The University of Alabama has sued a local artist for making a nice business from painting pictures of the university football team from photographs and selling them as paintings, photos thereof, and as logos on coffee mugs and other things. The university claims he violated the university's trademark rights, particularly its “famous crimson and white color scheme.” (link to article here)

The Times article (front page, yet!) makes clear how cloudy the law is here. Some courts have “tried to balance the rights of the owners of intellectual property against that of free expression. The cases, which involve a variety of legal theories, generally turn on whether consumers are apt to be confused about who produced the works in question and on whether artists managed to add something meaningful to the bare facts.”

Read the rest. Here we go again.

Charles Lane writes in the Washington Post on who makes patent law (Washington Post link here). He gives pride of place to the Solicitor General, representing the Patent and Trademark Office, who is invited by the Supreme Court, feeling its own lack of expertise. The competition is the specialty court for patent and trademark law established by Congress in 1982, the U.S. Court of Appeals for the Federal Circuit. In the 10 Supreme Court patent cases in which the solicitor general has participated since 1995, he always won.

Lane provides a current example, KSR International v. Teleflex, where the issue is the proper meaning of "obvious" in patent law, e.g., an extension on a vehicle's accerator to accomodate short people. Read the article for the details. Lane opines that the Solicitor General leans toward limiting the meaning of new and non-obvious.

Not exactly earth shaking.

The New York Times has an editorial today severely criticizing the American patent system (link to NY Time article). It is short, so here is the whole thing.

Pay to Obey

The broken American patent system has a knack for sanctioning the ridiculous. In the latest example, businesses are receiving patents for devising ways to obey the law the tax code, to be more specific. What's next, a patented murder defense?

As Floyd Norris reported recently in The Times, the broad category known as business-method patents (like patenting the idea of pizza delivery rather than the pizza itself) has expanded once again. Now it includes the legal ways that accountants and lawyers help their clients pay less tax.

Once the Patent and Trademark Office has granted one of these patents, everyone who uses the same legal shelter even if they draw the conclusion based on their own interpretation of the tax code will be subject to lawsuits and even injunctions against using the method at all.

Defenders of these tax-strategy patents argue that they won't affect the average person's struggle with the 1040 form each April. The easy stuff should be rejected under the usual standard that requires patents to be novel and not obvious. Tax-strategy patents, they argue, are more geared toward the complicated tax returns of rich people.

While we don't normally rush to make it easier for the rich to pay less tax, the precedent is a bad one. People should be treated the same under the law, and shouldn't have to pay a licensing fee for the privilege. Congress needs to make spurious patents easier to challenge across the board, and should consider clarifying what may be patented. Recent technological advances raise questions about how patents apply to genes and life forms, or what standard should cover old business models on the Internet.

Patents are supposed to encourage innovation, rewarding the individual for the greater good of society. But excessive or overly broad patents can slow business activity to the pace of cold molasses. And we sure don't need something else to worry about on tax day."

The Washington Post reports that Oprah Winfrey's lawyers are threatening to sue retired school teacher Patrick Crowe for copyright and trademark infringements because he uses her picture in his website running her for president (link here).

At one level, this is silly. But it does raise a serious question. Does she own the copyright on her image? I don't believe I own mine or you, yours. She is a public figure. Paparazzi take and sell photos of celebrities all the time. The lawyers may rather believe they can scare Crowe into taking down the picture, using the threat of big legal costs.