While I travel for a few pressing client matters, here are a couple of podcasts and IP stories worth a read or listen:
At the end of August, I had the privilege of joining Jeremy Phillips and Philip Parker on Duncan Bucknell’s IP Think Tank Podcast. We discussed the impact of the recession on global patenting and the quality of patents in the US, Japan and Europe. Click here for the podcast.
The latest installment of Doug Lichtman’s IP Colloquium is available here. Lichtman investigates the scope of the derivative work rights in copyright law, using a recent case that questioned whehter a Harry Potter was a derivative work based upon J.K. Rowling’s Harry Potter series. It is a great listen and comes with free CLE credit. Click here for the podcast.

Continue Reading IP Podcasts

Here are a few stories from the blogosphere that I did not have time to fully cover this week because of pressing client matters and some new opportunities:
* The Federalist Society is offering an excellent podcast discussing Bilski from almost every possible angle. The podcast features West Virginia University Law Professor Michael Risch and American University Law Professor Joshua Sarnoff, who filed competing amicus briefs. The podcast is a half-hour well spent for anyone involved in patent law. Click here to listen to the podcast. Hat tip to Duncan Bucknell at the IP Think Tank Blog for pointing out the podcast.
* Doug Lichtman’s IP Colloquium takes a thorough look at the copyright issue of the year thus far, Shepard Fairey’s iconic Obama image, and Lichtman offers free CLE credit for listening. Click here for that edition and here for the IP Colloquium’s archives.
* Michael Atkins has identified the top five trademark cases of the last year at the Seattle Trademark Lawyer. Number 4 is the Seventh Circuit’s decision in AutoZone v. Strick. Click here for more on the district court decisions in the case from the Blog’s archives. This is what Atkins had to say about the Seventh Circuit’s decision:
[G]ood likelihood of confusion analysis in reversal of hard-fought trademark infringement case, which also was one of the first dilution cases under the [Trademark Dilution Revision Act].

Continue Reading IP News Shorts

Welcome to the August 2009 Carnival of Trust. The Carnival of Trust is a monthly, traveling review of the last month’s best posts related to various aspects of trust in the business world. It is much like the weekly Blawg Reviews that I post links to and have hosted (click here and here), but those generally contain far more than ten links. My job this month was to pick those ten posts for you and provide an introduction to each post that makes you want to click through and read more. For my regular Chicago IP Litigation blog readers, this will be a slight departure from the case analysis format you have come to expect, but very similar to my earlier stints hosting the Carnival of Trust and Blawg Review.
It is the trust that matters, not the title.
At IP Think Tank, Duncan Bucknell added to the recent debate in the patent community about whether the IP function should move into the corporate C-level suite, adding a Chief Intellectual Property Office to the ranks of CEO, COO, CTO, CIO, CLO and CMO – click here and here to read Bucknell’s posts. Following up on comments by Microsoft’s Marshall Phelps and Rockwell Collins’ Bill Elkington, Bucknell explained that the issue is not the name, but in a company having an IP champion that earns the organization’s trust and respect, whatever title that person is given:
You have to build your own credibility within your organisation as someone who reliably gets the job done. As you build trust with those senior to you, then your (ongoing?) commitment to communicating the value that can be added using intellectual property will become more prominent.
Make some (achievable) promises and then deliver. The more that you do this, the more credibility will be given to the IP function, and the greater awareness those senior to you will have. Some would call such a person an ‘IP Evangelist’ – I would say that they are just doing their job. People executing on difficult tasks bit by bit has always been what success is about.
As usual, Bucknell’s analysis is excellent. A person’s respect within an organization is at least as important as their title.
Running an organization is all about building trust.
The patent community focused much of its attention this week on the confirmation hearings for David J. Kappos, nominee for Director of the US Patent & Trademark Office. Click here for Patentability’s summary of the hearing highlights and here for a copy of Kappos’s statement at Patently-O. The hearings were relatively short, likely because there appears to be widespread trust in Kappos’s background and abilities. And although much of the hearing focused on procedural patent office issues, Kappos showed he deserved that trust by focusing his statement on his plans to earn trust with all of the stakeholders in the patent world. He specifically addressed concerns that his corporate background could disadvantage individual inventors or academics:
I am mindful that the USPTO serves the interests of ALL innovators in this country, small and large, corporate and independent, academic and applied, and – most importantly — the public interest. While I have spent my career to date at a large corporate enterprise, I am familiar with the concerns and issues of all USPTO constituents – including small and independent inventors, the venture and start-up community, public interest groups, the patent bar and many others – and will reach out to all of them.
Kappos addressed his plans to build trust with his employees at the USPTO:
I am mindful of the incredible dedication of the thousands of USPTO employees, and the essential role they play to the success of the US innovation system. I will work every day with the USPTO employees and the unions that represent them to establish strong, positive relationships grounded in professional treatment for these workers producing work product based on professional judgment.
He addressed the need to build global trust and relationships:
I am acutely mindful that innovation today is global and that IP policy is of paramount importance, not only in our country, but also in the EU and Japan, in China, India, Brazil and many other developing countries. I will use my international experience and my understanding of global IP trends to help this Administration represent, advance, and protect the interests of American innovators in the global arena and to lead the world in developing strong, balanced, inclusive intellectual property systems that advance the well-being of all participants.
And he addressed the need to build trust with the Administration he seeks to join and the American people the Administration serves:
Finally, I am mindful that the office for which I am being considered, working as part of Secretary Locke’s team and within the Administration’s agenda, must be intensely focused on how to serve the American people at this time of economic uncertainty.
Gene Quinn provides proof that Kappos’s trust-building efforts worked in his IPWatchdog post about the hearings (click here to read the post):
In all, what Kappos said was certainly reassuring, and he should have absolutely no problem getting confirmed. If he does stay mindful of the needs of all those who use the USPTO, small, large and in between, and the interests of the diverse industries who sometimes need contradictory things in order to thrive, he will not only be a good leader, but he will be an exceptional leader and might really reform the Patent Office into the entity it can and should be in order to foster economic development and job creation in the US.
Walter Cronkite personified trust.
The passing of Walter Cronkite last month does not have much to do with intellectual property, but I could not do this month’s Carnival of Trust without mentioning Cronkite. To me and so many others, Walter Cronkite embodied trust. Cronkite was the person so many turned to in times of national tragedy, like war, and in times of national triumph, like the Apollo XI moon landing. Naturally, Cronkite’s passing caused numerous reviews of present-day news personalities and almost as many questions about whether times have changed so much that we cannot have another Cronkite. In the Chicago Reader blog, Whet Moser decries a poll that found the Daily Show’s Jon Stewart to be the most trusted newsperson on the air today – click here to read the post. Frankly, the poll does not appear to be scientific and, therefore, not very trustworthy. But I have trouble arguing with the results. I love news. Three newspapers are delivered to my door every morning, and I read each one. Okay, I at least skim each one. I grew up watching the nightly news, but I now finding myself turning to Stewart for news programming more frequently than I turn to Couric, Gibson or Williams. I like and even trust all three. But Stewart has built a more powerful trust with me by calling out the problems with the 24-hour news cycle and by making me laugh. Stewart has some obvious biases, but he makes sure they are obvious and he creates even more trust by poking fun at both sides of most issues. Truth and laughter are powerful trust builders.
Cronkite deserves more than one entry in this Carnival, and the second comes from the Carnival of Trust’s own Charles Green at his Trust Matters blog – click here to read the post. Green breaks down the components of The Most Trusted Man in America: 1) honesty; 2) selflessness; and 3) integrity. Green also explains that Cronkite’s calm, baritone voice reinforced each of the three characteristics. I could not agree more. Hearing Cronkite’s voice is an instant dose of trust.
For those not fortunate enough to develop their own “personal,” trust relationship with Cronkite through his news programming, check out this NPR obituary to get some measure of the man and his history.
Credentials can generate and regulate trust.
At the Mediation Channel, Diane Levin makes a strong argument that legal mediators need to develop an accreditation system – click here to read the post. And IP mediator Victoria Pynchon responds at her Settle It Now blog with her own arguments for credentialing mediators for the good of mediators, the mediating parties and society’s trust in the mediation system as a whole – click here to read the post.
How can companies build trust?
Building trust can be a slow and sometimes uncertain process. At his Touch Points blog, Steve Finikiotis cites a study suggesting that trust in corporation in the United States and other developed countries is at its lowest point ever – click here to read the post. In order to remedy the decreased trust, Finikiotis provides four trust building steps: 1)Focus on understanding and meeting customers’ preferences; 2) Under-promise and over-deliver; 3) Transparency; and 4) Encourage and foster feedback.
And although Finikiotis did not focus on this example, last month Amazon showed just how those steps do build trust. Amazon was accused of copyright infringement when a digital book seller used a self-service program to sell unauthorized copies of several books, including George Orwell’s 1984, to Amazon Kindle users. When Amazon learned of the alleged infringement, it erased the books from its customers Kindle accounts. As you might expect, there was a public outcry. Kindle users were upset to learn that books they purchased and felt they owned could be removed from their devices and accounts. And Amazon sprang into action following Finikiotis’s four steps:
Amazon listened to its customers’ frustration at having the books removed and the possibility of future removals;
Amazon replaced the books;
Amazon’s founder and CEO, Jeff Bezos, issued the following very direct and honest apology:
This is an apology for the way we previously handled illegally sold copies of 1984 and other novels on Kindle. Our “solution” to the problem was stupid, thoughtless, and painfully out of line with our principles. It is wholly self-inflicted, and we deserve the criticism we’ve received. We will use the scar tissue from this painful mistake to help make better decisions going forward, ones that match our mission.
With deep apology to our customers,
Jeff Bezos
Founder & CEO
Amazon.com
4. Through its response and apology, Amazon fostered feedback.
Amazon turned a negative situation into a very positive one. As a Kindle owner (and lover), I was very happy with the response and it has made me an even more loyal Kindle customer. And others agree. For example, Amazon’s response helped convince PublicOrgTheory blog to go ahead with a Kindle purchase – click here to read the post. And In Propria Persona has qualms with copyright law, but saw the apology as good customer service and said it improves the likelihood of him purchasing a Kindle – click here to read the post. Finally, the Below the Line marketing blog says that “Amazon shows how to apologize,” and notes that customer comments on the Amazon site have been largely positive since the apology; proof that Finikiotis’s steps work. Nice job to both Finikiotis and Amazon.
And with that story of trust done well, thank you for reading, whether you are a regular reader of this blog or a Carnival of Trust groupie.

Continue Reading August Carnival of Trust

Blawg Review #222 was hosted this week by Duncan Bucknell’s IP Think Tank — click here to read it. The Review is themed around Australian community festivals, which sound much like American community festivals. Of particular interest, are links to the following IP-related posts:
Drug & Device Law and Point of Law posts discussing the Twombly/Iqbal pleading requirements, a subject I have discussed on this blog here and here. These posts suggest that Twombly-style pleading is spreading to most substantive legal areas, as the Supreme Court required in Iqbal.
Spicy IP’s post highlighting the fact that Managing Intellectual Property magazine named IP bloggers generically as one of the fifty most influential people in IP — click here for the post.

Continue Reading Blawg Review #222 on Twombly & the Power of IP Bloggers

Here are several items that I have been holding to fit into posts, but that do not warrant a separate post:
The list of regional IP blogs keeps growing. Here are a few recent additions, as well as some general IP blogs. I will do an update of my regional blog list soon:
Delaware Patent Litigation Report* by lawyers at Morris James. This is not technically a new blog, but it is a significant redesign and a blog you should be reading if you practice patent law in the District of Delaware.
ITC 337 Law Blog by lawyers at Oblon Spivak. This is not a regional blog, but it is at least a niche IP blog and it covers a venue that has been a glaring omission in the legal blog world;
Patent Law Insights* by Rajiv Sarathy of Perkins Coie. Again not a regional blog, but Sarathy is putting up good content and his posting appears to be getting more frequent.
Virginia IP Law* by lawyers at Troutman Sanders. This is a true regional IP blog, and it looks like a great addition to the club.
At his IP Think Tank blog, Duncan Bucknell explains when you would not want to register your trademarks — click here to read the post. Bucknell makes good points, but it is also worth the read just to see a lawyer advocate against legal protection in a written document, that is not something you will see often.
Blawg Review #212 (click here to read it) is up at Current Trends in Copyright, Trademark & Entertainment Law. It is written around the country song “You Never Even Call Me By My Name” a/k/a “You Don’t Have To Call Me Darlin,’ Darlin'” (click to watch the video). In honor of INTA being held this week in Seattle, there is a lot of IP-related content.

Continue Reading IP News, New Blogs & Seminars

IPWatchdog Gene Quinn recently published his list of the top 26 patent blogs, based upon Technorati rankings (Quinn only considered blogs in the top 1M of the Technorati rankings) — click here to read Quinn’s post. Quinn manually determined which blogs counted as patent blogs, and did nice work. Although I would add the IP ADR Blog to the list. While I do not place much weight in blog rangings, the list identified a few new blogs that I plan to follow, and it is gratifying to see that the Chicago IP Litigation Blog has a strong reader base in the patent world.
Here are Quinn’s rankings:
Patently-O – Technorati Rank 21,202
Patent Baristas – Technorati Rank 61,134
IPWatchdog – Technorati Rank 80,245
Against Monopoly – Technorati Rank 80,245
Patently Silly – Technorati Rank 90,082
Chicago IP Litigation Blog – Technorati Rank 117,073
PHOSITA – Technorati Rank 101,726
Spicy IP – Technorati Rank 129,347
PLI Patent Practice Center – Technorati Rank 132,753
Duncan Bucknell Company’s IP Think Tank – Technorati Rank 136,348
Patent Prospector – Technorati Rank 152,448
Securing Innovation – Technorati Rank 162,007
Peter Zura’s 271 Patent Blog – Technorati Rank 163,794
The Invent Blog- Technorati Rank 167,214
Promote the Progress – Technorati Rank 198,166
I/P Updates- Technorati Rank 213,371
IP NewsFlash- Technorati Rank 221,777
Orange Book Blog – Technorati Rank 221,777
The IP Factor – Technorati Rank 250,588
Philip Brook’s Patent Infringement Updates- Technorati Rank 273,434
Patent Docs – Technorati Rank 300,413
Antiticpate This! – Technorati Rank 351,677
Patent Fools (now operated by IPWatchdog.com) – Technorati Rank 351,092
Patentably Defined – Technorati Rank 614,978
Steve van Dulke’s Patent Blog – Technorati Rank 676,101
IP Spotlight – Technorati Rank 752,199

Continue Reading Most Read Patent Blogs

At his IP Think Tank Blog, Duncan Bucknell reflected upon Doug Lichtman’s recent IP Colloquium interview with Federal Circuit Chief Judge Michel — click here to read Bucknell’s post and here to get the Michel interview, which you is well worth any patent litigator’s time. Bucknell’s take away from the interview is a very timely question in light of the news that patent reform may be back before Congress in 2009:
If the intellectual property laws could be codified so that the result in intellectual property disputes is always certain – even though it might not be fair – would that be ok? Or would you prefer that the legislative guidelines remain broad and the fine details in each circumstance be worked out in context – in litigation? (As happens today?)
I think this is a difficult question to answer. My experience is that many, maybe most, would like certainty over justice in the abstract. It makes sense to reduce transaction costs and to provide businesses increased certainty. But when asked the same question about their own IP case, most prefer a more complex and less certain system designed with the goal of reaching fair (I would substitute the word “just” here) outcomes.

Continue Reading Do you prefer IP law certain or fair?