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  • Mar 28th, 2018 @ 12:03pm


    Thank you.

  • Mar 28th, 2018 @ 11:52am

    Re: Re: Supreme Court?

    Do you know if Google has requested a re-hearing en banc?

  • Mar 28th, 2018 @ 11:51am


    Typically, judges lean toward a specific outcome based on their jurisprudence. They way they see the relevant legal issues leads them to want the case to come out one way or another. That's supposed to give way to precedent, factual findings by the jury, proper legal reasoning in a specific case, and so on, but sometimes the judge's own views on the legal issues push them beyond those things to get the result they want.

    I once heard a 9th Circuit Justice state that he knows how he wants a case to come out, and his clerks are basically supposed to figure out the legal rationale to make it happen. That wasn't the first time I'd heard that from a judge, sometimes due to issues of legal philosophy, sometimes due to less high-brow considerations (like a case where the appeals court judge simply personally disliked the trial court judge).

    I can't say that's what happened in this particular case, but the general mindset on the Federal Circuit tends to ebb and flow in certain directions, and I think the momentum of whatever the prevailing judicial philosophy is on the court can certainly impact rulings, leading to decisions that seem a bit of a stretch (as here, where even if one disagrees with the jury decision, I think it's a real stretch to conclude no reasonable jury could have come out as they did).

  • Mar 28th, 2018 @ 11:46am


    This isn't true. The part about upending the system, I mean. Courts have always had the power to overturn jury verdicts in civil cases, and it has always been used (though they're supposed to be reserved in doing so). Even the trial court judge can overturn the jury's verdict after they come back, though that doesn't happen often.

    Even in a criminal case, an appeals court can (and courts do) overturn guilty verdicts. What they can't do is overturn a jury verdict of not-guilty. That's the context in which you generally talk about jury-nullification, because in that case--a not-guilty verdict in a criminal trial--the government is extremely limited in what it can do to overturn the jury, if it can do anything at all.

  • Dec 21st, 2017 @ 9:42am


    You're way behind the times. After the initial settlement, they went to court again after Apple's music business started to ramp up. Apple Inc. (the computer company) ended up buying all of the trademarks as part of the settlement, and they've licensed them back to Apple Corps (the Beatles).

    Apple Inc. is not in violation of any agreement or settlement with the Beatles over their use of marks on music or music-related devices.

  • Dec 21st, 2017 @ 7:42am

    (untitled comment)

    Likelihood of confusion seems really low here. On the other hand, the blurring claim looks a lot more viable. I don't think that will be so easily disposed of, since it doesn't require use on similar goods or services.

  • Dec 19th, 2017 @ 9:53am

    (untitled comment)

    Moderation often involved 'censorship.' But it isn't illegal censorship, unless done by the government. That is taking a broad view of the term 'censorship.' I think that's in line with the ACLU statement on the term.

    Also, the EFF and one of their partners has a report on 'censorship' in social media, which basically deals with content moderation on social media platforms.

    So, though it may seem a minor point, I don't think it is correct to say this isn't censorship, but it is correct to say it isn't illegal censorship, and to point out that not all censorship is inherently bad.

  • Sep 3rd, 2017 @ 12:18pm

    Re: here we go again

    No, this is just bad examination, most likely. Patent examiners generally treat a smartphone as a general purpose computer, and then evaluate patentability from there.

  • Sep 3rd, 2017 @ 12:12pm

    Re: Re: Re: Re:

    The file history is necessary to see what the patentee might have given up through patent prosecution by way of argument and amendment, but the broad claim here is so broad that I suspect there is plenty of invalidating art the examiner just never considered.

  • Sep 2nd, 2017 @ 3:53pm


    It doesn't. And without looking at the file history we can't tell if the patent applicant even argued that, but I suspect they did. I think the examination for this patent application was very poor.

  • Sep 2nd, 2017 @ 12:47pm


    It is defined, at least partially, within the patent application. If the definition of "mobile" were at issue, a court would likely look to the specification of the patent itself to determine the boundaries of that word.

  • Sep 2nd, 2017 @ 12:44pm

    Re: Re: Re: Stupid Patent of the Month

    It's not true anymore, if it ever was. General internet searches can be, and are, done by patent examiners. I've received rejections under 103 based on internet search results.

    Non-patent literature (NPL) generally is a valid source of prior art. People who say they are limited to search prior patents are mistaken.

    MPEP section 904 explicitly provides for this: "The Internet is an Office-approved search tool that may be considered when planning and conducting a search for an application. The Internet provides the Office the opportunity to enhance operations by enabling patent examiners to efficiently locate and retrieve additional sources of information relating to a patent application."

    Section 901.06 deals specifically with non-patent publications.

  • Sep 2nd, 2017 @ 9:26am

    Re: Stupid Patent of the Month

    Who is following the law here, the examiner? Sounds like the prior art search was done poorly. it's not hard for an examiner to put together a rejection under 103. Once the file history is available we can see what actually happened, but this certainly looks to be the product of poor examiner, not procedures mandated by law.

  • Sep 2nd, 2017 @ 9:10am


    It's possible. Doesn't look like the file history is accessible yet, but once it is you can see the original claims they filed and what arguments, if any, they made with respect to the fact that this is implemented on a mobile device. Just putting it on a mobile device, however, should not be enough to get around a 103 (obviousness) rejection.

    I'm interested to see the file history when available so I can see what prior art the examiner cited in this case. I suspect this is an invalidity waiting to happen.

  • Aug 7th, 2017 @ 1:14pm

    Re: Re: Re: Re: Daily Mail

    You can start with 17 U.S. Code. I don't think there is an explicit definition of "author" there, but the use of the term throughout the code indicates that it is contemplated to be a human being. Also, back in 2014, the Copyright Office, who is tasked with interpreting the code and issuing rules, advised that works created by animals were not subject to copyright. The court is following along that same line of reasoning. If we want to extend copyright protection to works created by animals, Congress would have to amend the copyright act to provide for it.

  • Aug 7th, 2017 @ 1:00pm

    Re: Re: Re: Moving On

    Problem with this assessment is there is no infringement (or theft, if you prefer that term) because the photographer had no legal right to exclusive use of the photo to begin with. There is no copyright in it, and that would be his only means of controlling the photo's reproduction etc. Since it is in the public domain and free for anyone to use, promoting "theft" of it is impossible.*

    *this all applies to the U.S.

  • Aug 3rd, 2017 @ 12:15pm


    Wow. Thanks for looking that up.

    You'd think any attorney who even takes on this sort of thing would know (or should know) that it is both without merit and likely to spark a backlash against the client. Even an attorney working from home.

  • Aug 3rd, 2017 @ 12:07pm

    (untitled comment)

    It's getting the point where it should be malpractice for an attorney to even consider filing this kind of suit without making every effort to talk the client out of it and to point out that they're likely to do much more harm than good to themselves.

    I've only had one client who was even considering trying to bring action against someone who left an online review (not anonymous in that case), and I sent the client links to a bunch of these types of stories and he concluded on his own that he didn't want to move forward with any kind of lawsuit.

  • Jul 10th, 2017 @ 4:21pm

    Re: Re: Re: missing something

    Yes, we have 228 years of case law on the 1st Amendment, and the state of that case law at any given time, at least insofar as it comes form the Supreme Court, sets the boundaries of the 1st Amendment. If the Bill of Rights were limited to only those things that were specifically stated in the text of the amendments, they'd be pretty poor protection against government overreach. The 4th Amendment, for example, does not include digital or electronic media, however it is quite clear from U.S. case law that the amendment also provides protections for a citizens' interests in those items.

  • Jul 10th, 2017 @ 4:12pm

    (untitled comment)

    Skipped ahead to 19:45 in the oral arguments. Having argued an appeal in front of a circuit court, I was cringing on behalf of this gov't attorney the whole time. I wonder what he did for the firm to send him to make those arguments :D

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