Posted by: Paul A. Forsyth | January 16, 2014

Assorted IP Links

1. Last week, the Supreme Court granted cert in two patent cases — Limelight Networks v. Akamai Technologies and Nautilus v. Biosig Instruments. Joe Mullin at Ars Technica has a helpful summary:

The first case involves a years-long battle between two competitors in the business of creating Content Delivery Networks, or CDNs: Akamai Technologies and Limelight Networks. CDNs are the Internet infrastructure that allows websites to quickly perform “load balancing” and quickly respond to high demand for their content.

The other case involves medical devices, not the Internet. That case, brought by Biosig Instruments against competitor Nautilus Inc., involves a patent that passed legal muster, even though it hinged on an undefined “spaced relationship” between two electrodes. That made it a poster-child for vague patents. Frequent patent defendants, including Google, Amazon, Newegg, JC Penney, NetApp, SAP America, and Limelight, all urged the Supreme Court to take the case.

See also this post at Patently-O.

2. This Slate article proposes eliminating continuation applications as a way of cutting down on low-quality patents. The article doesn’t mention appeals, requests for continued examination (RCEs), or continuation-in-part applications, but the overall thrust of the article is to make the USPTO more like “[e]very other major patent office in the world,” and thereby curb the power of patent trolls and vexatious litigation.

(It is unfortunate that the article talks in general terms about trolls, which is a term usually applied to non-practicing entities, but the one concrete example of prolonged prosecution — the one example that the author cites as an example of “making minor tweaks to patent claims, hitting the examiner with more paperwork, until the application is approved” — is one of Apple’s patents, US Pat. No. 8,046,721. Regardless of whatever weaknesses that particular patent may embody, and regardless of Apple’s other attributes as a company — not all of them positive by any means — Apple does not fit most common definitions of a patent troll. For starters, Apple actually makes and sells stuff.)

3. The British Library has uploaded over one million public domain images via Flickr Commons. The uploaded images are drawn from 17th, 18th, and 19th century books that have been digitized. Nate Pedersen says, “In an effort to learn more about the images and promote their usage, the British Library plans to crowdsource inventive ways to “navigate, find, and display” the photos. Each image has been tagged with information about its provenance, however there is little to no interpretation of what the images mean. The British Library hopes that users of the collection will help fill in the blanks.” The Library itself says this:

We plan to launch a crowdsourcing application at the beginning of next year, to help describe what the images portray. Our intention is to use this data to train automated classifiers that will run against the whole of the content. The data from this will be as openly licensed as is sensible (given the nature of crowdsourcing) and the code, as always, will be under an open licence.

4. Since it is still Copyright Week, this is an appropriate occasion to link to Deven Desai’s post at Concurring Opinions, “Public Domain? We ain’t got no Public Domain. We don’t need no Public Domain! I don’t have to show you any stinkin’ Public Domain!” The post in turn points us toward Desai’s paper, “The Life and Death of Copyright” (Wisconsin Law Review). From the blog post: “I go over how a few authors rallied with American interests to extend copyright term. I also show that no matter which of the main theories one looks to for IP, none supports copyright after death. None. In other words, folks who usually disagree about all sorts of nuances in copyright, (It’s labor! It’s the personhood! It’s utilitarian!) converge on, or at least have no good support for copyright after death.”

5. Judge Kopf at least is aware of his lack of expertise (“Kopf is patently incompetent”):

Patents are a major component of the lifeblood of our economy. Yet, as a generalist judge with no training in science or engineering and very little experience with the intricacies of patent law, I am entrusted with handling patent litigation. Why does that make sense?

If I screw up, the parties may appeal to the Federal Circuit. The Article III judges on the Federal Circuit often have backgrounds in engineering and science. For example, my friend, Alan Lourie, holds a PhD in chemistry. Others, like Chief Judge Randall Radar, who lack scientific or engineering educations, have nevertheless devoted extensive portions of their professional careers to the study of patent law. If specialized experience with patent law is necessary for the Federal Circuit–indeed, if a specialist Circuit court is desirable at all (and it is)–one must seriously consider why a generalist trial judge like myself, who has handled maybe 10 patent cases over the course of a career, ought to have the authority to adjudicate these types of cases.

Don’t get me wrong. Despite the title of this post, I can learn what I need in order to do a creditable job when I handle a patent case. But truth be told, it requires an enormous amount of effort that tends to significantly depress my ability to get a lot of other work done. Moreover, the chance of error–because each patent case requires relearning a highly specialized area of the law, not to mention the daunting scientific or engineering questions inherent in these cases –rises exponentially when generalist judges handle these types of case. Indeed, in one fairly recent study nearly 35% of decisions on claim construction issues resulted in reversal. See Student Note, Daniel Gopenko, Reconsidering the Standard of Review in Patent Claim Construction, 40 AIPLA Q.J. 315, 324 (2012) (footnote and citation omitted).

I suppose it’s a pipe dream, but it sure would be nice if patent cases were tried by more knowledgeable judges.


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