A couple of unrelated IP stories from Chicago, where most have been focused on snow & the primaries this week:
- The Chicago Tribune reported — click here for the story — that a yearly $5,000 scholarship has been established in the name of Allen J. Hoover, a patent attorney at the law firm of Wood Phillips, who was killed in Wood Phillips’s offices in December 2006. The scholarship will be given to a third-year DePaul University law student focusing on intellectual property law. Hoover was a DePaul alum. At least some good can come from such senseless violence.
- The University of Chicago Faculty Blog discussed patent exhaustion and the recent LG v. Quanta Supreme Court oral argument in this post, as part of an ongoing discussion about "New Servitudes" — licenses that attempt to control a purchaser’s rights in software, digital music, etc. (click here to read Professor Van Houweling’s initial post and click here to get the current version of her New Servitudes article at SSRN). Van Houweling’s analysis of the oral argument may not be as deep (note sarcasm) as my analysis of Justice Breyer’s cycling analogy, but it is quite interesting and she edges closer than most to predicting an outcome:
Justice Breyer suggested that the “doctrine that you cannot impose equitable servitudes upon chattel” might help to decide the case. And he returned several times to a hypothetical in which a patent holder tries to enforce restrictions on a consumer’s use of patented bicycle pedals:
“Imagine that I want to buy some bicycle pedals, so I go to the bicycle shop….The inventor has licensed somebody to make them, and he sold them to the shop. I go and buy the pedals. I put it in my bicycle. I start pedaling down the road. Now, we don’t want 19 patent inspectors chasing me….”
Breyer apparently finds this a troubling scenario even if the pedals come with some sort express notice of the use restrictions. He asked whether
“if … I go in the bicycle shop and I buy the pedals and then they give me … one of these pieces of paper that has all of the 42,000 words on it and there are in these 42,000 words it says, and now you are put on notice that once you put it in your bicycle and you pedal away, they’re going to get you and you’re going to be hauled into Patent Court, then–then that’s ok?”
I don’t want to read too much into the tea leaves of this oral argument transcript. But Breyer seems to be suggesting (in part relying on the traditional rule against chattel servitudes) that consumers would be justifiably surprised to find themselves “hauled into Patent Court” for merely using things they had lawfully acquired, even where the restriction was imposed by a patent holder by means of a written notice attached to the good. As Henry’s post suggests, the problem here is not exactly lack of notice–the information is available in the “42,000 words” in Breyer’s hypothetical. But it may not be reasonable or even desirable to expect people (at least not retail pedal purchasers) to absorb that information. The Court expressed this same anxiety back in Straus v. Victor Talking Machine Co., in which it refused to enforce a restriction printed on plates attached to record players after noting that “not one purchaser in many would read such a notice, and that not one in a much greater number, if he did read it, could understand its involved and intricate phraseology.”