noncommercial online copyright infringement, then there will be time enough to consider” the constitutional question.

Once such a case were brought, though, the Eighth Circuit would create an odd precedent if it were to find that statutory copyright damages are “wholly disproportionate to the offense” on the basis of the total bill rather than the per-violation penalty. Thomas-Basset’s case makes clear that juries will issue judgments ranging from $222,000 to $1,920,000 based on the same 24 instances of copying, and the Eighth Circuit suggests it will not find a constitutional limit on damages for non-commercial copying until a multi-million dollar award is appealed. If that limit were drawn at, say, $1,000,000 or $2,000,000, though, it would suggest that anyone who has non-commercially made protected material available online on 24 occasions within the statute of limitations may proceed to commit another 1,000 violations without subjecting herself to additional liability.

What effect do you think the decision will have on infringing behavior and whether or where a due process limitation on statutory damages for non-commercial online copying should be drawn? Please feel free to add your comments below.

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September 12th, 2012 at 11:20 am