Not Rethinking Digital Copyright: Ruling Ends ASCAP's Magical Thinking
Posted by Kristen Cichocki at April 30, 2007 07:28 PM
Not Rethinking Digital Copyright: Ruling Ends ASCAP's Magical Thinking
On April 25th, the U.S. District Court for the Southern District of New York ruled against the American Society of Composers, Authors and Publishers (ASCAP) holding that downloads of music over the internet did not constitute a public performance under copyright law.
Performance rights societies, such as ASCAP, license and collect royalties for the public performances of their member’s works. Traditionally this has meant all performances of a work on radio, TV, cable, in bars, clubs, malls, airlines, websites, etc; in short, public places where the work was played and somebody heard it. ASCAP also collects performance fees on all digital streams, which are not unlike radio broadcasts.
On
Under Sec. 101 of the Copyright Act, “to perform” means to recite, render, play, dance, or act it, either directly or by means of any device or process. To perform a work “publicly” means 1) to perform at a place open to the public where a substantial number of persons gather or 2) to transmit the work to a place open to the public or by device or process in a way the public is capable of receiving it (think radio).
I don’t know about you, but when I download something I’m usually by myself (in the law library). And what I get from iTunes is not a ‘performance’, but a copy of a musical work for which I’ve paid. Not dissimilar to what I get when I go to my local music store and buy a copy of the latest Modest Mouse CD.
The court obviously agrees. In his opinion, U.S. District Judge Connor noted that the language of the statute was clear, “in order for a song to be performed, it must be transmitted in a manner designed for contemporaneous perception.” The court then aptly pointed out that the downloading of a file was more accurately characterized as the reproduction of a music file, i.e. a copy. As the court points out, this is consistent with the holdings in the peer-to-peer file sharing cases which found that the downloading of copyrighted music files violated the plaintiff’s reproduction rights.
The court thus declined to rethink downloads and maintained, contrary to ASCAP’s creative imagining, that downloads are nothing like radio broadcasts or digital streams. A download is simply the transfer of a file from one location (the iTunes server) to another (my laptop). Like the sale of a CD, the one who transfers the file pays what is known as a mechanical license fee to do so. In the digital realm it’s called a digital phonorecord delivery (DPD) license.
Unfortunately for ASCAP, mechanical license fees are paid to the Harry Fox Agency.
Read the full opinion here
Another example of rising restriction requirements?
Posted by Kristen Cichocki at March 22, 2007 09:14 PM
As some of you may know, I’m one of the parachute packers here at RethinkIP. That means I’m usually behind the scenes updating the RSS Mojo with the latest news from the USPTO. But, I’m also a law student with a slight obsession for everything IP and sometimes I just gotta lend my two cents.
In a recent post Stephen Nipper revealed he was spending some time saying “hmm” over the possibility that the recent drop in the allowance rate and rising restriction requirements might indeed be evidence of a secret change to official USPTO policy.
Well now it’s official, at least for applications containing nucleotide sequences.
On March 12th the USPTO issued a pre-OG notice indicating it is rescinding the partial waiver of requirements and unity of invention it provided in November 1996 for applications that included claims for isolated and purified DNA fragments and other certain DNA fragment combinations.
In 1996, the PTO remarked that it needed to “simplify and standardize” its policies and procedures in order to promote the growth of the biotech industry. The waiver allowed applicants to claim up to ten independent and distinct nucleotide sequences in one application.
The numbers indicate the waiver worked. According to statistics from the Georgetown University DNA database, in 1996 there were a little over 1,500 DNA-based patents issued in that year. At its peak in 2001, 4,500 DNA-based patents issued. According to
Sheer volume and advances over the past ten years in biotechnology have obviously forced the PTO to rethink its policy.
Might the PTO be forced to do the same thing in other areas where patents have been proliferating at high rates (e.g. software and business method patents)? I look forward to your comments.
Chicago. Tomorrow Night. Blogger Bar Crawl
Posted by Stephen M. Nipper at March 21, 2007 09:38 AM
Matt, Doug and I are going to be in Chicago the next few days for ABA TechShow. Tomorrow night at least one of us will be participating in the TechShow Blogger Bar Crawl that Matt Homann is putting on. If you're an attorney, blogger, law student, et al...and will be in Chicago, look us up.
http://inventblog.com/2007/03/in-chicago-want-to-meet-up-with-some-law-bloggers.html
New FedCirc.us Search Tool Released
Posted by Douglas Sorocco at February 15, 2007 06:29 PM
The master plan for the FedCirc.us site includes several web features designed to deliver patent caselaw information in a more effective manner. The first - the GimmeTen! feature - has quickly become the most popular page on the site...and for good reason. Not familiar with it? Simply bookmark http://10.fedcirc.us and visit regularly. That page always provides concise summaries of the ten most recently posted case reviews. We're confident you'll quickly be hooked.
Today we announce the second feature in our bag of tricks - 
the travelling FedCirc.us search engine. By following the steps below, you'll be able to search the FedCirc.us site from anywhere on the web.
The best part is the simplicity -- 5 easy steps (4 for most people). Five minutes tops.
1. Make sure you're using either Internet Explorer 7 or Firefox 2.0 as your browser. If you're not, download the latest IE here or Firefox here (both are free). For the record, FedCirc.us is optimized for Firefox.
2. Start your browser.
3. Visit FedCirc.us.
4. Pull down the drop-down search box in the upper right hand corner and select "Add FedCirc.us" (in Firefox) or select "FedCirc.us" with the gold star next to it (in IE, see image at right).
5. Surf the web. Whenever you want to search the site, simply enter a search string in the box in the right hand corner, pull down the list, select FedCirc.us, and hit return. 
You can do this from any page on the web...and you'll immediately be transported to a listing of search results from the site.
I've quickly gotten used to searching by party name or full case name as I'm reading on the web. This little trick has changed my surfing habits for the better...it's a wonderfully efficient way to find information quickly. We hope you find it useful as well.
As always, if you have any comments or suggestions, please let us know. You can e-mail Matt directly at jmb @ rtipllc.com.
Enjoy!
New Magazine Covers Federal Circuit Patent Decisions
Posted by Stephen M. Nipper at January 31, 2007 11:28 AM
FedCirc.us (Matt/Doug/I) announced earlier today the availability of a free preview issue (The Resolution) of our quarterly magazine, The FedCirc.us Reader. Download the .pdf here.
The Resolution will give you a sneak-peak at the features of the magazine. It's jam-packed with all sorts of patent-caselaw goodness, including a 'Trend Spotting' article, a featured case review, prosecution- and litigation-focused digests, chronological and alphabetical listings of cases from last quarter (including summaries), and a fun "Quotables" section that includes some of our favorite quotes from cases issued during last quarter.
For this issue, we've even included a brief note about the story behind the FedCirc.us name and domain.
We think you'll agree that the magazine is an exciting and effective new tool for staying current on patent caselaw developments.
Of course, the free preview issue includes subscription details for the magazine. The site will be ready to accept subscription payments starting tomorrow.
Please do download our first copy and let us know what you think.
A Rethink(IP) need: graphic design help
Posted by Stephen M. Nipper at November 30, 2006 03:57 PM
Matt, Doug and I have been talking about creating some novelty T-shirt designs that are patent and IP related.
If any of you are handy enough with Gimp/Photoshop/graphics editing software to make simple designs (nothing too elaborate) and would be interested in helping out, drop me (Steve) a line at: nipper@inventblog.com
It's here...LegalMojo (our jobs board) is Live!
Posted by Stephen M. Nipper at October 3, 2006 11:35 PM
Head on over to www.legalmojo.com for the scoop.
Strong-Non-Obviousness ... Trap? I think so ...
Posted by Bill Meade at September 25, 2006 01:32 PM
Bill Meade
bill@basicip.com
http://www.basicip.com
Q. What makes an invention disclosure easy to file as a patent?
A. Strong-non-obviousness.
What is strong-non-obviousness? It is a surprising way something is done. A disclosure that catches an entire patent committee by surprise in the "never seen anything like it before" way is strongly-non-obvious.
Think of the most surprising invention disclosure you have seen in your career. Think about the meeting you were sitting in when you decided what to do with this disclosure. Did the strong-non-obviousness wake up the participants in an otherwise sleepy meeting? Did the non-obviousness cause exclamations of surprise? How long did it take to decide to file on the strongly-non-obvious disclosure? Once understanding of the idea spread to the entire group, did agreement immediately ensue? Was opinion on filing unanimous? Did the disclosure feel like it was the proverbial needle in a haystack?
I've sat in patent committee meetings reviewing thousands of invention disclosures, and I've often observed strong-non-obviousness to completely disarm otherwise conservative, stodgy, risk-averse, analytical, and independent thinking people. I think strong-non-obviousness CAN BE a trap, and I'd like to explore why. Please comment on this post. I *think* that the effect that strongly-non-obvious IP has is widespread. I'm curious about what your experience is.
A trap? Why? First, because a patent committee's response to a strongly-non-obvious invention disclosures is often automatic. Automatic in the sense that decisions to file strongly-non-obvious disclosures are conditioned by disappointment and cause goal displacement.
When you review one uninspiring disclosure after another you can get hungry to see something great. Something that would make you proud as a patent attorney to have on your resume. Broad, genuinely new, useful, and with non-obviousness that even a *patent examiner* can understand. In fact, you may have caught yourself hoping for an office action stating the invention is obvious. Payback time for that "correction" the ESL examiner made to your EFL English last year.
Inspiration, pride, craft, payback, wow is there a lot of invisible baggage that is carried along with strongly-non-obvious invention disclosures. This baggage can, and frequently does, displace the goal of making a company money with IP, for other intermediate goals. When goal displacement happens because a decision is being made to file a strongly-non-obvious invention disclosure, patent geeks have fun, but shareholders suffer.
The second reason that strongly-non-obvious disclosures can be a trap has to do with the current carrying capacity of patent business processes. The more strongly-non-obvious and idea is, the higher its current. And when an idea's current gets high enough, the governing categories of the IP business process can burn out. If they do, you get thermal runaway.
For example, your company may be in the shoe business, but when you see an idea that is strongly-non-obvious from one of your shoe company employess, and the idea relates to HD DVDs, you will be way more tempted to file on it than you should be. Temptation is a result of high non-obviousness current burning out the category of "company-related" that should be leading to a defensive publication or an inactivation.
All business process categories are at risk from high-current strongly-non-obvous invention disclosures. For example, strong-non-obviousness can short out budgets "This idea is too good not to file!" It can burn out quotas across client organization. Strong-non-obviousness can wreak havoc wherever the phrase "Just one more ..." is listened to.
The final reason I think that strong-non-obviousness can be a trap is that non-obviousness is technical. The way we make money with IP is not just technical, it is technical+economic. My observation has been that strong-non-obviousness of a technical means is UNRELATED to the economic value of the invention.
Now, before you flame me, I must say that I yield to no one in admiration for strongly-non-obvious inventions that are of high economic value. What I'm cautioning against is assuming that because there is technical merit indicated by strong-non-obviousness, there must be economic value. Non-obviousness is a bad (unrelated) proxy for economic value, though non-obviousness is often used as a proxy for economic value in the excitement of an automatic committee decision.
In deciding whether a company should invest in a disclosure, we should measure the value of the patent that would ensue. A patent is valuable because it protects (i.e., reduces frequency of litigation and cost of litigation), because it preempts (opens revenue bearing opportunities, grabs valuable cross-licensing turf), because it promotes a differentiating feature (HP's Ret patent), or otherwise brings value into a company (visualize a net present value cash flow tree 17 years in length).
Strong-non-obviousness can short circuit the calculation of a patent's value, over-writing the economics of deciding on an expensive long-term investment for a company. When strong-non-obviousness does this, it is a trap.
LegalMojo: Legal Jobs Board...coming soon
Posted by Stephen M. Nipper at September 18, 2006 01:03 PM
It's time to move one of our "secret" projects out of the testing phase. 
We (Matt/Doug/I) are excited to announce the coming launch of what we believe will be the premiere job board for legal professionals. LegalMojo will launch later this month and to wit we are seeking job postings jobs for this targeted job board.
We are opening this pre-launch opportunity to the readers of our Rethink(IP) family of blogs, as well as the readers of our blogging/blawging colleagues. This is a fantastic opportunity to get your open position in front of our collective audience of attorneys. Job postings will cover all practice areas (not just intellectual property) and regions in the U.S. We have already had a request to expand our offering to include the UK and Australia. To discuss details and get your posting listed, please contact our jobs board director (vince@legalmojo.com) as soon as possible. If you have a position available in your firm or company, we want to know about it.
If you have any questions about the effectiveness of blog job postings, check out this Fast Company article: Blogs, the other Job Board.
Rethink(IP) is Looking for Help
Posted by Stephen M. Nipper at September 13, 2006 01:52 AM
We're looking for a law student or other individual willing to donate five minutes every business day helping us put together our RSS Mojo feed of USPTO News and Notices (until the USPTO does it itself). It isn't exactly the world's most glamorous job and the pay is non-existent. However, if you'd like an opportunity to work with us (we'll even teach you how to use MoveableType)...drop me a line. nipper@inventblog.com
Where's Waldo?
Posted by Stephen M. Nipper at August 30, 2006 11:39 AM
Like my previous post mentioned, posting has been light here on the Rethink(IP) blog due to the fact that we've been working on a number of side projects: like Lawsuit Mojo, Blawgr and The Other One (as well as two others that should be released within the next month that are below the radar).
Lawsuit Mojo update: thanks to paid subscribers we have just finished having the service totallly recoded in MySQL/PHP. We'll be releasing "version 2.0" in the coming weeks, including the ability to search the database.
Blawgr update: Coding on that beast is wrapping up too. We'll be getting beta test invites out to the original Blawgr users and others in the next (we hope) week or two. Think of the new Blawgr as a cross between Digg, MetaFilter, TypePad and MySpace...for lawyers. It is going to be cool...real cool.
The Other One update: You'll have to read Matt Buchanan's post for the teaser.
Where'd Y'All Go?
Posted by Stephen M. Nipper at August 9, 2006 11:39 AM
Oddly, the more we (Doug, Matt, Steve) blog together here, the less we blog together here. Meaning, we’ve found out that we’re having a tremendous amount of fun building legal communities, tools, and side projects (most of which are still in beta). I would have never predicted it…that Rethink(IP) would be more about those things than blogging, but I think it is currently true.
We have some cool tools/web pages about to be released publicly. Just bear with us. We’ll resume blogging here shortly. ;o)
In the meantime, I’ll leave you with a tease regarding one of the projects: http://blawgreview.blogspot.com/2006/08/blawgr-coming-soon.html
Carnival of the Vanities #196
Posted by Stephen M. Nipper at June 21, 2006 10:19 AM
One Hundred and Ninety-Six? Crikey. That's a heck of a lot of Carnival of the Vanities issues.
Welcome to Rethink(IP)! We're three patent attorneys who blog separately at PHOSITA®, PROMOTE THE PROGRESS® and THE INVENT BLOG, and (of course) together here at RETHINK(IP). We won't bore you with a detailed description of who we are or what we claim to be. Just have it known that we're in the field of patent law and that an object of our work together is to transform the practice of patent law. We'll incorporate a little background material (including links to our most popular posts) by reference, for those of you so inclined.
We will tell you this, though. We're sort of a Carnival enigma. No..no...we're not a freakshow, like the bearded lady or something. We're an enigma...something that baffles understanding and cannot be explained (according to Google, anyways). We keep hosting them - this is the fourth time we've stepped onto the carnival barker's platform, including two editions of the Carnival of the Capitalists. According to some of our critics, though, we're anti-Carnival. Most of that stems from our "rethinking" of Blawg Review #48 (the lawyer blog (blawg) carnival). Apparently lawyer bloggers didn't want to hear it...regardless of our intent in doing it. Oh well...sue us. ;)
The Vanities needs no rethinking. Nope...the Vanities is exactly what it says it is. Pure, unadulterated vanity. Send in a post, and your blog will appear in lights. So...we offer no rethinking this week. Nope...we respect and follow the CotV tradition of posting everything. Absolutely Everything.
This week, Absolutely Everything means the following thirty plus submissions:
The Needle and the Damage Done Madeline Begun Kane, known in the blogosphere as "Mad Kane," writes a notable limerick about Mad Ann Coulter (please excuse all of the Mad's - Ms. Kane's nom de plume got me thinking about General Mad Anthony Wayne, the American General who scored a decisive victory in the Northwest Indian War less than a stone's throw from where one of the Rethinkers is sitting right now). Read the limerick and laugh. If you're a Coulter fan, it might make you a bit mad. Well, I guess maybe if you're Coulter it might make you mad.
Here's a tasty bit...a tasty Bacon Bit to be exact (hey, isn't that a registered mark of some sort?). DL of TMH's Bacon Bits draws a parallel between the cheating husband and republican leadership . Both, apparently, have done so much damage that the wronged wife (the GOP base in the analogy) can't be won over simply with flowers. Nope....the "lawyers' phones are ringing as bags are being packed." Wow...does anyone know if DC requires a separation period?
Mmm...politics. Mr. Right at The Right Place gives us an ode called Ms. American Spy. Michael McCullough at Stingray: a blog for salty Christians gets wound up about Al Gore and some inconvenient truths about global warming. Of course, then there's Below The Beltway's meme on The Flag And Freedom, a lengthy discussion of the history of flag burning and the proposed Constitutional Amendment. Finally, The Radical Libertarian asks whether libertarians against everything? They are apparently not against submitting posts to Carnivals... ;)
Uh oh. The Washington Post featured an essay by Linda Hirshman, author of Get to Work: A Manifesto for Women of the World, that, um, tells women to get to work. Forget the family, pursue an "elite job", and rake in the cash. Leslie Carbone, of the aptly named LeslieCarbone blog, has fired back with a well-written responsive rant that themes with "it ain't all about the money, honey."
Need 10 reasons why allotments should be preserved? Check out "Allotments: Ten Reasons Why Preston City Council Should Not Build Over Them " at Save the Ribble.
Genius! In the business of making medicaments for bad breath? Stop the manufacturing lines immediately....and incorporate this breakthrough idea. Make your product taste like crap. Seriously. Well, um, at least the TamsPalm blog is serious about it . "Revolting taste protects them from getting gobbled up...," which would, of course, defeat the purpose of these products. What? I don't know...at least I know that the post isn't about the religious theory of intelligent design (thanks to the explanation of the title).
Thousands of journalists from across the globe have waited for decades to write about Paul McCartney turning sixty-four. Well, it's finally here. Sir Paul is officially sixty-four and most journalists used the birthday, and the song, to celebrate the life and career of the ex-Beatle. But we're bloggers....we're different. We see things differently. Apparently, we hear things differently, too. To wit...the dustbury blog celebrates Paul's much-anticipated birthday with mocking lyrics that call Paul a bore, long for John's return, and pledge not to buy anymore. Ouch.
Soccer. Football. Hmm...bloggers blogging on it? You bet!. Andrew Ian Dodge at Liberty Cadre has had enough and has instituted a personal boycott, while Mark Rayner asks "Do you have soccer on your home world?" Do you? Maybe Soccer Dad knows....he had a post titled “The critically acclaimed for a plinth.”
Thanks Dad. Of course, Mom wants to tell us all about Four Year Old (Mis)Behavior, Portrait Studios and Pants-Dropping. We guarantee that is the only blog this week using the term "wenis." Lisa (next week's host) at Lil' Duck Duck tells another interesting story in The end of the duck & fried carpet??!! I presume all of those kids know that you should Leave Things Better Than You Found Them. OK, now that you've left things better than you found them, maybe a little staff motivation would be a good idea, or so Wayne Hurlbert at Blog Business World thinks.
Mothers...Fathers...hope you remembered Sunday was Father's Day. Sunday was "also the day of loss of the USS Bonefish in 1945." Jack Yoest had the scoop in Fathers' Day on Eternal Patrol.
A number of blogs took a financial advice theme with their submissions: The AMT – If You're Not Scared, You Damn Well Should Be!, Wire Transfers When Closing on a House, Rate Buydowns, Stock Market Beat: Symantec Leverages Up, Using Mind Games To Stop The Cycle Of Debt. We're not sure if all of that indicates a hot economy or a cold one... I guess we could always start a new charitable organization.
Ooops...I forgot to mention that Free Money Finance raised the question Extended Warranty: Worth the Cost? We’ve always been of the opinion that extended warranties are gambling...and the house always has the advantage. FWIW.
Where are the CotV tech bloggers? Aside from A DC Birding Blog’s test drive of new Internet browser Flock in the appropriately titled: Flock Review, the pickings were quite thin in that area. Maybe tech guys/gals aren’t vain.
The Rethink(IP) guys are science nerds at heart...thus you've got to love a blog writer who goes by GrrlScientist (Living the Scientific Life blog)! The Grrl’s submission to the Car-r-nival: The Rise of The Feathered Dragons.
Finally, three posts that didn't really seem to fit in anywhere else. Makes me want to shout out "Potpourri for $1000, Alex!" First, the death of FTD.com is predicted in: A New Paradigm Replacing the Old. Of course, Western Union is still around (although they did send their last telegraph earlier this year.... Goosing the Antithesis brings up Lovey-Dovey Christianity vs Reality. Last, but not least, Suldog at Suldog-O-Rama gives us "A Recipe.” Good luck finding a pan for that.
And that's a wrap! Next week's host: Lil' Duck Duck.
Announcement: New Weekly Newsletter Covering Trademark Litigation
Posted by Stephen M. Nipper at June 13, 2006 10:14 AM
The fact that a lawsuit has been filed can be an incredibly valuable piece of information, especially in the practice of trademark law. To wit, Rethink(IP) has released a new weekly e-mail newsletter. Called Trademark Lawsuit Mojo, the newsletter consists of a list of Federal trademark lawsuits that surfaced in the previous week.
Why is the existence of a lawsuit being filed such a valuable piece of information?
First, the defendant might not know that he/she/it has been sued!
Your company, or your client, might have no idea that a lawsuit has been filed. How can this be? Remember that in the United States, a plaintiff has 120 days from the date of filing to serve a Complaint upon the defendant(s). To reserve a preferred venue/forum, many times a plaintiff will preemptively file the suit and not serve the Complaint, spending up to the next 120 days putting their case together, acquiring additional evidence, and (sometimes) attempting to settle the dispute.
Knowing that your company or client has been sued (but hasn't been served) can be priceless information when counseling them. How's that for a valuable "heads up?"
Second, the filing of a lawsuit can also be a valuable piece of competitive intelligence.
Knowing that competitor X just sued competitor Y may change discussions you're having with competitor X, Y, and/or A! It could also help in decision-making on several issues, such as marketing and product development. Best of all, it may allow you to monitor the case for information that might be helpful in a variety of situations.
As one reader recently put it:
I subscribed last week and already impressed a client yesterday by being aware of a lawsuit filed by one of its competitors.
You can subscribe to Trademark Lawsuit Mojo using one of the below links. Current rates are $99.99 a year or $9.99 a month. The first three weeks are free (free trial). After the free trial expires you can decide whether you would like to continue your subscription.
We don't expect any of us will be quitting our day jobs anytime soon … commercialization of this project (and eventually Copyright and Patent newsletters) is done to fund the “Rethink(IP) Projects Account” and let us provide additional cool tools and services to the legal community. Apparently computer programmers don’t work for free.
Please contact Stephen M. Nipper at steve@rethinkip.com for additional information.
| $99.99/year | |
| $9.99/mo |
[update: if you'd like to see what our "beta" test of the data looks like, please check out the old site.]
Welcome CotC---Who is Rethink(IP)?
Posted by Stephen M. Nipper at June 5, 2006 06:00 AM
We’re hosting Carnival of the Capitalists (CotC) again (later today). This will be our second time doing so (the first time was back in September).
We’re also sporting a new design (later today we're told)…if you read via RSS you might want to check out our HTML…
Knowing that most CotC readers probably don’t regularly read law blogs…I thought I’d take the time to prepare a “Who is Rethink(IP)?” post…
We were three of the original patent attorney bloggers: Douglas Sorocco (PHOSITA Blog), J. Matthew Buchanan (Promote the Progress blog) and Stephen M. Nipper (The Invent Blog).
When we started Rethink(IP) the blog, we were three competitors blogging together about a topic all three of us were passionate about: farmshoring intellectual property services. Part of the “farmshoring” discussion is complaining about how other attorneys, usually large firm attorneys, (mis)treat their clients…which itself lead us to spend a considerable amount of time “rethinking” how intellectual property services should delivered to clients.
The fact that we were competitors blogging together intrigued Scobel/Israel enough to garner us a mention in Naked Conversations. However, the “competitors” angle soon took a hit when one of us (Matt) joined on of the other’s (Doug) law firm.
We frequently joke that we all have A.D.D., a condition that results in us frequently creating lots and lots of side projects, crazy ideas, and rabbit chasing. Some of our more interesting projects:
1. RSS Mojo – News and Notices: The Copyright Office for a while now has provided an RSS feed of their news. However, the Patent and Trademark Office didn’t have one. We decided that we’d set out to scrape the USPTO’s News and Notices page and craft a number of RSS feeds therefrom. We thought for sure that the USPTO would release their own RSS feed…it is coming up on a year later and it hasn’t happened yet.
2. RSS Mojo – Lawsuits: On behalf of our clients, we frequently compile and review listings of recently filed intellectual property lawsuits. It dawned on us…why not make this data more available to others. So, we created a weekly feed (RSS/email) of recently filed intellectual property (patent, copyright and trademark) lawsuits.
3. IP Memes newsletter. A free electronic newsletter put out every couple weeks by Technolawyer.com. The three of us author the newsletter.
4. Blawgr. With the help of lawyer blawgfather Kevin Heller we launched an online community for lawyers called Blawgr. It is currently offline for a major redesign and repurposing.
5. ShapeBlog. With Marty Schwimmer (Trademark Blog), Glenn Mitchell and John Welch (TTABlog)…a blog about the intersection of 3-D and the law. Fabrication, rapid prototyping, design…and the intellectual property issues they create.
6. Rethink(IP) Aloud podcast. We even podcast…
7. IP Funny (no, it is not a blog about urinary problems). Yep…we’re the anonymous bloggers (along with an anon fourth) behind the frequently neglected blog about intellectual property humor.
8. Esq Gear. Gear, gadgets, product reviews...for attorneys. Big news coming soon for this site...
9. …and a handful of projects we are not ready to mention just yet.
I’ve always loved Stephen @ Patent Barista’s quote about us: “These guys are like the Army. They do more before 9 a.m. than most people do all day.” If we only had more time...
Of course, it IS a blog. I probably should mention some of our more popular posts:
- Pressuring clients for more work...good idea?
- What’s your definition of a rainmaker? Bullshitter?
- Blackballed. You are the brand.
- Controlling RSS Overload…Animal House Style
- Why? Why? Why? Why? Why?
And that...in a nutshell...is Rethink(IP).
Recently on Rethink(IP)'s RSS Mojo Blog
Posted by Stephen M. Nipper at May 29, 2006 11:38 AM
- Listings of recently filed IP Lawsuits
- Trademark Lawsuit Filing Update (through May 27, 2006)
- Patent Lawsuit Filing Update (through May 27, 2006)
- Copyright Lawsuit Filing Update (through May 27, 2006)
- Trademark Lawsuit Filing Update (through May 21, 2006)
- Patent Lawsuit Filing Update (through May 21, 2006)
- Copyright Lawsuit Filing Update (through May 21, 2006)
- USPTO Notices:
- Patent Prosecution Highway Pilot Program between the United States Patent and Trademark Office and the Japan Patent Office (signed 22May2006)
- Notice of Collection of Practitioners’ E-mail Addresses
- Commerce Deputy Under Secretary to Address Midwest Businesses On U.S. Government Efforts to Combat Counterfeiting and Piracy in China
- USPTO Exam Guide for Geographical Indications Used on Wines and Spirits
- Request for Comments on Patents Search Templates (16May2006)
- Commerce Deputy Secretary to Speak at USPTO's Community Day
- U.S. GOVERNMENT BRINGS ANTI-COUNTERFEITING AND PIRACY PROGRAM TO OHIO
Dominant Design and Lost Profits in Creative Labs v Apple Computer
Posted by Bill Meade at May 17, 2006 02:51 PM
By Bill Meade, President – Basic IP Management, Inc.
bill@basicip.com
http://www.basicip.com
James M. Utterback’s (1994) MASTERING THE DYNAMICS OF INNOVATION is one of my favorite books. Utterback has lately been squeezed between Clayton Christensen’s work on disruptive innovation and Geoffrey Moore’s work on market structure and shareholder wealth management. But, I think Utterback deserves reading by patent attorneys.
First, because, Utterback’s book is just plain fun for a technology person to read. It has competition case histories of the typewriter (p. 1), automobiles (p. 34), television (p. 38), transistors (p. 41), calculators, (p. 42), disk drives (p. 46), and many other one-time high-tech industries. Second, I think Utterback deserves reading because his dominant design model has many uses in constructing defenses and offenses in patent litigation.
Utterback is a theorist of how competition grows and declines in an industry. I strongly urge you to buy this book and read for yourself Utterback’s theory (see end notes). I’m going to do a back-of-envelope summary here, to demonstrate how nicely the theory can be applied to patent litigation, specifically, to Creative Labs vs. Apple Computer. And, hopefully, to spark the idea that recent development in economic theory can be handy tools for patent litigators.
Utterback’s Theory: Dominant Designs
As a new technology is developed, entrepreneurs sense its missing features, think of ways to improve the technology, and introduce new products they hope will be differentiated by their improvements. In most new industries the result is that the number of competitors increases over time. What is really going on here is that an adolescent market is searching, groping, and exploring the technology’s capabilities. As people in the market get their heads around the technology, an optimal combination of features becomes clear. This combination is called by Utterback a “dominant design.”
Once a dominant design becomes available, many industries experience a collapse in the number of competitors. The shake-out-precipitating companies are the Microsofts, the Intels, and the Oracles, that benefit from the natural selection of markets. New market natural selection revolves around optimal packages of affordable features.
Two implications of Utterback’s theory that are significant to a patent attorney and patent litigator are:
• Markets are created by systems. Individual features are not enough to generate a new market. To reach critical mass, to precipitate a new market, a system of features is needed to enable new product use-models that can out-compete old use-models. Entrepreneurs like Thomas Edison often understood this. Edison created much more than the light bulb. He designed the light bulb, the generator, the transmission lines, etc. to compete with the gas industry.
• You have to have end-to-end solutions that reliably meet the needs customers find most important.
Example products that conform to Utterback’s theory are the DC3. Peter Senge in THE FIFTH DISCIPLINE (p. 6) listed the 5 components of the DC3 dominant design as:
1. Variable-pitch propeller,
2. Retractable landing gear,
3. Monocque body construction,
4. Radial air cooled engines, and
5. Wing flaps
In 1934, Boeing introduced an airplane similar to the DC3, the Boeing 247 with all of DC3’s components except wing flaps. Unfortunately, the 247 was unstable taking off and landing so as a product, it was not adopted by the market. The next year, however, the DC3 was introduced and it swept the market. “The DC3 was the first plane to support itself economically as well as aerodynamically” (Senge p. 6) and many are still flying in many parts of the world.
Creative Labs vs. Apple
Creative Labs has sued Apple Computer for patent infringement (of US6928433 Automatic hierarchical categorization of music by metadata) in the U.S. District Court for the Northern District of California (case number 3:06-cv-03218-BZ).
David Pogue wrote a great New York Times article on 3/9/2006 (see end notes) which to a reader of Utterback sums up the elements of the iPod’s dominant design at that date. These elements are:
1. Cool-looking hardware.
2. Fun scroll wheel.
3. Simple user interface menu.
4. Great library of add-on accessories.
5. Effortless synchronization.
6. Rock solid integration with an online music store.
The Creative Labs patent can be seen as an attempt to grab the idea behind element #3: Simple user interface menu. The idea is hierarchical menus based on album, genre, artist, etc.
Rating the Products:
Owning both an iPod (20 gig) and a Creative Labs Zen (40 gig) product I would evaluate the products against Pogue’s dominant design elements as follows:
• both the iPod and Zen have cool looking hardware,
• only the iPod has a scroll wheel,
• both iPod and Zen have simple user interfaces,
• the iPod has a vastly superior add-on accessory library,
• the iPod has fantastic synchronization, and the Zen’s synchronization is bad,
• only the iPod has a great integrated music store.
Dominant Design-Based Lost-Profit Argument:
Assume for the sake of argument that the Zen patent is valid, and that it is infringed by the iPod. I have done no analysis of the validity or infringement. For my purposes, I want to explore the concept of dominant design in defending Apple against a lost-profits damages argument by Creative Labs.
A dominant design argument would go like this: “The iPod and Zen products serve 2 completely different markets: the inexpensive stand-alone portable music player market (served by Zen), and the defacto standard portable music player market (served only by the iPod). Because Zen products do not have:
• a scroll wheel (element 2),
• a large library of add-on accessories (element 4), and
• an integrated music store (element 6).
Creative Lab's products serve only the inexpensive stand-alone portable music player market because Zen products do not meet all the market requirements of the defacto standard. If you bought a Zen product for your teenage daughter and saw her disappointment upon opening it, you may have suspected that the iPod and Zen are not substitutes. Dominant design puts theoretical building blocks underneath exactly why products that look the same are not substitutes.
Because the iPod emboides all 6 elements of the dominant design for the defacto music player market, it precipitated the market's formation. Creative Labs is not entitled to lost profits for the defacto standard market. Not entitled because the defacto standard market would not have formed around the Zen products.
End Notes:
Clayton Christensen (2003) THE INNOVATOR’S DILEMMA, Collins Reprint. http://www.amazon.com/gp/product/0060521996/sr=8-1/qid=1147890825/ref=pd_bbs_1/103-5034715-0679031?%5Fencoding=UTF8
Geoffrey Moore (2005) DEALING WITH DARWIN: Portfolio http://www.amazon.com/gp/product/1591841070/qid=1147890923/sr=2-1/ref=pd_bbs_b_2_1/103-5034715-0679031?s=books&v=glance&n=283155
David Pogue (2006) “Almost iPod but in the End a Samsung” NY Times http://www.nytimes.com/2006/03/09/technology/circuits/09pogue.html?ex=1143003600&en=c0b14704defa6610&ei=5070
Peter Senge (1994) THE FIFTH DISCIPLINE, Currency http://www.amazon.com/gp/product/0385260954/qid=1147890981/sr=2-1/ref=pd_bbs_b_2_1/103-5034715-0679031?s=books&v=glance&n=283155
James Utterback (1996) MASTERING THE DYNAMICS OF INNOVATION, Harvard Business School Press http://www.amazon.com/gp/product/0060521996/ref=pd_bxgy_text_b/103-5034715-0679031?%5Fencoding=UTF8
Rethink(IP) friend needs a job!
Posted by Stephen M. Nipper at March 31, 2006 01:03 PM
We need a BIG favor from our readers.
We've got a close friend who has Fortune 50 IP management experience (including managing the business side of litigation, generating IP, building IT infrastructure inside legal departments, raising the patent ranking (number of issued patents) of said big company by 15 places, etc.) that is looking for a job. This guy is educated in a very cross-disciplinary set of technical backgrounds. He is not a JD.
Does anyone have ideas on who needs a creative mover and shaker to get a corporation’s IP program going?
Anyone know of open IP manager positions?
Reply to Steve (snipper+job@gmail.com) if you do and he'll pass the information on.
Thanks in advance!
Rethink(IP): RSS Mojo
Posted by Stephen M. Nipper at March 28, 2006 12:40 AM
The Rethinkers have more blogs than you could shake a stick at. Seriously...
One of them is called the "RSS Mojo" blog. What is it?
RSS Mojo currently has two components: (1) US Patent and Trademark Office News and (2) IP Lawsuit Filing Updates.1. US Patent and Trademark Office News
Unlike the Copyright Office, the Patent and Trademark Office doesn't yet have RSS feeds of their News & Notice's page. We've done it for you. You can subscribe via RSS or via e-mail.
2. Lawsuit Filings
We also provide regular updates of recently filed patent, trademark and copyright lawsuits. They are currently provided for free, but will move to a weekly (subscription only) and monthly (free) model in the next few months. You can subscribe via RSS or E-mail.
Interested? Everything you need to know is right here.
Rollyo + IP Sites + Nuevos = Great IP Searching
Posted by Stephen M. Nipper at March 15, 2006 08:11 PM
Back a few months ago everyone was abuzz with "Rollyo." Rollyo is a website where you can enter your favorite websites into a personalized search engine (ROLLYourOwn search engine or "searchroll"). Neat concept, but after some tinkering creating a "Rethink(IP)" Rollyo page containing all of the Rethinker's favorite IP sites and information...we never created a post for it. Oops. So, here it is: Rethink(IP)'s Rollyo page. Here's an example search: "Patent Troll."
The original sources were thrown together based on my bookmarks/OPML file and at that time I was limited to my top X sites. That may have changed, so Matt, Doug and I will go back and update the sources to make sure they are what we think are the best resources.
Today, I (being a part time Mac user) saw mention of a new (to me) Mac program called Nuevos. Nuevos is a search bar (much like you'd see in FireFox for searching Google/Amazon/eBay/etc.) that lets you search a variety of websites from one box.
Then it dawned on me, what if I added Rethink(IP)'s Rollyo page to Nuevos? So...I did. Now, I can easily search IP sites for a phrase (such as "patent reform") and know I won't be buried in splogs or paid avertisements. Only the sites Rethink(IP) picked will be in the results. Very cool.
Here's the code if you are a Mac user and want to create a Rethink(IP) Rollyo search link for Nuevos:
Rethinking Design and Fab(rication) Law
Posted by Stephen M. Nipper at March 6, 2006 07:05 PM
How many blogs do you need to have before someone does an intervention?
Rethink(IP) is proud to announce our latest collaborative blog, no not that one, but the "Shape Blog."
The Shape Blog is a collaborative effort between at least six IP bloggers: the TTABlog, the Trademark Blog, and Rethink(IP).
Rethink(IP) will be heading up the patent (design and utility) wing of a discussion of the intersection of 3D shapes and the law.
This topic is actually very important. As consumers are able to economically fabricate more and more items at home, IP owners that were previously immune to how consumer technology impacts their bottom line are going to have to pay attention. Think about it. If one could merely download a torrent of a part schematic from the Internet and "print" it on their personal fabrication machine (laser cutter, CNC, etc), why would they ever go buy replacement parts (or the original device in general)? Hmm...much gnashing of IP owner teeth ahead.
Here's the RSS feed: http://feeds.feedburner.com/ShapeBlog
Are you a Blawgr? Wanna be?
Posted by Stephen M. Nipper at February 27, 2006 02:18 AM
Last week Rethink(IP) went public with our latest work. A collaboration with Tech Law Advisor blog's Kevin Heller. Called "Blawgr," it is our attempt at a legal community weblog. This blog, which itself is a collaboration between the writers of the