Steerpike’s Techdirt Profile


About Steerpike

Steerpike’s Comments comment rss

  • 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

  • Jun 21st, 2017 @ 11:03am

    Re: Re:

    Some ex post facto laws have been allowed to stand. More pertinent, here, I believe Supreme Court case law on this establishes the Constitutional provision as applying to criminal law, not civil law.

  • Jun 20th, 2017 @ 12:18pm

    Re: It makes sense...

    Won't have anything to do with an equivalent of cybersquatting. All of the content-neutral requirements of the Lanham Act are still in place. "Squatting" on a trademark is no harder or easier now than before. You still have to show use in commerce relatively quickly, even if you file an intent-to-use application.

  • Jun 8th, 2017 @ 9:16am

    Re: I think they look similar

    You can identify similarities between many trademarks. The question is whether they're so similar that there is a likelihood of confusion on the part of the beer buyers. I think that's quite a stretch here.

  • Jun 8th, 2017 @ 9:14am

    (untitled comment)

    Shipyard also subsequently filed two trademark applications for SHIPHEAD and has filed to cancel Logboat's trademark registration.

    Appears as though they're using their greater market power to try to bury Logboat in legal fees.

  • May 30th, 2017 @ 2:37pm

    Re: Re:

    Hi Jason:

    A patent would prevent third parties from producing the patented product (e.g. infringing ink cartridges). What was happening here is that a third party was refurbishing and reselling the same physical cartridges that Lexmark had already sold once. That is why the exhaustion doctrine applies. Exhaustion wouldn't apply to an infringing third party product, so if this third party started making its own cartridges instead of just reselling old Lexmark cartridges, they'd have a problem.

  • May 26th, 2017 @ 4:02pm

    (untitled comment)

    Maybe PayPal thinks its mark is famous. They don't have to show a likelihood of confusion or any competition between themselves and Pandora if that's the case (assuming they've alleged it and the mark is in fact found to be famous).

  • Dec 6th, 2016 @ 12:47pm

    Re: Ah... the Supreme SNORT

    It's what they're supposed to do. The system is designed with the idea that the Supreme Court will be restrained, resolve issues directly in front of them narrowly, not rule on issues not sufficiently before the court, avoid Constitutional questions if possible, and so on.

More comments from Steerpike >>