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Rader’s good-bye, Microsoft and Canon deal, Lindsay Lohan lawsuit, BP denied – the week in IP



Michael Loney


Randall Rader saying farewell to the Federal Circuit, Microsoft and Canon agreeing a patent cross-licensing deal, Lindsay Lohan suing a video games maker, Judge Lucy Koh banning the use of the term “patent troll”, and BP being denied a colour trade mark in Australia were among the intellectual property stories hitting the headlines in the past week

Below is a selection of intellectual property stories attracting interest on the internet in the past week that were not covered on www.managingip.com (see the bottom of this blog post for the top stories published by Managing IP this week).


Rader bids fond farewell

Judge Randall Rader had his last day at the Federal Circuit on June 30. He is to pursue teaching, lecturing and travel. Rader sent a letter to his Federal Circuit colleagues saying farewell, which the PatentlyO blog posted.

"Over three and a half decades ago, I sat across from Howard Markey, Chief Judge of the Court of Customs and Patent Appeals, in my Senate Judiciary Committee office," Rader wrote. "In a meeting I recall with stunning clarity, he showed me the vision of a court dedicated to the uniformity, consistency, and strength of vital areas of commercial law to be entrusted to the new Federal Circuit. Inspired by his dreams, I set out to work vigorously for the enactment of the Federal Courts Improvement Act of 1981. To this day, I regret that I allowed judges from the Ninth Circuit to dissuade me from offering an amendment to include copyright and trademark cases within the jurisdiction of the Federal Circuit. To this day, however, I rejoice that I obeyed Chief Judge Markey’s request that I hear cases every month without a break as a circuit judge."

He went on to say: "With the passing of each judicial generation, I hope that the Federal Circuit perpetually renews Markey’ s vision of a judicial institution unlike any other in the world. To no other court does a nation, let alone the most powerful economic nation in the world, entrust legal decisions that shape world trade, innovation, and core commercial policies. Yet I can vigorously attest that this vast responsibility could not rest in more secure and capable hands. At some distant point in the future, I hope to sit again across from Howard Markey; I will assure him that his vision has been realised. . . and sustained!"



Grand image theft

American actress Lindsay Lohan is suing the markers of video game Grand Theft Auto, claiming a character in the latest version of the game is based on her likeness. In a lawsuit filed on July 2 in a New York court, Lohan claims unspecified damages from Take-Two Interactive Software, the owner of game maker Rockstar.

The suit claims the character Lacey Jones is an "unequivocal" reference to Lohan, depicting features including a likeness to her clothing line and the Chateau Marmont hotel where Lohan once lived.

"The portraits of the Plaintiff incorporated her image, likeness, clothing, outfits, Plaintiff’s clothing line products, ensemble in the form of hats, hair style, sunglasses, jean shorts worn by the Plaintiff that were for sale to the public at least two years" says the suit.

The game includes a mission to take the Jones character home and escape the paparazzi.



Microsoft and Canon get strategic

Microsoft and Canon on Wednesday said they had "broadened their strategic alliance" with a patent cross-licensing agreement. With this agreement, Microsoft and Canon gain licenses to each other’s growing patent portfolios.

"This collaborative approach with Canon allows us to deliver inventive technologies that benefit consumers around the world," said Nick Psyhogeos, general manager, associate general counsel, IP Licensing of the Innovation and intellectual property group at Microsoft. "Microsoft believes cooperative licensing is an effective way to accelerate innovation while reducing patent disputes."

This agreement includes certain digital imaging and mobile consumer products. Microsoft and Canon have a long history of collaborating to bring high-quality, cutting-edge products to consumers, including color technology. Contents of the agreement will not be disclosed.

It was part of a busy week for IP news from Microsoft. It also announced that Erich Andersen has taken over from Horacio Gutierrez as head of innovation and intellectual property.


A troll by any other name

Judge Lucy Koh of the US District Court for the Northern District of California has banned use of the term "patent troll" in the GPNE v Apple trial.

GPNE alleges that Apple iPads and iPhones infringe its patents on data transmission. GPNE urged Judge Koh to prohibit use of the term "patent troll" before the jury.

In a pretrial order, Judge Koh said: "Apple may not refer to GPNE as a 'patent troll,’ 'pirate,’ 'bounty hunter,’ 'privateer,’ 'bandit,’ 'paper patent,’ 'stick up,’ 'shakedown,’ 'playing the lawsuit lottery,’ 'corporate shell game,’ or 'a corporate shell’."

She did, however, provide some terms that are acceptable for use.

"Apple may refer to GPNE as a 'non-practicing entity,’ 'licensing entity,’ 'patent assertion entity,’ 'a company that doesn’t make anything,’ or 'a company that doesn’t sell anything.’ The Court finds that this conclusion strikes the balance between allowing Apple to argue that GPNE’s status as a non-practicing entity is relevant to the calculation of reasonable royalties and to secondary considerations of non-obviousness without unduly prejudicing GPNE or confusing the jury. See Fed R Evid. 403."



BP feeling blue over green mark

BP has failed in its 12-year bid to register a trade mark for the shade of green that dominates its logo with IP Australia.

The IP office turned down the application, noting BP was unable to give "convincing evidence" that the colour – Pantone 348C – was indelibly linked to BP in the averege oil buyer’s mind.

A spokeswoman for the energy company would not say whether it would continue trying to claim the colour. "The colour green has been central to the BP brand since the 1930s and we believe it should be protected," she told The Guardian.

Woolworths had considered the shade of green in its apple logo too similar to BP’s, and legal battles between the two continued until 2013.





Managing IP published the following stories this week, available to subscribers and triallists:


Divisions over potential Johnson appointment as USPTO director

Mayer Brown hires Fitzpatrick partner in New York

Andersen replaces Gutierrez as IP head at Microsoft

"Chilling effect" of Mayo and Myriad affecting patent applications

Concerns linger over Myriad guidance as feedback deadline looms

USPTO Denver office opens amid high hopes

USPTO "thinking big" with new initiatives

Hansen slams "culture of public domain"

From the blog:

Can intellectual property ever be non-political?

Football World Cup quiz

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