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Over the weekend, the Chicago Tribune’s Ameet Sachdev reported that an ongoing copyright dispute may be coming to a head at the corner of Michigan Avenue and Randolph Street in Chicago, click here for the Tribune article. In the 1980s, Israeli artist Yaacov Agam was commissioned to create a sculpture for what would become the Stone Container building at 150 N. Michigan Avenue.* Over time, Chicago weather faded the work and the current owner hired an expert to restore the multi-hued work to its original look. Agam is unhappy with the restoration because he believes the colors were not restored to the exact shades he originally used. The work is now back on display at the corner of Michigan and Randolph, and Agam is headed to Chicago this weekend to view the restored, or as he calls it “reconstructed,” work.
In a previous Tribune article, Agam’s counsel admits that VARA, the Visual Artists Rights Act, did not protect Agam’s position because the work was created before 1990 and because Agam no longer owns his work. But Agam claimed to hold the copyright in the work and argued that the copyright allowed him to prevent the current owner from creating a derivative work, which Agam believed the restored or reconstructed work to be because of the changed colors. The dispute is likely governed by the contract commissioning Agam to make the work. Of course, it is possible, and maybe even likely, that the contract is silent or ambiguous regarding derivative works or that it was an oral contract without proof of what the parties intended. It will be interesting to see how the dispute is resolved and, I am sure, people who work in the area will be glad that the wooden stump that stood in the work’s place has been replaced by some restored version of the work.
* Click here for a picture of the sculpture and further discussion of this dispute at the One-Way Street.
** Click here to read the blog’s post about that article.
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Continue Reading Creator Returns to Inspect “Reconstructed” Work of Art

The Chicago Tribune has set up a live blog, written by Bob Secter and Jeff Coen, of the government’s criminal case against Tony Rezko. The blog promises daily, “gavel-to-gavel” coverage of the Rezko trial — click here for background on the case from the Tribune. This case does not have an intellectual property angle that I am aware of, but it provides an excellent view of a trial as seen through the eyes of non-lawyers, a very important perspective for litigators. Additionally, Judge St. Eve gets at least her share of IP cases — click here for discussion of Judge St. Eve’s opinions in the Blog’s archives.*
Here is some of the Tribune’s coverage of the voir dire from yesterday, largely performed by the Court:
Another potential juror, No. 475, teaches cooking classes, often on Fridays. St. Eve sounded as if she was ready to work with the cooking teacher to accommodate her schedule. “If we structured the trial so that it would go Mondays through Thursday and not have trial on Fridays, the days you have cooking classes, would that be good for you?” the judge asked.
Some of St. Eve’s questions were more chatty than legal. The cooking teacher, for example, was asked what was on the menu at her next class. The answer: Beef Bourguignon and mashed potatoes.
Another juror was asked where she liked to go snowboarding. Still another was asked about her desire to learn Spanish. “Have you learned any words yet?” the judge asked.
“Just the bad things,” the woman responded.
St. Eve also complimented No. 475 on an answer the prospective juror gave to a presubmitted question about whether people who contribute to a campaign should expect something in return. “A thank-you would be nice,” the woman wrote.
I will keep an eye on the Tribune’s blog and will highlight other especially interesting items from it.
* Judge St. Eve also gets her share of high profile cases. She must be tired of the publicity after having the Conrad Black trial and now the Rezko trial within twelve months of each other.
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Continue Reading Live Northern District Trial Blog

The Chicago Sun-Times reported that Judge Filip’s nomination as Deputy Attorney General has cleared one of its final hurdles — click here for the story. Senator Dick Durbin (D-Ill.) agreed to remove a hold placed on Judge Filip’s confirmation vote after Attorney General Michael Mukasey answered Senator Durbin’s questions regarding the legality of interrogation techniques. According to a Chicago Tribune story (click here for the story), Judge Filip is expected to be confirmed by the Senate. Of course, that is not surprising since the Senate previously confirmed him to become a federal district judge.
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Continue Reading Judge Filip to Get Senate Confirmation Vote

The Tribune ran a story in its weekly legal industry column yesterday about Ray Niro, senior partner in local patent litigation firm Niro Scavone and a very accomplished trial attorney. Niro is in a dispute with anonymous blogger Troll Tracker. Troll Tracker focuses his blog on cases brought by patent licensing companies or non-practicing entities,* a number of whom are represented by Niro and the Niro Scavone firm. Because of the firm’s prominence in plaintiff-side patent work, Troll Tracker has also discussed both Niro and the firm. That drew Niro’s attention. Niro sent the anonymous Troll Tracker a letter accusing him of infringing a patent held by client Global Patent Holdings which the Tribune described as “covering the compression of data over the Internet, a technology that allows, for instance, Web sites to display JPEG images.” Niro then offered a $5,000 “bounty” for unmasking Troll Tracker’s identity, which he later increased to $10,000. Here is how Niro explained the bounty in the Tribune article:
I want to find out who this person is . . . . Is he an employee with Intel or Microsoft? Does he have a connection with serial infringers? I think that would color what he has to say.”
I have generally stayed away from this story because it is closer to patent gossip than the Northern District IP litigation that is the focus of this blog. But I felt that I should cover it since it ran in the Tribune.
* I have posted before about my dislike of the patent troll name – click here for a post which discussed the Troll Tracker blog and here for a post about Ray Niro’s article calling for an end to the use of patent troll. I think it carries unnecessary baggage and creates unnecessary animosity in legal proceedings that tend to generate plenty without injecting more. So, I was glad to see last week that Troll Tracker is pulling away from the use of the name – click here for Troll Tracker’s post about the term.
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Continue Reading Tribune on Patent Bounties

This morning the Chicago Tribune ran an article (click here for the Tribune’s piece) based upon IFI Patent Intelligence’s ranking of 2007’s top U.S. patent assignees — click here for IFI’s press release. The article focused on Motorola’s movement from number 34 in 2006 to 44 in 2007. Motorola explained that it has shifted focus from a goal of being one of the largest patent assignees to a more limited portfolio focused around Motorola’s core technologies. I was quoted in the story about the value of what I refer to as “strategic patenting”:
Motorola’s approach is a more common one across industries, said David Donoghue, special counsel at DLA Piper in Chicago who specializes in intellectual property. In general, most companies are “focusing their patenting efforts on their most important technologies and their biggest innovations — the things that differentiate them from their competitors,” Donoghue said.
There is also value in having a large patent portfolio, particularly if you need to use your portfolio for cross-licensing or defensively against a patent-aggressive competitor, or if you are not sure which of your technologies will drive your industry and profits in five or ten years.
Shortly after reading the Tribune article this morning, an IPLaw 360 article caught my attention (click here for the story, subscription required). The article discussed a study by Morgan Lewis attorneys Craig Opperman and Carina Tan (to read the Intellectual Asset Management article about Opperman’s and Tan’s research, click here on Opperman’s biography and click the link to the article in the upper right hand corner of the page).* Opperman and Tan argue that a high volume, low cost (per application) patenting strategy has a greater final cost than a strategic patenting strategy in which a company pays more for each individual application, but files fewer applications clustered around their core technologies. They also offer to provide a spreadsheet proving their analysis to anyone who contacts them and asks for it. It is an interesting premise. Of course, it does not appear to take in to account those companies that have a high volume strategy without unnaturally driving down their patent costs. I think few would argue that, if a company has the resources either in terms of in-house prosecutors or prosecution budget, more high value patents are better than fewer high value patents.
* I would provide you a pdf of the article, but I want to stay on the right side of the copyright laws.
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Continue Reading The Chicago Tribune & David Donoghue on Strategic Patenting

The Chicago Tribune has had a few IP-related articles this week. First, the Tribune reported – click here for the story — that the House is about to take up a bill that would allow an abbreviated approval process for generic versions of biotech drugs, commonly known as biosimilars or biogenerics, similar to abbreviated new drug applications. The Senate Health, Education, Labor and Pensions Committee approved a similar bill in June, called the Biologics Price Competition and Innovation Act of 2007.
Second, the Tribune reported – click here for the story – about a new book, “The Telephone Gambit: Chasing Alexander Graham Bell’s Secret,” by Seth Shulman — which argues that Alexander Graham Bell, one of America’s most famous patentees, stole his most famous invention, the telephone, from his rival Elisha Gray. And Shulman argues that he was aided by attorneys and a corrupt patent examiner. The book is due out January 7. It looks like it could be an interesting read.
Third, the Tribune reported – click here for the story — that the Federal Circuit reversed in part the Western District of Wisconsin’s April 2007 decision which held that Google’s AutoLink and AdSense feature did not infringe HyperPhrase’s patents. The Court upheld Judge Shabaz’s decision that AdSense did not infringe the patents and remanded the case for further proceedings regarding whether the AutoLink feature infringed two of the patents in suit. Click here for a copy of the Federal Circuit decision.
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Continue Reading Tribune on Patents

The Chicago Tribune reported last week — click here for the story — that Northwestern University received $700M from Royalty Pharma in exchange for certain of Northwestern’s royalty rights to its patents covering pregabalin. Pregabalin is a key component of Pfizer’s Lyrica, which is used to treat nerve pain associated with diabetes, shingles and fibromyalgia. Northwestern plans to use some of the money to fund its new nanotechnology initiative.
I will be on a panel at Northwestern’s IP Law Week next month. Perhaps in light of Northwestern’s new found wealth I should have requested a speaker’s fee. Seriously though, this will be a great event and is worth your time if you are in town. They have not published their literature on the event yet, but as soon as they do I will post it.
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Continue Reading Northwestern Gets $700M for Royalty Rights

On Sunday, the Chicago Tribune reported on the latest round of the Sugar v. Splenda fight (click here for the article).  An initial hearing was scheduled for yesterday in the Central District of California regarding the suit five U.S. sugar companies — American Sugar Refining Inc., C&H Sugar Co. (owned by American Sugar), Imperial…

On Sunday, the Chicago Tribune reported that a copyright dispute is brewing on the corner of Michigan Avenue and Randolph Street in Chicago, click here for the Tribune article. In the 1980s, Israeli artist Yaacov Agam was commissioned to create a sculpture for what would become the Stone Container building at 150 N. Michigan Avenue.* Over time, Chicago weather faded the work and the current owner hired an expert to restore the multi-hued work to its original look. Agam is unhappy with the restoration because he believes the colors were not restored to the exact shades Agam originally used.
Agam’s counsel admits that VARA, the Visual Artists Rights Act, does not protect Agam’s position because the work was created before 1990 and because Agam no longer owns his work. But Agam claims to hold the copyright in the work and argues that the copyright allows him to prevent the current owner from creating a derivative work, which Agam believes the restored work to be because of the changed colors. The dispute is likely governed by the contract commissioning Agam to make the work. Of course, it is possible, and maybe even likely, that the contract is silent or ambiguous regarding derivative works or that it was an oral contract without proof of what the parties intended. It will be interesting to see how the dispute is resolved and, I am sure, people who work in the area will be glad when the wooden stump currently in the work’s place is replaced by some restored version of the work.
* Click here for a picture of the sculpture and further discussion of this dispute at the One-Way Street.
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Continue Reading Artist Agam Uses Copyright to Control Restoration of his Art