Archive for August, 2011

August 25, 2011

Software Patents: Leeches and Cupping for What Ails Modern Invention

Patent law is as broken as the rest of intellectual property, but since patent deals with inventions, rather than ideas or expressions as with most other branches of IP law, its problems are unique to it and outside my general area of interest. That being the intersection of social media and intellectual property rights enforcement.

As a result, I rarely post on patents. That won’t change, but there is a growing drumbeat of discontent in patent law, especially as it relates to software patents, where social media was and continues to be birthed and where the patent system is seen as a way to stymie the competition rather than promote innovation. There is also a sense that the patent reform in congress will do little or nothing to fix the real problems.

Did Google spend 12.5 billion dollars that could have been used to innovate on Motorola just for the litigation advantage its patents might give it? And will Microsoft be the big winner? There are other examples of Google practicing defensive patent buying. See  Google is Packing Heat (With Sights on Apple)

Or from the Guardian, “Patents are now a multibillion-dollar industry in which companies find it more attractive to make money suing each other for infringement than actually making things.”

Mike Masnicjk, writing in Techdirt recently suggested several fixes that should be, but are not being, considered by congress as it drafts patent reform. My favorite suggestion regards obviousness. As most of you are aware, one of the requirements of patentability is non-obviousness, but the standard is so low as to be laughable. How obvious does something have to be before it stops being non-obvious?

Masnick points out that independent invention should be a defense against patent infringement in much the same way that it is in copyright. And he goes further and claims that independent invention should be evidence of non-patentability. Which makes perfect sense to me, give “non-obvious” some teeth.

Recognize that independent invention is a sign of lack of patentability: This one is a bit more controversial, but the point of the patent system is supposedly only to reward patents on inventions that are non-obvious to those skilled in the art. If multiple people, skilled in the art, are coming up with the same thing independently at the same time, it seems like pretty strong evidence that, in fact, the ideas were obvious to those skilled in the art.

This seems so obvious to me that if it is, as Masnick says, controversial, that’s just more evidence that the system is broken. Read the whole thing, it’s not long and doesn’t require a lot of patent knowledge.

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August 22, 2011

Monster Cable, Portrait of a Trademark Bully

Sell something, anything, under a name that includes the word “Monster” and sooner or later you will likely receive a cease and desist letter from Monster Cable Inc., a company that has earned a reputation for coming after anyone who uses the word “monster” in anything but its literal sense (and sometimes even then, as Walt Disney found out while merchandising creatures from the movie Monsters Inc.).

Do a Google search for “’Monster Cable’ trademark bully” and you’ll find a member of the Hall of Shame, Corporations Division. They’ve issued scores of cease and desist letters and sued dozens of companies large and small, from The Boston Red Sox to monstervintage.com, an online used clothier. For this they take a lot of grief.

Their defense? “We have an obligation to protect our trademark; otherwise we’d lose it,” explains Monster Cable founder Noel Lee.

Really? Maybe for other sellers of home entertainment accessories, Monster Cable’s product area, but, say, a mini-golf course? A trademark does not typically extend further than the goods used under the name. And Monster Cable does not sell used clothes or operate golf courses.

Monster has a defense for this. They consider their mark “famous,” a term of art in Trademark law that gives extra protection to marks that are so intertwined with the company that no other company can use them. Take Coke or Pepsi, for instance. Nobody but the Coca-Cola Company or PepsiCo can use those names no matter the product being sold.

But is the Monster Cable mark famous? According to J. Thomas McCarthy, author of “McCarthy on Trademarks and Unfair Competition,” the very treatise Monster Cable cites for its claim, such a designation cannot be claimed by a company, it must be granted by a court and no court has so granted.

Nevertheless, Monster Cable clearly wants the famous designation and vigilance in protection is key to maintenance of Trademark rights. Can they be faulted for concluding that protecting the mark as though it were famous will make such a judicial grant more likely?

As an added wrinkle to Monster Cable’s spate of seemingly frivolous suits, they often win (or at least gain in settlement). Monster.com added a link to Monster Cable on its website (check the bottom, it’s small but it’s there). The Boston Red Sox changed their marketing for the seats above The Green Monster (so called since 1947).

Their most notable and celebrated losses were not to big players like the Discovery Channel’s Monster Garage, but to little ones like Monster Mini Golf, of all places.

So how did the little guy win? “We blogged nonstop, around the clock, for weeks, and enlisted much of our staff to do the same,” says Christina Vitagliano who along with her husband Patrick founded Monster Mini Golf. Monster Cable received at least 200 angry consumer complaints. After speaking with the Vitaglianos, Mr. Lee decided to drop the lawsuit and agreed to pay up to $200,000 of their legal expenses. “We have made the decision,” says Mr. Lee, “that public opinion and that of our valued customers is more important than the letter of the law that requires us to prevent the dilution of our mark [or] risk losing it.”

Monster Cable probably deserves the complaints it gets, but this can’t be mere mean spiritedness. It’s too expensive, the victories too meaningless, the damage to their reputation real and growing.

They want the prestige of having a famous mark and both the courts and the law tell them this will help them get it. They’re not crazy and they’re not wrong, even though they should be.

August 8, 2011

Like Is the New Link: Attracting Clients in a Social Media World

I wrote the following for the HuffingtonPost blog of the New York Public Library. It is a review of a presentation I attended about using social media as a marketing tool. It is my view, which I will hit on repeatedly here, that companies and firms need to alter their IP enforcement practices in the new world of social media. An important first step is understanding what social media is all about.

Like Is the New Link: Attracting Clients in a Social Media World

By Timothy Maguire

Almost half of the world’s Internet users are on Facebook. But how many are “likable?”

For anyone with something to sell, this is a particularly tricky question. Dave Kerpen found a great example of how to be charming and oh-so-subtly self-promoting while checking in to a Las Vegas hotel recently.

After waiting in line 45 minutes, Kerpen, the founder and CEO of the social media marketing site Likeable Media, tweeted his annoyance. Minutes later he got a response. From a different Vegas hotel. “Sorry to hear about your trouble,” the tweet said. “We hope you enjoy the rest of your stay in Las Vegas.”

That subtle, restrained little tweet impressed Kerpen enormously. In a free lecture at The New York Public Library’s Science, Industry and Business Library on Monday, he held it up as an example of how companies — anyone, really — should be marketing and monitoring themselves on social media.

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August 3, 2011

A Kinder Gentler Rights Enforcement Approach. Why? Part I

IP can be among a company’s most valuable assets. Recognizing this fact, state and federal statutes give rights holders powerful weapons to punish infringement. And in doing so, they encourage aggressive prosecution. Trademark law goes even further; failure to enforce Trademark rights can result in loss of those rights.

This attitude is understandable up to a point. But there is a downside that the law does not take into account—public disapproval of companies perceived as “sue happy” can damage goodwill.

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