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Blawg Review #168 is available at Jeffrey Mehalic’s West Virginia Business Litigation blog (another LexBlog blog) – click here for the post. It is another excellent review, although it is a bit light on IP. Additionally, Mehalic has a very even-handed post about the settlement of a West Virginia suit between West Virginia University and Rich Rodriguez, the new football coach of my University of Michigan Wolverines. While the subject matter of that dispute is not necessarily relevant to Chicago IP litigators (Coach Rodriguez is paying his full $4M buyout over time, much of it funded by the University of Michigan), Mehalic has an interesting side note about a contract the court reporters put on each transcript in the case requiring that no copies be made or used without paying the court reporter for them – click here for the post. My first reaction is, and always has been, that the reporters hold the copyright because the transcript is their interpretation and compilation of what was said. But Mehalic disagrees, and makes a good point. The copyright in a (usually) verbatim recitation of a proceeding has to have a very thin copyright, if any.
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Continue Reading Blawg Review #168 — Go Blue!

As usual, on a holiday I take a break from posting about cases and bring you a holiday-themed patent. U.S. Patent No. 7,240,376 assigned to Riddell of Chicago covers a football helmet with ear flaps that extend to protect a portion of a wearer’s jaw. This is not exactly a patent focused on the New Years holiday or setting your goals for 2008. But my focus will be on watching my Wolverine’s and my wife’s Illini play football today.
Happy new year. May 2008 bring you happiness and success.
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Continue Reading Happy 2008

Congress enacted the Trademark Dilution Revision Act (the “TDRA”) about one year ago in an effort to resolve numerous open trademark issue.* Many believe that the TDRA has opened more questions than it answered. The University of Michigan Law Review’s First Impressions blog recently addressed those issues with a series of articles:
Dilution’s (Still) Uncertain Future
Graeme Dinwoodie, Chicago-Kent College of Law
Mark Janis, University of Iowa College of Law
Looking at the litigation history of trademark dilution.
What is Dilution, Anyway?
Stacey Dogan, Northeastern University School of Law
Considering the underlying meaning of dilution.
The Trademark Dilution Revision Act of 2006: A Welcome — and Needed — Change
Dale Cendali & Bonnie Schriefer, O’Melveny & Myers LLP
Explaining why the TDRA clarifies and strengthens First Amendment protections.
The Dilution Solution: Populating the Trademark A-list
Scott Wilcox, University of Michigan Law School
Looking at the court as arbiters of fame.
* For more on the TDRA, click here for the Blog’s archives and click here for the Seattle Trademark Lawyer’s coverage of the TDRA’s first anniversary.
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Continue Reading A Look at the Trademark Dilution Revision Act of 2006

I have been meaning to highlight the University of Michigan Law Review’s recent Supreme Court, Federal Circuit, and Patent Law edition for some time. The day before the Michigan-Ohio State match-up for the Big Ten title and a trip to the Rose Bowl seems like an appropriate time to do it. The article contains excellent analysis of the future of patent law and the effects of recent Supreme Court rulings, in particular KSR. The specific articles are:
Rebecca S. Eisenberg, The Supreme Court and the Federal Circuit: Visitation and Custody of Patent Law
John F. Duffy, KSR v. Teleflex: Predictable Reform of Patent Substance and Procedure in the Judiciary
Harold C. Wegner, Making Sense of KSR and Other Recent Patent Cases
Robert A. Armitage, Now That the Courts Have Beaten Congress to the Punch, Why Is Congress Still Punching the Patent System?
Stephen G. Kunin & Andrew K. Beverina, KSR’s Effect on Patent Law
Each article is worth the read, perhaps as you watch the game tomorrow.
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Continue Reading Michigan Law Review on SCOTUS, the Federal Circuit and Patent Law

There is a debate brewing in the patent litigation community over the correct scope of a state institution’s waiver of 11th Amendment immunity when that institution asserts its patents. In Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999), the Supreme Court held that state institutions were immune from patent infringement suits. Of course, if a state institution asserts a patent claim against a party, immunity is generally waived as to that party for counterclaims. But the Federal Circuit recently held in BPMC v. California Dept. of Health (Fed. Cir. 2007), that when the California Department of Health (“Cal. DoH”) intervened as a plaintiff in a patent suit (which is considered a waiver of immunity), it is only a waiver as to that suit. So, when the original suit was dismissed because of improper venue, the waiver was rescinded. As a result, the defendant in the first case, BPMC, could not bring a declaratory judgment suit that mirrored the original suit because of the Cal. DoH’s 11th Amendment immunity.
The Federal Circuit’s decision has ignited substantial controversy (click here for the WSJ Law Blog’s article on the subject and click here for IP Biz’s responsive blog post) and some are predicting that this will be the next patent case that the Supreme Court takes on cert. It is an interesting issue, but not one that we see often in the Northern District, which caused me to investigate whether Chicago-area colleges are prolific patentees. None makes the top ten, like my alma mater the University of Michigan – Go Blue! But there is some substantial patenting going on at Chicago-area universities. The following chart show the number of patents assigned to the identified universities or their related entities between 1969 and 2005:
Chicago-Area University Utility Patents 1969-2005 School Patents
U of Chicago 309
IIT 59
ISU 4
Loyola, Chicago 33
Northwestern 370
U of Illinois 552
As you can see from the chart, this issue has significant consequences for Chicago-area schools. I will keep you posted as the case develops.
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Continue Reading State Immunity’s Impact on Northern District Patent Suits

As a life-long Lions fan — yes, I did say "fan" — it pains me to say "Go Bears", but this is a Chicago-focused blog and so, with Chicago’s Bears preparing for Sunday’s Big Game* I feel obliged to write the post.  In order to keep this law-related, I direct you to the WSJ Law…

Father Robert Drinan, S.J. died on Sunday.  Father Drinan was a founder of modern (post-Watergate) legal ethics and a colorful, important character in American political history, having been a member of the House Judiciary Committee during the Nixon impeachment proceedings and an outspoken critic of American activities in Vietnam and Cambodia while he was in Congress.  Father Drinan was also a professor at Boston College (actually the Dean) and then at Georgetown.  While getting my JD at Georgetown, I was blessed to spend a considerable amount of time with Fr. Drinan as an Editor on the Georgetown Journal of Legal Ethics, created by Fr. Drinan and still the only ethics journal in the country, and when I took several of his classes, including his Advanced Legal Ethics Seminar.  Fr. Drinan loved teaching and he had an endless supply of experience from which to teach.  Continue Reading Father Drinan: Losing A Legend