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EFF, TXED, DMCA exceptions, TPP, SAP, Google, 1984 – the week in IP



Michael Loney


An amicus brief aimed at reducing the Eastern District of Texas’s dominance, Canadian concerns over the Trans-Pacific Partnership, limited exceptions to the DMCA being announced, SAP and Google reaching a patent agreement, and George Orwell’s estate making an ironic demand were in the IP headlines in the past week

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 alternative feedstock.

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.

Canadian concerns

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.

canada flagThe 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 50.

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 new logoGoogle 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 privateering.

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 infringement)

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 back

PTAB provides guidance on AIA estoppel provisions

"Good possibility" of US small copyright claims court being set up

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

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ICYMI: Our report on this week's #SCOTUS ruling in Star Athletica v Varsity Brands https://t.co/Rf3TWplNUrhttps://t.co/TrZ5YcvKQr

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@Oblon_IP @PatentPostGrant Congratulations Scott! #mipawards

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@KellyIPllp Well done to all at the firm!

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