Here are several stories and updates, as well as a new IP blog:
At Patently-O, Dennis Crouch covers the Federal Circuit decision in the appeal from the Northern District of Illinois case SourceOne Global Partners, LLC v. KGK Synergize, Inc. — Click here for Crouch’s post on the appeal and here for my post on the underlying decision.
The latest installment of Doug Lichtman’s IP Colloquium is available — click here to listen. Lichtman and his guests from Microsoft, Paramount Pictures and MySpace discuss the protection of content in the digital age. As always, it is an excellent listen and CLE credit is available.
Seattle Trademark Lawyer Michael Atkins has another great post up about Olympic trademarks, this time featuring an article that ran in the Chicago Tribune (here) and LA Times (here) quoting both Atkins and me.
California attorney and mediator Erica Bristol has started the IP Watchtower blog. The blog covers all facets of intellectual property and the initial posts suggest it will be a great read. I have added it to my feed reader.

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Congratulations to Sharon Barner, a Chicagoan and the head of Foley & Lardner’s IP practice. Barner has been nominated to become the next Deputy Director of the Patent & Trademark Office. Based upon reputation and my limited contact with Barner, including among others speaking on a panel at Northwestern with her, the administration made an excellent choice. For more on the nomination, check out Patently-O and Chicago Law.

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Here are several stories to start your Monday morning with that I was not able to get to last week because of client commitments and some new business opportunities:
The first round of Bilski briefing has been filed with the Supreme Court. Click here for links to the various amici briefs at Patently-O, and here for an analysis of Bilski’s opening brief at BlawgIT.
Victoria Pynchon has an important warning for IP litigators about understanding a client’s insurance coverage at her IP ADR Blog — click here to read the story and here to check out Pynchon’s husband’s new Catastrophic Insurance Coverage Blog. The blog appears to be a good read, but more importantly IP litigators should make sure that they investigate client’s insurance policies early in a case.
William Patry has a new copyright-related blog, Moral Panics and the Copyright Wars. It is a companion to his book of the same name, which is excellent. I had the privilege of receiving an advance copy, which I loved. I will post a review soon. For now though, click here for Patry’s first post on the new blog.
Finally, last Friday, as they were headed into the August recess the Senate confirmed David Kappos as the next Director of the PTO — click here for the PTO’s press release.

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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.

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The legal blogosphere is full of analysis and commentary regarding the Patent Reform Act, here is more of the best:
FileWrapper;
Patent Baristas (surveying industry responses to the Act);
Patent Docs (discussing the witness list for Patent Reform Act hearings);
Patently-O (damages provisions analysis), and here and here;
Washington State Patent Law Blog.
And the Bilski amicus briefs began coming into the Supreme Court today. Click here for Dennis Crouch’s post with links to many of the amicus briefs. And here for Crouch’s post discussing the PTO’s Bilski guidance to Examiners.

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Time has published a list of 2008’s best inventions — click here to read it. Here are a couple of inventions with Chicago connections:
* 12. MacroMarkets — MacroMarkets was instrumental in starting housing futures trading on the Chicago Mercantile Exchange (the Chicago connection). Now MacroMarkets is working on exchange-traded funds that allow regular investors to bet on housing futures.
* 23. The Branded Candidate — This invention is actually about a trademark and a brand. Chicago’s own President-elect Obama created a marketing sensation with his branding this year. Here is how Time describes it:
Barack Obama hat: $15. Barack Obama special-edition Beyoncé T shirt: $60. Devising a system to make and sell your own swag and garner millions in profits, not to mention the phone numbers and addresses of hundreds of thousands of potential volunteers? Priceless.
Hat tip to Dennis Crouch who identified Time’s list at Patently-O.

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In re Bilski, __ F.3d __ (Fed. Cir. 2008) (en banc).*
Chief Judge Michel, writing for a nine judge majority, affirmed the Board of Patent Appeals and Interferences’ finding that Bilski’s invention — a commodities trading method for hedging risks — did not meet the 35 U.S.C. § 101 patentable subject matter requirement. The Federal Circuit overturned State Street’s “useful, concrete, and tangible result” test as insufficient to determine patentability. The Federal Circuit held that the Supreme Court’s “machine-or-transformation” test was the only test for determining patentability:
A claimed process is surely patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.
I found Judge Dyk’s concurrence tracing the history of the “machine-or-transformation” test back to the Patent Act of 1793 especially interesting:
In fact, the unpatentability of processes not involving manufactures, machines, or compositions of matter has been firmly embedded in the statute since the time of the Patent Act of 1793, ch. 11, 1 Stat. 318 (1793).
As with any major appellate decision, we will need eighteen to twenty four months of district court and Federal Circuit decisions to flesh out and fully understand Bilski’s implications. While we argue those cases and await the decisions, there will be plenty of law review and blog analysis. Here are some of the first (I will update with additional posts as they come):**
* 271 Patent Blog (glad to see Peter Zura back in the blogosphere);
* IP ADR Blog;
* Likelihood of Confusion;
* Patent Baristas;
* Patently-O (with Crouch’s usual, in-depth analysis);
* The University of Chicago Law Faculty Blog (Randy Picker has an exceptionally detailed take on the opinion); and
* WSJ Law Blog (saying experts are torn as to whether Bilski will make it to the Supreme Court).
* Click here for the opinion.
** I have updated the list of Bilski blog posts with some new ones.

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New Medium LLC v. Barco N.V., No. 05 C 5620, 2008 WL 4615682 (N.D. Ill. Oct. 16, 2008) (Posner, J. sitting by designation).
In my previous entry about this case, I linked to a copy of this decision and briefly explained the result, but did not provide any analysis of the opinion because I was previously involved in the case — click here to read that entry in the Blog’s archives. Since that post, Dennis Crouch has provided some excellent analysis of the opinion — click here to read it at Patently-O. Thanks Dennis.

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I thought I was done discussing anonymous blogging — click here for my posts about Troll Tracker and anonymous blogging. But the Legal Talk Network’s Lawyer 2 Lawyer podcast has just published an edition about Troll Tracker and anonymous blogging featuring Ray Niro Sr. of Niro Scavone (who offered $15,000 for anyone who revealed Troll Tracker’s identity) and Dennis Crouch of Patently-O. It is a very interesting set of interviews. I only wish that Niro and Crouch had been on together, instead of in separate interviews. Here are some highlights:
Niro stated that no one has claimed the $15,000 reward for identifying Troll Tracker.
Niro emailed Troll Tracker and offered to donate the reward to charity (at that time it was $10,000) and fly Troll Tracker to Chicago to meet with Niro and see his firm.
Niro went back and forth between saying that anonymous blogging was wrong and that it was harmful and should not be allowed because you could not judge the author’s credibility.
Crouch supported anonymous blogging, done correctly, but acknowledged that anonymous comments on his site tended to be more aggressive than those with identified authors.
Crouch offered Troll Tracker an opportunity to contribute to Patently-O.
Crouch sees much of this as a generational change. Among other things, those under thirty have no expectation of privacy or concern at revealing their identity on the internet. Those over thirty are careful with their privacy and identity, making anonymity more enticing. That suggests that anonymous blogs will become less prevalent with time. Troll Tracker is likely mid-thirties, putting him right on the cusp of Crouch’s dividing line.
Crouch’s generation-split argument may have been displayed when Niro and Crouch were asked for their contact information. Crouch told people to go to Patently-O. Niro was uncomfortable providing his contact information and, when gently prodded, explained that he could be contacted through his firm, Niro Scavone. Of course, Niro’s reluctance could also be explained by the anonymous threats made against him in the recent past.
Finally, Business Week has a good article detailing the Troll Tracker story — click here to read it.

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Dennis Crouch at Patently-O is reporting that Cisco has amended its employee blogging policy to require that any Cisco employee blogging about issues involving or related to Cisco identify themselves as a Cisco employee and provide a disclaimer that the opinions are those of the employee alone and not necessarily Cisco. This is a reasonable policy. It provides Cisco’s employees the freedom to blog while protecting both Cisco and its employees. And it prevents future occurences of the mistake Troll Tracker made (anonymously commenting on cases his employer was involved in), as I discussed in my post on anonymous blogging last week, click here for the post.
Cisco also told Crouch that Troll Tracker would be free to continue blogging, presumably as long as he follows the policy. Hopefully, that means that Troll Tracker will return to the patent litigation conversation soon, although it is easy to believe that this experience may have soured him on blogging or changed his voice substantially. Here is Cisco’s explanation of Troll Tracker’s status from Cisco’s official blog, The Platform:
As an employee, Rick is free to continue his personal blog, Patent Troll Tracker, in compliance with the revised policy. Rick has many fans who appreciate the information he collects and disseminates on patent litigation trends and recognize his blog as an important voice in the on-going national dialogue on patent issues.
IP Law360 (subscription required) has a detailed article this morning outlining Troll Tracker’s history, including several quotes from Ray Niro of Niro Scavone who received substantial media attention after offering a reward for Troll Tracker’s identity. Niro reportedly likened Cisco’s policy to “repairing a sidewalk after someone was hurt” and said that some of Troll Tracker’s statements were “hurtful, harmful and, in many cases, 100% inaccurate.” According to the article, Niro plans to depose Troll Tracker in Illinois Computer Research, LLC v. Fish & Richardson, No. 07 C 5081 (N.D. Ill.) (Pallmeyer, J.) — click here to read more about the case in the Blog’s archives.
Another note on anonymous blogging and commenting, Rob LaGatta at LexBlog addressed the Troll Tracker situation and my anonymous blogging post last week with an important point, click here for Rob’s post. Anonymous blogging and commenting is a relatively small part of legal blogging and most anonymous material is not problematic. It is easy to get side-tracked by the occasional offensive anonymous content. But the vast majority of legal blogs operate without problems with either unprofessional or anonymous content.

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