Sunday, December 28, 2014

Judiciary: Soul of the Constitution

Free and fair judiciary is the soul of the Indian Constitution. By its pro-activeness the Indian judiciary has overcome the orthodox constitutional philosophy and has expanded the scope of right to life so as to read within its compass the right to live with dignity, right to healthy environment, right to humane conditions of work, right to know, right to adequate nutrition and clothing and so on. While dispensing with justice in civil, criminal or constitutional matter a judge not being a party to the Lis always decides the Lis impartially with the best of his ability and knowledge. A judge is deemed to have no knowledge of law but he is enriched by the knowledge of the Learned Councils of both sides. Sitting in the Chair of the Temple of Justice he listens patiently both the parties and comes to a decision which being the toughest job is avoided by the others. While deciding a Lis he cannot satisfy both the parties at a time. Any person being aggrieved by a decision of the court may carry the Lis to the higher forum in appeal or revision or may prefer review of the decision in the same court. This is the eternal beauty of the Indian Judiciary.
Any sort of interference in the functioning of the court in dispensing with justice amounts to contempt; which may be civil or criminal. The Supreme Court being highest body of the Indian judiciary is the custodian of the Constitution and its judgment is binding upon all citizens under Article 141 of the Constitution. Unlike the Supreme Court the High Court of each State is also the Court of Records and enjoys with writ and supervisory jurisdiction under Article 226 and 227 of the Constitution. The Parliament and the State Legislature have right to enact law in their respective field but if such law contradicts with the basic structure of the Constitution or abrogates the fundamental rights guaranteed under Part III of the Constitution the judiciary has right to declare the same as void. That being the settled principle of law it is frequently noticed that some persons constantly attack the judiciary and make indecent statement which knocks down the very foundation of the Indian democracy. It is sadly enough that they are not illiterate or rustic persons but they are educated and sometimes hold responsible status in public life.  
A healthy democracy is a nightmare if Judiciary does not function freely, fairly and independently. To ensure free, fair and independent judiciary the peaceful environment of the court compound is very much essential so that a judge while dispensing with justice remains in peaceful mind and does not face extraneous situation in the court compound. A judge does not fall from the heaven but he is a man of the society with all common virtues of an ordinary man. A chaotic atmosphere inside the court room and also in the court compound distracts the thought-process of a judge. It is therefore, duty of the police to maintain peace and tranquility in and around the court compound. Excepting the Supreme Court and High Courts of different States we hardly find peaceful environment in the subordinate courts particularly the Magistrate Courts.
Recently we saw an unfortunate incident at Alipore Magistrates’ Court which makes this issue afresh. After arrest of one political leader cum minister by the CBI in multi-crores Sarada scam he was taken to produce before the Magistrate’s Court. Thousands of his supporters and party members came on the street, blocked all the public roads and railway tracks in protest of such arrest ignoring the sufferings of the people. Such acts are not only offences under Indian Penal Code but also offence under the provisions of the National Highway Act. The situation turned worst when the Chief Executive of the State joined hands with the law breakers. A panicky situation was also created inside the court compound by unlawful assembly of thousands of unruly persons in presence of police with shouting and slogans as if the court compound was situated in the State of lawlessness. Similar situation was also noticed inside the court room. Such a horror atmosphere is not congenial to a judge in dispensing with justice. It is no doubt an attempt to terrorize a judge by way of power projection which amounts to criminal contempt of the court also.
What wrong the CBI did? Has the CBI been ordered by the Central Government to investigate the Sarada Scam to malign the State Government? No. It is the Supreme Court of India that entrusted the CBI to investigate the Saradha scam spreading over not only in the State of West Bengal but in the States of Tripura, Assam and Orissa also. If the State machinery feels that the CBI has not been working in accordance with law it may approach the Supreme Court for suitable direction upon the CBI. Instead of doing so demonstration in front of the office of the CBI under the leadership of a State Minister and paralyzing the State in protest of arrest of their leader cum minister are ultimately an act of challenging the authority of the highest Court of India and also interference with independent functioning of the judiciary which will not be approved by any civil society. It is very sad to say that the innocent people were led to rise voice on the street by some persons with vested interest in favour of a person who is not only an accused of economic offence but who destroys the trust of the common people also under the cover of the constitutional oath.

Government to strengthen criminal justice system

Government to strengthen criminal justice system

Toyo sues Toyomoto for trademark infringement

Toyo Tire & Rubber Co. Ltd. and its U.S. subsidiaries are suing Japan Toyomoto Tire Corp. and its affiliates for infringing the Toyo trademark.
At the same time, Toyo reported the U.S. District Court for the District of Nevada has issued a permanent injunction against Toyama Tyre Corp. Ltd. in a similar trademark infringement case filed last November.
Toyo filed the action against Toyomoto, which it calls a Chinese corporation, in the same court in Nevada, where both companies exhibited at the recent Specialty Equipment Manufacturers Association trade show in Las Vegas.
In the complaint, Toyo Tires alleges that Toyomoto is marketing and selling tires using the Toyomoto mark, related domain names, and logos in direct infringement of Toyo Tires’ long established Toyo trade name and trademark.
The complaint states: “Defendants… have intentionally adopted the Toyomoto mark to take advantage of the tremendous reputation and goodwill of the famous Toyo marks, and continue to do so knowing of the irreparable harm that they have caused and will continue to cause Toyo, its marks, and the public.”
The court issued a preliminary injunction against Toyomoto on Nov. 12, stating: “The Toyomoto mark is confusingly similar to the Toyo marks, and the defendants are using the mark for the same goods covered by Toyo’s trademark registrations. In addition, defendants are claiming that they are a Japanese company, (which is likely to exacerbate confusion with Japan-based Toyo), even though defendants are China-based companies.”
The court’s ruling means Toyomoto is preliminarily enjoined from using the Toyomoto mark in commerce, including the sale, distribution, promotion and advertising of tires bearing the Toyomoto mark.
Toyo is seeking permanent injunctive relief to prohibit Toyomoto from continuing to infringe on Toyo Tires’ intellectual property rights, together with other corrective relief, including destruction of infringing products and materials, and recovery for damages arising from Toyomoto’s actions.
Toyomoto is a trademark belonging to Kabusikiki Kaisha Tokyo Nihoon Rubber, a Tokyo-based company founded in 1985 by Takahasi Takuo. The site attributes the name to Mōri Toyomoto, a 15th century warlord of the province of Aki.
Takuo later established Japan Toyomoto Tire Corp. and introduced the tire brand in 2011. The site also lists three subsidiaries: Toyomoto (Beijing) International Trading Co.; Toyomoto Tire (U.S.) Inc.; and Toyomoto OTR Division.
Neither Toyo nor Toyomoto identifies the Chinese manufacturer of the Toyomoto brand, but Toyomoto on its website states it has its own tire manufacturing technology and claims to be supplying technology and know-how to an entity it identifies as Saudi Company for Tyre Manufacturing, which Tyomoto claims is setting up a tire production unit in the Gulf States.

Classified Patents, Nintendo, Amazon: Intellectual Property

Maryland inventor has asked a court to clarify whether his patent applications are classified.
Frank Joseph Trunk III of Gaithersburg, Maryland, sued in federal court in Washington, saying he filed patent applications in the area of physics and material physics beginning in 1994. The applications were related to engineering design, “both civil and military,” he said in court papers.
Beginning in January 2000, he said, his applications were made subject to a secrecy order on aircraft and ship stealth technology, submarine stealth technology and nuclear-weapon design. Trunk said he had never been issued a security clearance nor had he ever been granted contractor status that would enable him to get a security clearance.
As a result, he claimed, he was placed under the threat of possible criminal violations for possession of classified information without a security clearance. In his complaint, Trunk said his various attempts over the years to get clarification of his patent applications’ status have brought him contradictory responses. As a result, Trunk said, he has had to forgo possible consulting arrangements with NASA and its contractors because he believes he cannot discuss or disclose the information in his applications.
He asked the court to rule on whether his applications are still classified or if they have been declassified, whether property declassification procedures have been followed and if he is authorized to have access to that information.
Trunk also is seeking a list of agencies that consider the information still classified and a statement of the conditions under which the information may be disclosed.
When he filed his complaint Dec. 8, he asked that the entire case be sealed. The court rejected that request, saying Trunk failed to provide support for his motion to seal “as it is unclear whether the government ever classified the patent applications to begin with.” The court ordered the Trunk’s complaint and the entire case be unsealed.
According to the database of the U.S. Patent and Trademark Office, there is one published patent application -- 20050032029 -- with a Frank J. Trunk listed as the inventor. The application covers a method of solving engineering design problems related to stress, strain and deformation of viscolastic materials, those having viscous and elastic properties. It was submitted in July 2001 and not published until February 2005. It lists an address in Houston for the inventor.
Gary Hnath of Chicago’s Mayer Brown LLP, counsel for Trunk, said in an e-mail this application was originally classified and his client is seeking clarification on whether it has been properly unclassified.
The case is Trunk v. Mabus, 1:14-cv-02139, U.S. District Court, District of Columbia(Washington).

trademark infringement cases can be decided by USPTO

The way that trademark disputes are fought may be in the balance on Dec. 2, 2014, when the U.S. Supreme Court hears oral arguments in B&B Hardware, Inc. v. Hargis Industries, Inc. Briefing is now complete on whether an administrative decision by the Trademark Trial and Appeal Board (TTAB) of the U.S. Patent and Trademark Office refusing (or canceling) registration of a trademark on the basis of likelihood of confusion (under Section 2(d) of the Lanham Act) should be binding in subsequent trademark infringement litigation directed to use of the same mark.
To find trademark infringement, a district court must find a likelihood of confusion about the source of goods or services. Each court uses a rubric to analyze this, and the TTAB uses a different rubric to assess likelihood of confusion in the Section 2(d) context. But courts in different circuits already use different rubrics to assess likelihood of confusion (some treating it as a question of law, others treating it as a question of fact, and most using their own iteration of factors to be considered), and a final decision from one circuit will nonetheless bar re-litigation of likelihood of confusion in other circuits. B&B says that a TTAB Section 2(d) finding should be treated the same way, and the government supports that position.
Decisions of federal agencies are sometimes given preclusive effect in the district courts. Hargis says that wasn’t Congress’ intent here. Because likelihood of confusion is often the key to a trademark infringement claim, preclusion would render trademark infringement actions pro forma, Hargis argues. Often, but not always. Proving infringement also requires proof that the plaintiff has rights that can be enforced against the defendant, and that isn't always a trivial issue. In B&B itself, Hargis began using its mark before B&B registered its own mark, and if B&B’s mark wasn’t recognized as a mark before Hargis began its use, then Hargis might be permitted to continue its use despite a likelihood of confusion.
TTAB decisions on registrability are reviewable de novo in the district courts, and Hargis says that shows that Congress didn’t intend for TTAB decisions to have preclusive effect. Issues of registrability are the TTAB’s bailiwick, and it would seem incongruous that a TTAB finding on registrability would be reviewed de novo by a district court, while a TTAB finding on likelihood of confusion — the lynchpin of most infringement claims, which are outside the TTAB’s jurisdiction — would be binding on the same court. That compares apples to oranges, however. A TTAB finding on registrability is only subject to de novo review as part of the appeal process. B&B isn’t arguing that a TTAB decision that is still subject to appeal should be binding on the district courts.
Preclusion would deprive accused infringers of their right to a jury trial. But bench trial decisions do sometimes preclude re-litigation even when there was a right to a jury trial. That doesn’t happen when the issue is a question of law, Hargis argues, and, as noted above, some circuits characterize likelihood of confusion as a question of law. Again, however, other circuits treat it as a question of fact, and decisions of administrative agencies on fact issues are sometimes given preclusive effect, or at least deferential, effect.
Preclusion doesn't apply if the issues are different, and Hargis suggests that comparing a finding of likelihood of confusion in the TTAB’s 2(d) context to a finding of likelihood of confusion in an infringement case is like comparing “guilty of robbery” to “guilty of murder.” Comparing “guilty of robbery” to “guilty of murder” is probably more like comparing likelihood of confusion to a different Lanham Act concept: likelihood of dilution.
But focusing on the phrase “likelihood of confusion” alone is too narrow, Hargis says. Infringement requires a likelihood of confusion resulting from a use in commerce, while a Section 2(d) refusal does not require that either mark be actually used. However, the difference in language might be a simple reflection of Congress’ limited power to regulate the use of marks under the commerce clause.
The facts look bad for B&B: Two different juries found in Hargis’ favor, and B&B was admonished below about its litigation tactics. So a quick affirmance shouldn’t be surprising. On the other hand, the Court might decide whether likelihood of confusion is a question of fact or a question of law on its way to resolving the Seventh Amendment issue, and the possibility of a reversal on the merits — with its attendant consequences on how trademark battles are fought — can’t be dismissed.

Saturday, December 27, 2014

An acquittal should be an order of simple acquittal: Madras High Court

Setting aside a Magistrate court finding, the Madras High Court has made it clear that an acquittal shall be an order of simple acquittal of an accused in a criminal case where there is no evidence against him and trial courts shall not employ expressions such as "not proved beyond reasonable doubt."
A perusal of the judgment of the trial court would go to show that no one has spoken anything incriminating about the accused. Therefore, the trial court should have acquitted him by recording an order of acquittal without adding any adjectives such as 'not proved beyond reasonable doubt' or 'by giving the benefit of doubt,' Justice S.Nagamuthu said. "The trial court should have acquitted the accused simpliciter without adding any qualification to the word 'acquittal,' the judge said.
Justice Nagamuthu was setting aside the finding recorded by the Judicial Magistrate II of Panrutti in which he had acquitted one E.Kalivarathan saying Kalivarathan was acquitted because the charges against him have not been proved beyond reasonable doubt. Kalivarathan was an accused in a criminal case with eight accused whereas no witnesses implicated him in any manner with the alleged crime in the case. The Magistrate acquitted all the accused including Kalivarathan giving benefit of doubt.
When Kalivarathan applied for the post of Grade II constable the recruitment board rejected his candidature on the ground that the acquittal was not a 'honourable acquittal.' Hence Kalivarathan filed a criminal revision petition to convert the acquittal as an honourable acquittal.
"If there are findings in the order or judgment of acquittal, which are adverse to the interest of the accused, as an aggrieved person, he should have the remedy to get the adverse findings set aside.If the accused does not get this finding expunged, he may have to carry the stigma about his character throughout his life. This would certainly result in civil consequence as it relates to his moral character." The judge rejected the contention of the Additional Public Prosecutor that an acquitted person does not have a right of appeal. "Section 397 of the Code of Criminal Procedure paves the way for an acquitted person to challenge the adverse remarks made against him,and the adverse findings made against him in the order of acquittal," the judge said.
The Judge referred to the order of a Division Bench of the court which dealt with a similar case in which it was referred to the bench to decide whether a criminal court can employ the expression 'Honourable Acquittal' while acquitting an accused. In his order, the judge said "the answer given by the Division Bench to two questions which were not at all referred, will have no binding force on me, even though I do not have much of different view than the view taken by Division Bench."
"The Division Bench has not dealt with the difference between an acquittal in simple terms and an acquittal by extending the 'benefit of doubt'." "There is a vast difference between these two. If there is no evidence at all against the accused in support of charge it is mandatory for the court to record an 'order of acquittal," the judge said.
The judge said as per the Criminal Procedure Code, there are only two provisions under which it should be a 'judgment of acquittal' and 'judgment of conviction.' Stating that the criminal courts can use the expressions 'beyond reasonable doubt' or 'giving benefit of doubt', the judge said they are not free to use these terms inappropriately when the accused is acquitted on the ground that there is no evidence against him. The judge then made it clear that the accused who is aggrieved by the adverse remarks made by the court is entitled for the appeal or revision to expunge the remarks under sections 397 and 401 of CrPC.

Monday, September 15, 2014

The just concluded visit of Australia’s Prime Minister Tony Abbot to India has reinvigorated mutual relations already thriving since the visit of former Australian PM Julia Gillard to this country some two years ago. As both the countries share...

The just concluded visit of Australia’s Prime Minister Tony Abbot to India has reinvigorated mutual relations already thriving since the visit of former Australian PM Julia Gillard to this country some two years ago. As both the countries share...

Merits & Demerits of Foreign Direct Investment

Foreign direct investment is the direct investment into a business or sector by a company or individual from another country, differing from portfolio investment, which is a more indirect investment into another country’s economy by means of financial instruments such as stocks and bonds.

There are various forms and levels of foreign direct investment, depending on the type of company or companies involved, and the reasons for investment. A foreign direct investor may buy a company in the target country, set up a new business, or expand the operations of an existing business. Other forms of direct foreign investment include the incorporation of a wholly owned subsidiary or company, the acquisition of shares in an associated enterprise, or participation in an equity joint venture across international boundaries.

It can stimulate the economic development of the country in which the investment is made, creating both benefits for local industry and a more conducive environment for the investor.
It will usually create jobs and increase employment in the target country.
It will enable resource transfer, and other exchanges of knowledge whereby different countries are given access to new skills and technologies.
The equipment and facilities provided by the investor can increase the productivity of the workforce in the target country.

Foreign direct investment can sometimes hinder domestic investment, as it focuses resources elsewhere.
Occasionally as a result of foreign direct investment exchange rates will be affected, to the advantage of one country and the detriment of the other.
Foreign direct investment may be capital-intensive from the investor’s point of view, and therefore sometimes high-risk or economically non-viable.
The rules governing foreign direct investment and exchange rates may negatively affect the investing country.
Investment in certain areas is banned in foreign markets, meaning that an inviting opportunity may be impossible to pursue.

Expanding your business abroad, buying into a foreign company or otherwise investing into another country’s economy can be extremely financially rewarding, and may provide your organisation with the boost it needs to jump to a new level of success. However, direct foreign investment is also fraught with risks, and it is vital to investigate and assess the economic climate thoroughly before venturing into such an investment.
This is where your organisation can benefit from hiring a financial expert accustomed to working internationally – he or she will be able to give you a clear and thoroughly researched picture of the prevailing economic landscape in your target country, as well as monitoring the stability of the market, and predicting its future growth.
We live in an increasingly globalised economy, which means that foreign direct investment is becoming a more and more accessible option. Potential foreign direct investors, with the right expertise and planning, will find that the world is their oyster.


Sunday, September 14, 2014

Software patents are crumbling, thanks to the Supreme Court

The Supreme Court's June ruling on the patentability of software — its first in 33 years — raised as many questions as it answered. One specific software patent went down in flames in the case of Alice v. CLS Bank, but the abstract reasoning of the decision didn't provide much clarity on which other patents might be in danger.
Now a series of decisions from lower courts is starting to bring the ruling's practical consequences into focus. And the results have been ugly for fans of software patents. By my count there have been 11 court rulings on the patentability of software since the Supreme Court's decision — including six that were decided this month.  Every single one of them has led to the patent being invalidated.
This doesn't necessarily mean that all software patents are in danger — these are mostly patents that are particularly vulnerable to challenge under the new Alice precedent. But it does mean that the pendulum of patent law is now clearly swinging in an anti-patent direction. Every time a patent gets invalidated, it strengthens the bargaining position of every defendant facing a lawsuit from a patent troll.
The end of "do it on a computer" patents
In the late 1990s and early 2000s, the Patent Office handed out a growing number of what might be called "do it on a computer" patents. These patents take some activity that people have been doing for centuries — say, holding funds in escrow until a transaction is complete — and claim the concept of performing that task with a computer or over the internet. The patents are typically vague about how to perform the task in question.
The Supreme Court invalidated a patent like that in its decision this year. The patent claimed the concept of using a computer to hold funds in escrow to reduce the risk that one party would fail to deliver on an agreement. The Supreme Court ruled that the use of a computer did not turn this centuries-old concept into a new invention.
That has emboldened defendants in cases involving similar patents. And in recent weeks, the courts have been following the Supreme Court's lead and ruling that these patents are illegal:
·         On July 6, a Delaware trial court rejected a Comcast patent that claimed the concept of a computerized telecommunications system checking with a user before deciding whether to establish a new connection. The court noted that the steps described in the patent could easily be performed by human beings making telephone calls.
·         On July 8, a New York court invalidated a patent on the concept of using a computer to help users plan meals while achieving dieting goals. The court was unimpressed with the patent holder's argument that some of the details in the patent — such as the use of "picture menus" to choose meals — was sufficient to render it a patentable idea.
·         On July 17, the Federal Circuit Appeals Court (which is in charge of all patent cases) rejected a patent on the concept of keeping colors synchronized across devices by building a profile that describes the characteristics of each device. The court held that the creation and use of these profiles were merely mental steps that could be done by a human being and were therefore not eligible for patent protection.
·         On August 26, the Federal Circuit rejected a patent that claimed the concept of running a bingo game on a computer. "Managing the game of bingo consists solely of mental steps which can be carried out by a human using pen and paper," the court ruled. Converting that process into a computer program doesn't lead to a patentable invention.
·         On August 29, a California court struck down a patent on a method of linking a mortgage line of credit to a checking account. The court said that the generic computer functions mentioned in the patent were not enough to merit protection.
·         On September 3, a Texas trial court invalidated a patent on the concept of using a computer to convert reward points from one store to another. The court held that the "invention" claimed by the patent "not fundamentally different from the kinds of commonplace financial transactions that were the subjects of the Supreme Court’s recent decisions."
·         In a second September 3 decision, a Delaware trial court rejected a patent on the concept of an intermediary selectively revealing information about two parties to each other — using a computer. The court noted that it has long been common for corporate headhunters to withhold certain information about an employer from potential employees (and vice versa) until both parties are ready to proceed.
·         On the same day, the same Delaware court invalidated a patent on the concept of using a computerized system to "upsell" customers who buy one product on other products that might interest them. The court pointed out that upselling is as old as commerce itself.
·         In a final decision the same day, the Federal Circuit appeals court struck down a patent that claimed the concept of using surety bonds to guarantee a transaction — using a computer. The court pointed out that surety bonds have been around since ancient times, and performing this well-known transaction with the help of a computer doesn't turn it into a patentable invention.
·         On September 4, a California trial court rejected a patent on the concept of using a computer network to ask people to do tasks and then wait for them to do them. The court pointed out that people have done this with telephones for decades, and that doing the same thing over the internet doesn't count as an invention.
·         On September 11, a Florida court invalidated a patent on the concept of subtracting a small amount of money from each of many payments in order to accumulate a larger sum of money — using a computer. The court noted that this kind of schemes has been widely known for centuries. For example, the plot of Superman III involved a villain using this kind of scheme to steal from co-workers' paychecks.
These rulings might seem like common sense, but it's important to remember that every single one of these patents was examined and approved by the patent office. That's because until recently, this kind of "invention" was considered eligible for patent protection. The patent office has issued hundreds of thousands of software patents over the last two decades, and many of them look like this.
But now the courts are sending a pretty clear message: you can't take a commonplace human activity, do it with a computer, and call that a patentable invention.
For example, recent court rulings could make it easier to challenge Amazon's infamous patent on 1-click shopping, which claims the concept of ordering things over the Internet with a single click. The steps described in the patent — receiving an order from a regular customer, retrieving pre-stored shipping information for the customer, shipping the item to the customer — have been performed by delivery businesses for decades. If Amazon's patent were challenged, courts might be skeptical that performing these steps on a computer constituted a patentable invention.
Software patents in danger
The recent string of decisions invalidating software patents on subject-matter grounds is unprecedented. This chart, based on data from Lex Machina,  shows the number of subject-matter decisions the courts made between 2007 and 2013:

The 14 patents the courts invalidated on subject matter grounds in 2013 was a record for recent years (such decisions were rare in the 1990s and early 2000s). And this chart reflects decisions on all types of patents, not just software patents. With 11 software patents invalidated in just the last three months, the courts are on track to blow away last year's record with software patent cases alone. So this is the most hostile the courts have been to software patents in at least two decades.
The real question is how far the courts will take this logic. Because strictly speaking, all computer programs perform sequences of mathematical operations that could — in principle — be performed by a human being. As the legal scholar Robert Merges has noted, the logic of the Supreme Court's Alice ruling could call almost all software patents into question.
"My immediate reaction was that this would be extremely bad for software patents," patent attorney Gene Quinn wrote last week of the Alice ruling. He interviewed patent scholar Mark Lemley. While Lemley doesn't think all software patents are invalid, he predicts that "a majority of the software patents being litigated right now" will be found invalid based on the Supreme Court's precedents.
There are hundreds of thousands of software patents on the books, so the courts won't be able to invalidate all of them. But if patent holders continue their losing streak of recent months, it will dramatically shift the balance of power between plaintiffs and defendants. Software patent holders will know that if they take a case to trial, there's a high probability that their patent will be destroyed — meaning they not only lose that case but also lose the ability to use the patent against other defendants. That will make plaintiffs — and especially trolls wielding patents of dubious quality — more gun-shy, giving defendants a lot more bargaining power.
Research shows that patents on software are particularly prone to litigation. There are several reasons for that:
Software patents can be extremely broad. For example, a famous patent covers the concept of purchasing products online with one click. Another patent owned by a troll called MPHJ has a patent that covers the concept of scanning documents to an email address. This kind of broad patent makes it easy for businesses to infringe by accident.
Most companies aren’t just users of software, they also have IT departments and web developers that produce it. So firms that wouldn’t otherwise have to worry about patent law are at risk of infringing software patents.
Software is extremely complex. Computer programs contain thousands, and sometimes millions, of lines of code. Since patents can be infringed in just a few lines of code, there’s no practical way for companies to figure out which patents their software products might be infringing.

Legal Battle Over Alleged Patent Infringement Continues

Legal Battle Over Alleged Patent Infringement Continues

Christopher Boyle has joined his father, Mike Boyle (doing business as Surface Dynamix) inresponding to GlasWeld’s motion for a default judgment in the alleged patent infringement lawsuit playing out in the Oregon court system. GlasWeld, in turn, replied in support of its motion for default judgment. And Mike Boyle then asked the court to bifurcate the trial, or split it into two parts.
“The motion set forth by the plaintiff [for default] is riddled with inaccuracies and outright lies, along with running contrary to multiple statements made by the plaintiffs about the timeliness and efficacy of motions in these proceedings,” Christopher Boyle claims in his reply to GlasWeld’s motion for default judgment.
“Starting with LR7-1(a) Certification to satisfy local rules, the plaintiffs made no good faith efforts to confer with me, defendant Christopher Boyle,” he goes on to claim. “The plaintiffs are of the obvious impression that Mike Boyle and myself are aligned and that Michael Boyle speaks for me. The plaintiffs quickly filed this motion [for default] after receiving a response from Mike Boyle without waiting any reasonable time for a reply from me, Christopher Boyle. Obviously, as this motion is unfounded, my response would have been to object; however, that doesn’t allow the plaintiffs the opportunity to forgo the rules set forth by this court and go beyond ethical boundaries and lie to this court about their actions and the actions of defendants. This alone should be grounds for the court to deny the plaintiffs motion-at-issue and impose some form of sanctions.”
In GlasWeld’s reply in support of a motion for default, the company’s attorneys’ claim, “Since GlasWeld filed the motion on July 24, 2014, more than six weeks have passed. During that time, defendants Mike Boyle and Christopher Boyle have made no effort to address the discovery violations and deficiencies identified in the motion. Their respective oppositions similarly make no effort to address or explain any of the numerous discovery violations and deficiencies. Instead, defendants blame GlasWeld for their own refusal to obey this court’s orders and the Federal Rules of Civil Procedure.”
“[N]either defendant has made a good faith effort to meet their discovery obligations,” the attorneys claim. “And both defendants continue to claim ignorance as to what those obligations are despite the fact that GlasWeld’s motion has set out the same. Accordingly, the court should grant GlasWeld a default judgment as to both defendants.”
Mike Boyle has, in turn, asked the judge to split the legal dispute into two different trials.
“Defendants Mike P. Boyle and Christopher M. Boyle move this honorable court for an order pursuant to Rule 4261 bifurcating the trial of Count VI (unfair competition) from Counts I through VI (patent infringement),” Mike Boyle writes in his latest court filing.
“[T]here can be no doubt that allowing the unfair competition claim to be tried to a jury along with the patent infringement issues, will substantially extend the time, complexity and cost of the trial,” Mike Boyle claims. “There is also the great likelihood of confusing the jury and unfairly prejudicing the defendants who will have to combat even baseless allegations of bad conduct while simultaneously proving that their products are not infringing.”
The judge has not issued any new decisions at press time.

Human DNA belongs to no one, it shouldn't be patented

The Australian federal court ruled that isolated human genetic material can be patented. The US supreme court disagrees – and the Americans got it exactly right.
In June 2013, the US supreme court held that mutant BRCA 1 human DNA, isolated from the human body, is not a patentable subject matter under US patent law. Last Friday, an Australian full federal court held that it is patentable subject matter under Australian patent law.
It would have been simple to distinguish the US supreme court’s decision on the basis that patent laws between the two countries differ: different legislatures, different statutes, different jurisdictions. Instead, the Australian full federal court took an unprecedented swipe at the US Supreme Court by suggesting that all nine justices of US supreme court had misunderstood the facts, the science and the law.
How did this happen?
To understand it, we have to go back to June 1988 when representatives of the European, Japanese and US patent offices came to an understanding about what to do with patents over DNA. It was less than two years after Genentech Inc had floated on the American stock market. Recombinant technology, invented by Professors Boyer and Cohen, enabled the production of pure human proteins using human sourced DNA. Patents granted over isolated human genetic material extracted from the human body, much like mining claims over alluvial gold, spurred a DNA gold rush.
Patent offices and patent attorneys and their customers, patent monopolists, wanted to cash in. Patent monopolies provided the perfect means to maximise revenues.
It did not take long before the first patent cases over disputed territory came before the courts. In 1989 in Britain, the court of appeal held that DNA was a discovery of nature and invalidated Genentech’s patent claims to the isolated DNA of human tissue plasminogen activator, a naturally produced human protein.
The European Patent Office, which had already granted patents over isolated DNA, was shocked by the British rebuke. It took immediate action. By 1998 the European parliament passed the European biotechnology directive, ensuring that the European Patent Office’s approach was mandated as law throughout the EU.
In the US, the Patent Office which had implemented the tripartite patent policy was granting thousands of patents over isolated human DNA. The policy had become entrenched around the world. It was wrongly assumed to be consistent with US patent law. In 1980 the US supreme court held that “anything under the sun made by man” was patentable, upholding a patent application to genetically modified bacteria that degraded crude oil.
By 2005 over 20% of the human genome was the subject of US patents.
Then in March 2010, the first shockwave hit the global biotechnology industry. A US district court judge held the patent claims over isolated BRCA genetic mutations invalid. They were not inventions. An appeal to the US federal circuit soothed fragile nerves. Then, a second US federal circuit appeal seemed to settle the issue. However, the US supreme court overruled it.
The US Supreme Court held that the isolation of DNA from a human being does not result in something that displays “markedly different characteristics from any found in nature”. It is not the same as a genetically modified bacteria that degrades crude oil. While that bacteria is the product of human ingenuity, the isolated BRCA gene mutations are not.
Since then, the US Supreme Court has been savaged by the patent monopolists. The US Patent Office, which has issued new patent examiner guidelines consistent with the decision, has been vilified.
Patents over human DNA, a material that nobody invented, will, as the US justices’, warn: “impede the flow of information that might permit, indeed, spur, invention.”
The Australian judges, in contrast, argue that: “This case is not about the wisdom of the patent system ... It is not about whether, for policy or moral or social reasons, patents for gene sequences should be excluded from patentability.”
Americans are now free to use DNA to develop new products. Australians are not. Neither are Europeans.
Which is the more desirable policy outcome?
I believe the US supreme court got it exactly right.
The British Statute of Monopolies of 1623, the first statutory expression of English patent law, was a product of economic policy. It sought to provide the ingenious with free and unfettered access to the store of common knowledge and property so as to reward the act of true invention. Human DNA regardless of its form, belongs to no one. No one invented it. And no one should be able to patent it.

Consumer Products being watched by Big Companies Like Hawks

Everyone deals with trademarks on a daily basis. Trademarks are everywhere. They are in your kitchen, in your bathroom, in newspapers, in magazines, in restaurants, in department stores, on television, on radio — even on benches and buses. As consumers, our purchasing decisions are constantly influenced by trademarks. Everyday each of us encounters hundreds of trademarks. A trip to a grocery store or mall will put you in contact with thousands of trademarks in just one visit. As business people, we need a better understanding of why trademarks are so important to effective commerce and how to protect ourselves.

Venice Cookie Co. Forced To Rebrand Their Chocolate Chews

First it was Conscious Care Cooperative and TinctureBell. Hershey, the national candy company, didn’t like the names Reefer’s Peanut Butter Cups, Mr. Dankbar, Ganja Joy, Dabby Patty and Hasheath bars, alleging the names were too similar to their own Reese’s, Mr. Goodbar, Almond Joy, York Peppermint Pattie and Heath. Most recently, Venice Cookie Company found itself in a conflict with Tootsie Roll Industries.
After receiving a letter demanding they quit selling their chocolate chews under the name “Tai’s Cute lil’ Tootsies,” the Venice Cookie Co. quickly got to work on rebranding their product as “The 4.20 Bite.”
Do consumers really believe Hershey or Tootsie Roll Industries is making marijuana-infused candy? I don’t think so, and I don’t think these companies do either. However, the simple fact that consumers will seek out certain products, or even avoid certain products, depending on the trademark, creates a strong argument for brands looking to protect their pre-existing trademarks.
Generally, to win a trademark claim for infringement, the suing party (the plaintiff) must establish that (1) the mark is valid and legally protectable; (2) the mark is owned by the plaintiff; and (3) the party being sued (the defendant) is likely to create confusion concerning the origin of the goods or services by use of its mark to identify goods or services.

Important Factors To Consider When Comparing Trademarks

When determining likelihood of confusion, courts use several factors derived from a 1961 case. Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir. 1961).  These factors, sometimes known as the “Polaroid factors” may vary slightly as federal courts apply them throughout the country. The factors are intended as a guide.  Let’s break down a few.

Strength of the Mark

A mark is “weak” if it is descriptive and has not acquired sufficient secondary meaning. A mark is “strong” when it has acquired secondary meaning, or if it is arbitrary, fanciful or suggestive.  Let’s face it who hasn’t used the word “tootsies” to refer to toes.  Kenny Morrison, co-founder of The Venice Cookie Company even says he was inspired to make this product when he saw cute lil’ baby toes.  I know I personally say “tootsies” when I see cute, little baby feet.  It makes perfect sense to me why The Venice Cookie Company would pick the term “tootsies.”  Look at the chews, they look like fat, pudgy toes.

Similarity of the Marks

As a general rule, marks must be compared in their entirety, including appearance, sound, connotation, and commercial impression.  OK, I’ll give Tootsie Rolls a little weight on this one.  TOOTSIE versus TOOTSIES.  Tootsie Roll Industries was fortunate that Stern & Saalberg Company realized the value of trademarks and obtained a federal registration for the mark TOOTSIE back in 1909.  Title eventually ended up in the name of Tootsie Roll Industries, although it is not clear how from the chain of title recorded at the United States Patent & Trademark Office.  Tootsie Roll Industries has since registered the mark TOOTSIE in other formats and for various goods.  I  wonder  how many people actually refer to the candy as TOOTSIE separate and apart from “ROLL.”  If I want a piece of the candy, I say give me a Tootsie Roll.

Similarity of the Product

The standard of infringement is whether an ordinary prudent purchaser would be likely to purchase one product, believing he was purchasing the other.  In other words, would TOOTSIES (especially used in close proximity with Tai’s Cute ‘lil) when used for cannabis-infused chocolate chews be confused with TOOTSIE candy. As a general rule, a trademark owner can use an identical or  similar mark as long it is on completely dissimilar goods. For example, the use of the mark Lexus on automobiles was determined not to confuse consumers of the Lexis database services.  The issue here appears to be that both companies are selling chocolate food products.  But anyone who is familiar with the cannabis industry knows that none of the big guys are making cannabis-infused products.  Advertising and distribution channels are not similar either.  One could also argue that the Venice product is a medicine not a candy.

Actual Confusion

Proof of actual confusion is not essential in determining trademark infringement. However, such evidence may be compelling in an infringement case. We know Tootsie Rolls has been selling its product since as early as 1909. Venice Cookie has been selling its product for several years. Why did it take years for Tootsie Rolls to complain? I suspect that it wasn’t until the internet made it easier for Tootsie Rolls to find Venice Cookie’s product that they took notice.  Unfortunately, the internet is a two-edged sword. I find it very unlikely that anyone actually complained to Tootsie Rolls that they were confused.

Competitor’s Intent

Although intent is not essential in proving infringement, it is a relevant factor. According to the Restatement of Trademarks, it is appropriate to consider intent because a party intending to cause confusion will generally be successful in doing so. Direct evidence of the competitor’s intention to deceive is usually unavailable and the complaining party must depend on circumstantial evidence such as how the competitor’s mark was chosen. The co-founder of Venice Cookie has already told us how he chose the mark. Remember those cute pudgy baby toes.

Bridging the Gap

What is the likelihood that the senior user will bridge the gap.  If it is probable that the senior user will expand into the junior user’s product area, the more likely there will be confusion.  This basically means is it probable Tootsie Rolls Industries will sell cannabis-infused products.  Who knows, maybe someday companies like Tootsie Rolls will make products in the industry, but I don’t see that happening any time soon.

Degree of Care Exercised by the Consumer

The degree of care a consumer takes in making purchases varies according to the purchase. For example, someone buying an expensive item is more likely to be discriminating and is less likely to be confused as to similar marks. The theory here is that you buy expensive items less frequently. Under this theory, the courts require a more substantial showing of similarity to justify a claim of likelihood of confusion. The same is true for items purchased by “sophisticated buyers,” such as doctors, avid hobbyists, interior decorators, realtors, etc., who arrive at the purchasing point already knowledgeable about the goods. A sophisticated buyer is less likely to be confused because of their superior knowledge as to purchasing decisions.

An “ordinary purchaser,” particularly one that buys inexpensive items on impulse is considered the most likely to be confused by similar marks.  It would be an interesting argument to make that a MMJ patient falls in the category of a “sophisticated buyer.” Unlike the ordinary purchaser who quickly scans the shelves at a supermarket and impulsively buys a box of candy without realizing that he bought the wrong one and was confused as to the choice of brands, a MMJ patient arrives at a dispensary already knowledgeable about the goods he wants to purchase or is educated by the budtender before making a buying decision. There is also a significant difference in price between an ordinary piece of candy and MMJ edible.

Did Venice Cookie Company really need to change its product’s name? You decide for yourself… but I know where I stand. I think it would have been a very interesting case to see litigated. I understand why they didn’t fight. Trademark litigation is expensive and time-consuming, with no guarantee how it will be decided in the end, and entrepreneurs and start-ups can’t afford to take the risk most of the time. One thing is for certain, there will likely be many more trademark battles to come as the industry takes shape.

Disney Takes Legal Action Against Deadmau5 For Trademark Infringement : Entertainment : Chinatopix

Disney Takes Legal Action Against Deadmau5 For Trademark Infringement : Entertainment : Chinatopix

Taylor Swift fires back in trademark infringement lawsuit

Taylor Swift fires back in trademark infringement lawsuit

Sunday, September 7, 2014

The Hershey Co. launches trademark infringement court battle against candy importer

Things aren't always sweet in the candy industry.
That much is evident from a wide-ranging lawsuit The Hershey Company just filed in federal court, accusing a importer of infringing its trademarks for the candy maker's best-known products.
Essentially, Hershey claims LBB Imports LLC is bringing in foreign-made candy with packaging and labeling that mimics that of Hershey's well-known brands - Reese's, York, Malteser, Cadbury, Kit Kat and Rolo.
LBB's actions, which continue despite protests by Hershey, are confusing consumers and illegally eating into Hershey's multi-billion share of the candy market, according to the lawsuit filed in U.S. Middle District Court in Harrisburg.
Hershey also accuses LBB of breaching earlier agreements to stop infringing on its famous trademarks. The importer, which has offices in California and New Jersey, has even started marketing a new catalog with its allegedly infringing products, the suit states.
Hershey doesn't list a specific damage amount in the suit, but is is seeking triple damages from LBB, based on an accounting it asks the court to order of the profits the importer has made through the alleged infringements.
The stakes could be quite high, given the profits Hershey lists in the suit for its own products. Sales of the Reese's line alone have exceeded $7 billion in the U.S. in the last five years, Hershey reported, while the Kit Kat and Cadbury products have had sales of around $1 billion and $500 million during the same period. Yearly sales of York and Rolo products each exceed $100 million annually, according to the suit.
Hershey controls all those marks either directly or under license.
LBB is violating those protections both by word and appearance, Hershey contends. LBB's Cadbury, Rolo and Kit Kat imports bear the same name as Hershey's products, according to the suit while the LLB's Yorkie and Maltesers products are only slight name variations from Hershey's York and Malteser lines.
Packaging color schemes also are too close to be legal, Hershey contends. For example, it argues, packaging of LBB's Toffee Crisp product bears the same licensed "Orange Mark" color scheme of Hershey's Reese's line.
Hershey is asking Judge John E. Jones III for an order blocking continued alleged infringement. It wants the judge to direct LBB to turn over its products for destruction and pay for "corrective advertising" to address the harm Hershey contends that LBB has caused to its marketing efforts and sales.
The Hershey Co. is no stranger to trademark infringement battles and is known for fiercely protecting those marks.
The firm has waged such battles with arch rival Mars Inc., with candidates forLancaster County sheriff and the Maryland state Senate who used images similar to company products in their campaigns, with a Michigan furniture company and with Williams-Sonoma over a cake pan design that Hershey claimed looked too much like its signature chocolate bar.

Nvidia files a patent lawsuit against Samsung and Qualcomm

Nvidia filed patent infringement lawsuits in Delaware against Samsung and Qualcomm concerning graphics processor technologies which Nvidia claims those companies have used in their products without license.
The graphics chip maker also asked the U.S. International Trade Commission (ITC) "to block shipments of Samsung Galaxy mobile phones and tablets containing Qualcomm's Adreno, ARM's Mali, or Imagination's PowerVR graphics architectures."
Nvidia's Tegra mobile processors with GPU functionality compete with Qualcomm's Snapdragon and Samsung's Exynos chips.
Among the products Nvidia wants blocked are Samsung's Galaxy Note Edge,Galaxy Note 4, Galaxy S5, Galaxy Note 3, and Galaxy S4 smartphones, as well as the Galaxy Tab S, Galaxy NotePRO, and Galaxy Tab 2 tablets.
Nvidia said the seven patents it is claiming Qualcomm and Samsung have infringed concern GPU technologies like programmable shading, unified shaders, and multithreaded parallel processing.
The lawsuits are the first patent infringement complaints Nvidia has made in its 21-year history, the company.
"As the world leader in visual computing, Nvidia has invented technologies that are vital to mobile computing. We have the richest portfolio of computer graphics IP in the world, with 7,000 patents granted and pending, produced by the industry's best graphics engineers and backed by more than $9 billion in R&D," Nvidia CEO Jen-Hsun Huang said in a statement.
"Our patented GPU inventions provide significant value to mobile devices. Samsung and Qualcomm have chosen to use these in their products without a license from us. We are asking the courts to determine infringement of Nvidia's GPU patents by all graphics architectures used in Samsung's mobile products and to establish their licensing value."
Samsung told PCMag it had no comment on the matter. A Qualcomm spokesperson said the company was "aware of the complaints and [we] are evaluating them."
At issue for Nvidia are Qualcomm's proprietary Adreno GPU cores used in the Snapdragon processors, which power many of Samsung's mobile devices, as well as ARM's Mali GPUs and Imagination Technologies' PowerVR GPUs, which are used in Samsung's own Exynos mobile chips.
Nvidia claimed that it reached a dead end in negotiations with Samsung on negotiations to license its IP for use in Samsung's devices.
"With Samsung, Nvidia's licensing team negotiated directly with Samsung on a patent portfolio license," Nvidia's David Shannon said. "We had several meetings where we demonstrated how our patents apply to all of their mobile devices and to all the graphics architectures they use. We made no progress. Samsung repeatedly said that this was mostly their suppliers' problem.",2817,2467372,00.asp