Also on the blog this week:
Takeaways from the AIPLA Annual Meeting
EFF seeks to shut down TXED
The Electronic Frontier Foundation (EFF), Public Knowledge,
and Engine Advocacy this week asked the Federal Circuit to
consider its amicus brief in the case In re TC Heartland
that seeks to see VE Holding relegated to a footnote in
history. The 1990 Federal Circuit case VE Holding expanded the
places patent owners could sue for infringement.
"As we explain in our proposed
amicus brief, VE Holding has allowed patent owners to sue in
practically any district in the country, no matter how tenuous
the connection to the alleged infringement. In turn, this has
given rise to 'forum selling’,"
the EFF explained.
The EFF said this phenomenon is seen in the Eastern District
of Texas, with judges there adopting rules that tend to favour
patent owners. "As we’ve noted on several
occasions, the Eastern District rules allow patent owners with
dubious claims and weak patents to more easily leverage the
cost of litigation in order to get settlements they
don’t deserve," it said.
It continued: "This is causing significant harm to those who
are on the receiving end of a frivolous lawsuit. Oftentimes it
is cheaper to settle even a frivolous case than to fight in
hopes you may be able to recover some of your
attorneys’ fees at the end. This is unfortunately
especially true in the Eastern District. It was recently
reported that in the four years that Judge Gilstrap has been on
the bench, he has never granted a fees motion (as the article
points out, he’s currently considering at least
one now, but it hasn’t been ruled on yet)."
The EFF noted Judge Gilstrap has more than 1,000 patent
cases in front of him.
"We hope the Federal Circuit takes the opportunity In re TC
Heartland presents to reexamine its law. The judicial system
should strive to see patent cases decided on their merits, not
based on the costs imposed by procedural rules in distant and
inconvenient forums," the EFF concluded.
Library of Congress announces DMCA exceptions
The US Library of Congress has granted limited exceptions to
then Digital Millennium Copyright Act (DMCA), as
noted by Fish & Richardson.
The exceptions cover 22 types of
uses affecting motion pictures, e-books, 3D printers, mobile
phones and video games. The exceptions are based on
recommendations from Maria Pallante (right), the US Register of
Copyrights, and are effective until October 2018.
The exceptions include for:
computer programmes that operate cell phones, tablets, mobile
hotspots, and wearable devices such as smartwatches, to allow
connection of a device to an alternative wireless network,
known as "unlocking";
computer programmes that operate smartphones, tablets and other
all-purpose mobile computing devices, and smart TVs, to allow
the device to interoperate with or to remove software
applications, known as "jailbreaking";
computer programmes that operate devices and machines primarily
designed for use by individual consumers, including voting
machines, motorised land vehicles, and implantation medical
devices, for purposes of good-faith security research
(effective in 12 months, except for voting machines);
video games for which outside server support has been
discontinued, to allow individual play by gamers and
preservation of games by libraries, archives and museums (as
well as necessary jailbreaking of console computer code for
preservation uses only)
computer programmes that operate 3D printers, to allow use of
The Electronic Frontier Foundation
welcomed these exceptions saying they are needed thanks to
a fundamentally flawed law that forbids users from breaking
DRM, even if the purpose is a clearly lawful fair use.
The Canadian Press this week
reported on concerns over the recently agreed Trans-Pacific
Partnership (TPP), with some calling on recently-elected prime
minister Justin Trudeau to act.
The TPP deal could replace
Canada’s system of companies that receive
copyright complaints notifying their users about potential
breaches, with copyright holders needing to convince a court to
get the offending content removed. Instead, it could bring in
the US-style notice and takedown system. The TPP could also
make Canadians liable for penalties for transferring content
they own from one device to another and uploading highlights
from professional sports. In addition, the agreement would
increase the copyright term on original works to 70 years from
The Canadian Press quoted copyright lawyer John Simpson of
Shift Law saying the Canadian government actively decided not
to pursue a notice-and-takedown system or expand the penalties
for copyright infringement when it amended its intellectual
property rules in 2012.
"The concern is, under the TPP, that a lot of that would be
undone," he said. "And that would be very disruptive."
SAP and Google in agreement
Google and SAP have
entered into a long-term patent cross licensing agreement
that covers a broad range of products and technologies. The
agreement covers the companies' existing patents and those
filed over the next five years.
This agreement advances the relationship between the
companies, which joined the LOT Network in 2014, a
patent-licensing agreement designed to reduce for its members
patent troll litigation and the growing practice of patent
Tony DiBartolomeo, chief IP counsel at SAP, commented:
"Patent cross-license agreements like this one increase freedom
to operate and prevent distractions from unnecessary patent
litigation. And, like Google, SAP welcomes similar discussions
with like-minded companies.'
Big Brother is watching you (for copyright
In an ironic development, the estate of George Orwell is
cracking down on people using the number "1984",
reports Torrent Freak.
The estate sent a takedown request targeting internet radio
host Josh Hadley, who had listed for sale T-shirts on CafePress
with the slogan "1984 is already here".
The complaint said the T-shirt includes "George Orwell
quotes", despite the only reference being the number 1984.
"First off is the irony of the estate of George Orwell being
all Orwellian but second is that you can’t
copyright a number," Hadley told Torrent Freak.
In our news and analysis this week:
UPC Rules of Procedure released
The parody exception analysed
Kyle Bass PTAB institution success rate swings past 50%
Implementation of Canada’s Trademark Act pushed
PTAB provides guidance on AIA estoppel provisions
"Good possibility" of US small copyright claims court being set
Prior art enablement and Octane attorneys' fees – last
week at the Federal Circuit
Brazil's battle against the patent backlog
Simone IP Services adds new director
Sponsored roundtable: Solving the India patent puzzle
A new fair use analysis?
Meet the new AIPLA President Denise DeFranco
Experts are back in patent cases
Focus shifts towards trade secrets