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Google, customer stays, Apple, Samsung, Oracle, TTAB – the week in IP



Michael Loney


Google giving away patents to start-ups, David Kappos arguing customer stay legislation is wrongheaded, tech companies supporting Samsung against Apple, Oracle and Google suggesting a trial in spring 2016, and a TTAB Batman decision were in the IP headlines in the past week

Giving start-ups a leg up?

Google this week attracted attention for launching a programme for start-ups to receive patents from Google, reports TechCrunch. The technology website clarified that non-organic means those bought from third parties rather than developed in-house.

Google has named it the Patent Starter Program. The offer is only open to the first 50 eligible start-ups, and companies must commit to joining the LOT Network, of which they will get two years of free membership. Eligible companies must also have had revenues of between $500,000 and $20 million in 2014.

Successful applicants will be sent within 30 days a list of up to five families of patents, of which it can select two. Google will keep a non-exclusive licence to all the divested assets.

Google explained its motivations for the programme: "We are big fans of the LOT Network program, which we think of as a great long­term way to help fight against patent trolls. So, encouraging smaller companies to join the LOT Network is just something that we think makes great sense. Further, being able to help support smaller companies and developers by providing them patents with the expectation that such companies and developers will grow and further contribute to a responsible patent system seems like a pretty good idea to us."

The agreement includes a stipulation that if the acquired assets are used to sue others, the company "will owe Google and material penalty".



Having their say on customer stay

David Kappos in an article on The Hill website this week laid out his opposition to covered customer stay provisions in legislation being considered in the US Senate and US House of Representatives.

Customer stay allows a manufacturer to take on accusations of patent infringement in court, protecting retailors, consumers and other covered customers from their own lawsuits, which would be stayed until the patent owner or manufacturer have sorted out their dispute.

"The 'customer stay’ language in the pending legislation could ravage intellectual property rights, while ironically causing more patent litigation instead of less," wrote Kappos. "Not the kind of 'two-for’ we need for our patent system right now."

Kappos said the language in front of Congress uses a hazy definition of customer that encompasses everyone from the end-user of a technology to commercial entities high up the chain. The bills also have a rigid application of "stay" by making it mandatory for judges.

"If the current 'customer stay’ language becomes law, the maker of a patent-infringing product could easily evade accountability by arranging a network of overseas manufacturers to construct the infringing components, and then assemble the pieces. Such supply-chain positioning is easily manipulated," said Kappos.

In this scenario, when the patent owner sues the product maker each manufacturer could take turns asking for stays, says Kappos, in far-flung venues and with different, more complicated rules than the patent owner faces when just suing a company that sells an infringing product.

He said customer stays do make sense in cases where so-called mom-and-pop stores are unfairly targeted by someone abusing the patent system, but he pointed out courts already have the discretion to grant stays.

Kappos’ piece was criticised by Matt Levy on the Patent Progress site, although he did not name Kappos by name when saying in a blog post that "his op-ed is pure fantasy, and it’s written by someone who should know better".

Levy said Kappos’s scenario ignores the actual language in the House and Senate bills, which are identical for this provision.

The customer stay only applies to a "retailer or end user". A "retailer" is defined as "an entity that generates its revenues predominately through the sale to the public of consumer goods or services, or an affiliate of such entity, but shall not include an entity that manufactures or causes the manufacture of a covered product or covered process or a relevant part thereof". An "end user" shall "include an affiliate of such an end user, but shall not include an entity that manufactures or causes the manufacture of a covered product or covered process or a relevant part thereof".

Levy said both of these definitions clearly exclude "product maker".


 

Samsung gets tech support

Silicon Valley companies including Google, Facebook, Dell, HP and eBay have given their support to Samsung in its appeal over damages awarded to Apple for patent infringement.

A coalition of companies filed an amicus brief in support of an en banc rehearing of the case, saying the ruling will have "significant detrimental consequences for the continued development of useful modern technologies" if it stands.

The brief said: "If allowed to stand, that decision will lead to absurd results and have a devastating impact on companies who spend billions of dollars annually on research and development for complex technologies and their components."

IP blogger Florian Mueller analysed the brief in a detailed blog post on FOSS Patents.

"The greatest strength of that amicus brief is that it provides examples that, under Judge Koh's and the Federal Circuit panel's reasoning, would all result in a potential disgorgement of unapportioned infringer's profits," said Mueller. "It mentions the numerous components in a 'smart television’ set, and notes that the aspects that could be covered by design patents include 'even the shape of a single icon within an application’."



Oracle and Google rematch in spring 2016

Mueller at FOSS Patents also revealed the latest in the spat between Oracle and Google. The companies filed a joint status report on Thursday, in which they both suggested the next Android-Java copyright trial should take about 10 days and occur in spring 2016.

However, Oracle suggested a date of April 4 2016 whereas Google suggested May or June.

Mueller commented: "Throughout this litigation, Google has been attempting to stall, a fact that apparently didn't go unnoticed by the judge. However, it has played this smart, trying to maintain at least some credibility, and I guess that's why it doesn't propose an even later trial date."



Holy confusingly similar, Batman!

A divided Trademark Trial and Appeal Board panel this week sustained the opposition to the mark GOTHAM BATMEN for general business networking referral services, reports The TTABlog.

The panel found the marks confusingly similar to DC Comics’ registered mark BATMAN.

The Board said: "Because Opposer’s BATMAN mark is famous and it has been licensed for use on a myriad of products, countless individuals have been exposed to Opposer’s BATMAN mark and to its use on or in connection with collateral products, including t-shirts and baseball balls and bats. Under these circumstances, individuals familiar with Opposer’s BATMAN marks and their associated goods and services, when confronted with Applicant’s mark in connection with softball games and networking services, will consider such activities to be sponsored by or affiliated with Opposer."

Judge Taylor dissented, saying that DC Comics had not met its burden to prove fame.



Also on the blog this week

Tell MARQUES about yourself and win a bottle of Cremant

Join Managing IP's upcoming Asia events


In our news and analysis this week:

Federal Circuit says TTAB must take third-party registrations into account more

WilmerHale adds partner in LA

Federal Circuit says biosimilar applicants can decline patent dance

ARIPO DG speaks out on the Banjul Protocol and PAIPO

Interview: Fernando dos Santos on PAIPO and ARIPO

Q&A: Nokia’s Richard Vary on CJEU judgment in Huawei v ZTE

Court quashes UK private copying exception

Fake clothes, shoes and accessories cost EU companies €26bn a year - report

PTAB petitions hit 2015 high in June

Data: PTAB petitioners, patent owners and law firms in the first half of 2015

Huawei v ZTE – analysis from across Europe

Online copyright pirates face 10 years in prison under UK plans

Unitary Patent and UPC: progress report part II

Unified Patent Court: where will it be?

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