Category: Intellectual Property

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UCLA Law Review Vol. 63, Issue 1

Volume 63, Issue 1 (January 2016)
Articles

Navigating Paroline‘s Wake Isra Bhatty 2
Regional Federal Administration Dave Owen 58
Exhausting Patents Wentong Zheng 122

 

Comments

Post-Deportation Remedy and Windsor‘s Promise Kate Shoemaker 168
Forget Congress: Reforming Campaign Finance Through Mutually Assured Destruction Nick Warshaw 208
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Copyright on a Useful Article

I want to discuss a major copyright case that the Court added to its docket for the Fall.  The question presented in Star Athletica, LLC v. Varsity Brands, Inc. is “What is the appropriate test to determine when a feature of a useful article is protectable under section 101 of the Copyright Act?” This is an issue that has long vexed the circuit courts and is exactly the type of case that the Court should be taking while it’s a man down.

Here is the problem.  Copyright law says that functional/useful items generally cannot get protection. This makes sense because they are only supposed to get patents given the costs that exclusive rights in those sorts of products impose. But what if something has both functional and aesthetic features? Take a belt buckle.  It is functional in the sense that it holds up your pants.  But a jeweled belt buckle might well be an adornment that is more properly considered artistic and thus copyrightable.  How do you know?

Courts have put forward several possible tests.  One says that the issue is whether the item is primarily aesthetic or functional.  Another looks to the intent of the designer.  A third simply considers the totality of the circumstances. A fourth suggests that the aesthetic aspect must be “conceptually separable” from the functional one and able to stand on its own as a work.  And so on.

Read More

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Federal Trade Secret Law

I just wanted to note that Congress has passed a new federal trade secret remedy, which the President intends to sign into law.  Who says that nothing gets done in Washington.  (Though I doubt that this is a good move.)  The Act does not preempt state trade secret law, so it remains to be seen how much of a role the new federal remedy will have.

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Federal Trade Secret Protection

Yesterday the Senate unanimously passed a statute creating a federal cause of action for the violation of trade secret.  I do not know what the prospects are for this legislation in the House, but I want to express my opposition to the bill.

In general, I take a dim view of federal statutes that seek to take over regulation traditionally handled by the state common law.  There are situations where that is warranted, but this is not one of them.  Trade secret protection is in place in every state, and there is no reason to think that this system is inadequate.

Naturally, companies often prefer one national standard to many state standards, but in my view that does not justify federal action.  An article from Reuters commenting on the bill stated that trade secret cases are currently “relegated to state courts,” which is not the way I would describe federalism but does accurately describe the attitude behind the statute from Republicans and Democrats.

I hope the House decides not to take up this legislation.

 

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Patent Pending

Here’s a question that occurred to me when I was browsing the other day. What is the point of putting “patent pending” on an item for consumers? This gives notice that if a patent is granted then infringement liability may relate back to the use of the item in question, but that is irrelevant to the average consumer.  Is the point of “patent pending” to mislead some consumers into thinking this means “a patent will be granted?”  Does patent pending just sound better than not saying anything about that?  It seems like a fact that only investors would care about.

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Who Owns Soccer?

I’m pleased to announce that Mike Madison, a terrific IP scholar at the University of Pittsburgh Law School, will be giving a talk at my school on Tuesday, March 29th on “Laws of the Game:  Who Owns Soccer?”  The details are here for those who would like to attend.

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The Supreme Court and IP

I would like to dissent from a recent trend that I see in IP. Two recent certiorari petitions (still pending) are asking the Court to get involved in doctrines that they have left alone for decades–the right of publicity and design patents.  These petitions are supported by many scholars that I respect, but I submit that they are making a mistake in asking for this sort of intervention.

While there are significant First Amendment issues raised by the right of publicity, I see no indication that publicity law is working poorly and needs help for the Justices.  Moreover, I see no reason to think that the Justices will actually be helpful in an area of law that they know nothing about.  Design patent, I think, is the same story, though there the argument for Supreme Court action is even weaker given the absence of any constitutional concerns.

I’m not against asking the Supreme Court to decide IP cases.  Far from it.  With respect to utility patents, there was (and still is) a need to rein in the Federal Circuit’s errors and excesses.  In the two areas that I’m highlighted, I think the Court will just mess things up and should stick with “Do No Harm.”

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Better Bar Design Means Better Revenue and Health for Bartenders

With the resurgence of cocktail culture, one may not think about a bartender’s work area, but it turns out that area is not well-designed so much so that bartenders have health problems and they can make fewer drinks. So in the age of let’s design and fix that, a bartender has come up with an “ergonomic, behind-the-bar workstation—which he calls the ‘race track’.” The new design lets the bartender stay in one place, have everything within forearm reach, and gets rid of the well (across which a bartender must lean and thus hurt his or her knees). The creator is seeking a patent, and the expected cost right now is five figures (they are hand built). The Wired piece covers some history of the bar and how ice changed the way we drink and how today the craft cocktail trend means efficiency is at a premium. As Wired notes

A good bar with a smartly built bartender station, on the other hand, is a blue-ribbon-prize-winning cash cow. Your typical cocktail den, Simó says, will rake in between $6,000 and $8,000 in sales in a night. At a nightclub, you more than triple that. A single bartender can ring in $10,000 in sales, by himself. That’s all contingent on how fast he can sling drinks, and Lafranconi says the race track is optimized for that kind of speed. “We can increase the output by about 10 to 15 drinks per hour.”

Throw in the health issues–“Tending bar in 10-hour shifts, night after night, can lead to injuries like tennis elbow, tendonitis, and plantar fasciitis”–and the future bar will let you be closer to the bartender, get your drink faster, and keep him or her in good enough health to be there the next time you visit. Pretty cool.

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Beatles in the Ether or Streaming

By now many may know that The Beatles catalog (or most of it) is available for streaming on the major services. I happen to love The Beatles and easily recommend Cirque du Soleil’s Love in Las Vegas. But the streaming option presents some questions to which I have not seen answers. First, did the services offer anything extra or special to get the rights (I can’t recall the state of streaming license law as far as flat rate or baseline rate to stream if the rights are granted)? Second, will the rights holders (I can’t recall where those have ended up) track the money from streaming versus selling the tracks and albums? If they do what will they find? Work on P2P music sharing and its effect on music and a study on the effect of free options for film may shed light on the future for Beatles revenues. The film study offered:

Together our results suggest that creative artists can use product differentiation and market segmentation strategies to compete with freely available copies of their content. Specifically, the post-broadcast increase in DVD sales suggests that giving away content in one channel can stimulate sales in a paid channel if the free content is sufficiently differentiated from its paid counterpart. Likewise, our finding that the presence of pirated content does not cannibalize sales for the movies in our sample suggests that if free and paid products appeal to separate customer segments, the presence of free products need not harm paid sales.

If music works in a way similar to film, The Beatles rights holders may expand their pie, not reduce it.

Either way I am happy to enjoy the streaming options while they last.

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Holiday Cheer – Creations for Good

A sister notices that her sister’s monitor for her blood sugar level has a weak alarm and does not work well to wake someone up at night, when the alert is critical. Sister decides maybe she can do something, and she does. Who is this mystery girl? Our own Danielle Citron shared with me (and let me share more) that her daughter, JJ, has been designing a new monitor to help diabetics (which her sister has).

JJ applied to a program to help high schoolers with STEM projects and was paired with folks at Northrup Grumman where she spent a day a month developing her idea. Along the way, JJ had to figure out what alarm noise worked best to wake someone up, program a code to link the monitor and bracelet devices, and then wired them. As her school reports

This year, Citron will continue to test and refine the design, creating the bracelet with the help of a 3D printer. When she’s finished, the bracelet will change color to let the user know immediately if their blood sugar is getting too high or too low. The detailed information from the monitor will also be linked to a smartphone app.

3D printing! Color coding! And JJ seems poised to go into computer science.

Although I am friends with Dani and have met JJ, the real point for me is that a teenager saw a problem and felt she had the room to try and fix it. Then she worked on it. Her success is lovely, but the fact of the chance is downright excellent and puts me in a great holiday mood. Of course, with Danielle as her mom, JJ may have to look forward to law professors wondering about patents, privacy, and data ownership, but those are what a good friend of mine once called “high quality problems.” Well done, JJ.