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I, along with many others, blogged last week that the Patent Reform Act had stalled in Congress. But Congress has changed its mind and today the House is debating its version of the bill (available here). And experts expect some version of the bill to be passed by the House at the end of today’s debate. You can find an excellent summary of key amendments to the House bill at Tech Daily Dose. If you want a list of each amendment to the bill, by Congressperson, go to the House website. And it should come as no surprise that with the Patent Reform Act moving forward again both the MSM and blogs are full of commentary. Here is some of the best:
Chicago Tribune surveys the opinions of some Chicago-area companies.
271 Patent Blog weighs in with the President’s view and a survey of news stories on the Act.
FileWrapper says that the House will likely pass some form of the Patent Reform Act today, but that the Senate is not expected to consider it until October.
IP Central is watching the House debate on CSPAN and says that most of it centers on procedural issues, not substance.
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Continue Reading It’s Alive: Patent Reform Act Being Debated in the House

My recent story about Ebert’s use of his “Two Thumbs Up” has been receiving a lot of attention (and I even scooped the Sun-Times):
Likelihood of Confusion — Ron Coleman agrees with E. Leonard Rubin, interviewed in the Chicago Tribune today, who says that the written “Two Thumbs Up” mark is pretty strong.
Robert Feder of the Chicago Sun-Times — Feder says that the “Two Thumbs Up” mark is “the most powerful and influential symbol in movie marketing.”
The fact that the Patent Reform Act has stalled in Congress, which I discussed earlier this week, has been picked up by several blogs:
Maryland IP Law Blog — Citing my post.
Patently-O — Dennis Crouch says that the Patent Reform Act is not just stalled, it is dead.
271 Patent Blog — Leads with a great Simpsons’ quote in saying the Act is on hold.
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Continue Reading Chicago IP Blog in the News

On Saturday, the Chicago Tribune reported that Roger Ebert has withdrawn the right to use his trademarked (co-owned with Siskel’s estate) thumbs-up/thumbs-down rating system. Ebert is negotiating a new contract with Disney, the show’s producer, after a one year hiatus during which he successfully battled cancer. Ebert allowed the show and his co-host Richard Roeper to continue using the thumb ratings during what he called “good faith negotiations,” but recently changed his mind when he felt negotiations were not progressing sufficiently. So far, two episodes have been taped without thumb ratings.
It will be interesting to see whether the thumb ratings are a powerful enough mark to get Ebert the contract he is looking for. My feeling is that we have moved from the era of thumbs to the era of more comprehensive ratings like Rotten Tomatoes. It is much easier and more reliable to go to an internet site available whenever you want it (for example, right after you decide to go to a movie) that aggregates opinions of critics around the country, than to wait for a television program and a couple of thumbs. But the thumbs are icons.
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Continue Reading Ebert to Disney: Put Away Your Thumbs

The Chicago Tribune had a great article in Monday’s business section discussing how to hire a lawyer. The first suggestion is to get referrals from colleagues. This is a good suggestion, but also a dangerous one. Colleagues’ thoughts are valuable, but anyone who has been on a bad blind date knows that you cannot rely too heavily upon the recommendations of even trusted friends and colleagues when it comes to complex, personal matters. And hiring counsel is both complex and personal. Whether you are the GC of a Fortune 100 or a small business owner, your relationship with outside counsel on a litigation or business deal is a very personal one. You need counsel who can achieve your legal goals and communicate effectively with you, but that is not enough. You also need counsel that is sensitive to your business model and the constraints of your industry, eager to work with you and willing to follow your direction in the matters you give them. And, maybe more important than all of these, you need counsel that is honest with you. When you interview potential counsel – and you should interview any new counsel before hiring them – listen to what they have to say about your case. They should tell you about their plan for your success, but they should also identify problems with the case. If they do not, that should raise a red flag. A lawyer who does not warn you about problems at the outset of a representation, is less likely to do it later. And not learning about problems with your case can be very expensive. For example, not learning that new discovery shows that your claims are not as strong as you originally expected can cause a case, and the related attorneys’ fees, to drag on when you would be settling if you knew the real state of the case. So, in addition to getting referrals and interviewing, also try to gauge whether you can trust new counsel to give you a dispassionate review of your case and warn you of any problems quickly.
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Continue Reading Tips for Hiring Outside Counsel

In yesterday’s edition, the Chicago Tribune published a commentary on the Patent Reform Act of 2007 by Cummins-Allison Corp.’s Chairman William J. Jones — Cummins-Allison is based in Mt. Prospect, Illinois and develops and distributes coin and currency handling/counting machines. Jones has strong feelings about the Act and offers some unique opinions. First, he is against “harmonizing” US law with international patent laws, arguing that the European and Japanese systems are “parochial.” He also makes the, in my experience unfair although widely held, argument that the Chinese system “specializes in intellectual property theft.” I believe if you look at recent Chinese cases or the experts on Chinese IP law — like the excellent IP Dragon — you will see that China has become increasingly willing to protect the intellectual property of foreign entities, as long as the entities have invested in the necessary Chinese patents, trademarks, etc.
Jones notes that at the recent Congressional hearings, no manufacturing firms testified, despite some interesting statistics:
U.S. manufacturers undertake 60 to 70 percent of the nation’s research and development and hold 60 percent of its patents.
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. . . . Roughly one-third of all patent applications are made by independent inventors, small manufacturers, universities and non-profit research groups. Their efforts are crucial for leading-edge scientific advances, and their views should be heard.
Jones is against the proposed post-grant review process because he believes it will diminish the value of patents by making their strength very uncertain. He also suggests that instead of giving an “overburdened” PTO broad, new rule-making powers, Congress should fully fund the PTO so that it can hire and retain a high quality staff of sufficient size to expedite the prosecution of patent applications. Finally, Jones points to what he believes is the diverse opposition to the Act, which he argues warrants taking the time for additional, robust debate.
Jones has some very strong views, not all of which I agree with. But I do not see how additional debate and discussion could harm the Act at this point. There are some strong dissenting voices, the Federal Circuit’s Judge Michel for example.
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Continue Reading A Dissenting Voice on Patent Reform

Abbott Labs. v. Sandoz, Inc., No. 07 C 1721, Slip op. (N.D. Ill. May 3, 2007) (Anderson, J.).
Judge Anderson denied plaintiffs’ motion for a preliminary injunction to prevent defendants Sandoz, Inc. (“Sandoz”) and Teva Pharmaceutical Industries, Ltd. (“Teva”) from selling a generic version of plaintiff Abbott Laboratories’ (“Abbott”) antibiotic cefdinir, which it markets using the name Omnicef. Plaintiffs’ original patent, U.S. Patent No. 4,559,334 (the “‘334 patent”), covering a form of cefdinir expired on Sunday, May 6, 2007 at 10:59 p.m. CDT. Plaintiffs’ second patent, U.S. Patent No. 4,935,507 (the “‘507 patent”), covering a crystalline cefdinir, does not expire until December 4, 2011. Plaintiffs argued that Sandoz’s and Teva’s respective formulations of cefdinir (the “accused products”), which the parties agree can be classified as cefdinir monohydrate, infringed the ‘507 patent and, therefore, sales of the accused products should be enjoined. The Court, with agreement of the parties, adopted a prior claim construction from Judge Payne of the E.D. Virginia for purposes of the PI determination. Using Judge Payne’s construction, the Court held that the accused products did not likely infringe the ‘507 patent. First, cefdinir monohydrate only displayed four of the seven peaks in an x-ray diffraction pattern that the ‘507 patent identified as indicative of crystalline cefdinir within the +/-.1 degree margin of error that the Court determined was the proper construction of the ‘507 patent’s “about” qualifier. Second, the Court held that “trace” amounts of crystalline cefdinir that were allegedly in the accused products in addition to the cefdinir monohydrate did not likely amount to literal infringement.
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Continue Reading Denial of PI Permits Sale of Generic Antibiotic

The Chicago Tribune ran a story on the front page of Wednesday’s Business section about the use of trademarks in keyword internet advertising: Trademark Battlefield. The story discussed various efforts to stop internet search engines (like those offered by Google, Yahoo and Microsoft) from selling trademarked terms as search keywords. For example, the story suggested that State Farm, an insurance company, may have purchased the name of its chief competitor, Allstate, from Google. As a result, if you google “Allstate” Allstate’s websites will come up first in the search results, but in the upper right corner of the search results page, you will see a State Farm add.
The story also discussed comments from a Google trademark lawyer, Rose Hagan, during a standing-room-only panel at the International Trademark Association’s (“INTA”) meeting on Monday, which was held in Chicago. Hagan said that Google sells advertising space, not trademarks. The story also notes that Utah has passed a law which prohibited the use of a competitor’s trademarks as advertising keywords. For more on the Utah law, check out Eric Goldman’s Technology & Marketing Law Blog. The Utah law and the various lawsuits against Google, Yahoo and Microsoft on this issue are all evidence that this is a very unsettled area of trademark law. A Yahoo attorney, Laura Hauck Covington, explained that “[w]e’re all trying to find the right, reasonable balance for the owners of trademarks, consumers and advertisers.”
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Continue Reading Keyword Advertising Discussed at INTA

Chicago Tribune Co. v. Fox News Network LLC, No. 07 C 0865, 2007 WL 1052508 (N.D. Ill. Apr. 4, 2007) (Bucklo, J.).*

Judge Bucklo denied plaintiff Chicago Tribune’s ("Tribune") motion for a preliminary injunction.  The Tribune sought an injunction which would have required defendant Fox News Networks ("Fox") to change the name of its "Redeye" late-night television news program based upon alleged infringement of the Tribune’s Redeye mark related to its Redeye newspaper.  The Court held that the Tribune had only shown a "possibility" that it would prevail on the merits.  The Court found that the Tribune’s Redeye mark was at least suggestive and, therefore a strong mark.  And the Court held that while the marks did not visually resemble each other, the Tribune proved a likelihood that the marks were aurally identical.  But the evidence did not favor the Tribune on either of the other two "most important" factors in deciding likelihood of confusion:  defendant’s intent and actual confusion.  No evidence showed that Fox "passed off" its program as coming from the Tribune, so the issue of Fox’s intent favored Fox.  As to actual confusion, the Tribune put forth a witness that testified that he suffered "momentary actual confusion" when he first learned of Fox’s Redeye program, but that it was cleared up almost immediately by someone he was talking with about the program.  Additionally, the witness did not have cable television, so could not watch the show.  While initial confusion can be sufficient to show actual confusion, the Court disregarded the witnesses testimony because he admitted that he was a consumer of neither the Tribune’s nor Fox’s products.  Continue Reading Redeye Preliminary Injunction Denied Despite Aurally Identical Marks