Pending patent cases, Sherlock Holmes, Kim Kardashian, LG, Google – the week in IP

The Patently-O blog this week took a look at how the number of pending patent cases is changing. With the number of patent cases filed falling – Lex Machina this week noted a 33% drop in October compared to October 2013, for example – Patently-O dug into the pending cases to give another perspective on the state of patent litigation.

Its findings are consistent with the conclusion that the number of patent litigations is declining, although it noted that the number of pending cases is still well above that in October 2010.

The Patently-O folks also had a look at how the USPTO is implementing Alice v CLS Bank in patent examination, in an article in the 2014 Patently-O Patent Law Journal. It ranked the top applicants with post-Alice allowance withdrawals. Unsurprisingly IBM, eBay and Microsoft were the top three assignees, named in 47, 19 and 15 applications respectively. Perhaps more surprisingly, gaming companies IGT and WMS Gaming are in the top 10. Also appearing are finance companies JP Morgan, American Express and Bank of America, which reflects the impact of Alice on financial services patents.

The Supreme Court has declined to hear the appeal of a dispute over the copyright on Sherlock Holmes. On November 2 it left intact a ruling that 50 works by Sir Arthur Conan Doyle featuring the famous detective are in the public domain.

Doyle’s estate had been trying to get writer Leslie Klinger to pay a licence for using the Sherlock Holmes character in a compendium of new stories. A fee was paid for the first The New Annotated Sherlock Holmes but Klinger refused to pay a licence fee for the second installment.

In June, the Seventh Circuit ruled that the copyright on 46 stories and four novels featuring Holmes were in the public domain. In August, Judge Richard Posner ordered Doyle’s estate to pay legal fees to Klinger and branded its demands “a form of extortion”.

The past week threw up a bizarre copyright question: can you copyright a backside? As reported in a post on The IPKat blog, Kim Kardashian believes fitness model Jen Selter is copying her poses when posting pictures of her backside on Instagram. Kardashian has reportedly asked her lawyers to investigate whether there is a copyright infringement.

The IPKat blog gave a detailed analysis of the issues involved, from an EU perspective at least. It quickly establishes that you cannot copyright a body part because it is neither a work nor the author’s own intellectual creation.The issue gets less clear when breast or bottom implants are involved, which could be seen as an artistic work.

Regarding the question of whether there could be copyright in a pose, the IPKat blog said this is issue falls between unprotectable ideas and protectable expressions. “However, the pose of a subject may contribute to the overall originality of, say, a photograph [or, as Kim knows well, a selfie],” said the blog post.

The blog post said Selter’s selfies could be considered to be infringing on Kardashian’s copyright. “Particularly if Kim was able to demonstrate that the "internet bottom sensation" does not have a case of "independent creation" she could well succeed in her claim. As the Red Bus case … taught us in fact, if the "the common elements between the defendants' work and the claimant's work are causally related", ie "they have been copied", this may lead to a finding of infringement.”

LG Electronics and Google this week entered into a long-term patent cross-licensing agreement covering a broad range of products and technologies. The agreement covers the two companies’ existing patents as well as those filed over the next 10 years.

This agreement builds on the long-standing alliance between Google and LG Electronics, the companies said.

“LG values its relationship with Google, and this agreement underscores both companies’ commitment to developing new products and technologies that enhance consumers’ lives,” said J.H. Lee, executive vice president and head of the LG Electronics Intellectual Property Center.

Also on the blog this week:

Play Interflora Snakes & Ladders

Patent reform is more likely, but less needed

Avoid the antitrust trap in Asia

Online now – IP Clinic on hashtag rights

And in our news and analysis:

MPHJ reaches settlement with FTC

Interview: Mike Weatherley MP, UK IP adviser

Interflora v M&S – reaction from around the web

18% of post-Octane motions for fee awards granted

Interflora Adwords case set for retrial

Federal Circuit publicly reprimands Edward Reines over Rader email

ANDA litigation set for record year – report

Revised UPC Rules provide bifurcation safeguards

Argentina’s Supreme Court clarifies liability standard for search engines

Plavix case settled before Supreme Court of Canada hearing

NPEs not faring worse at PTAB than other companies – study

Vinson & Elkins hires IP litigator from Fenwick & West

Maynard Cooper hires IP attorney in San Francisco

Plain pack opponents make their case in TRIPs

WIPO row over GI treaty rules