Here [PDF] is a legal opinion on trademark law that is well worth reading. [E.S.S. Entertainment v. Rockstar Games, Inc.]

The opinion contains several gems such as:

"A reasonable consumer would not think a company that owns one strip club in East Los Angeles, which is not well known to the public at large, also produces a technologically sophisticated video game like [Grand Theft Auto] San Andreas."

...

"[F]ans can spend all nine innings of a baseball game at the hot dog stand; that hardly makes Dodger Stadium a butcher's shop."

While the court's opinion is, of course, correct, I am continually amazed that the legal system still allows IP attorneys to even make such frivolous claims without being sanctioned.

A rather disturbing development -

A man accused of posting nine previously unreleased songs by the rock band Guns N' Roses on a website where they could be accessed by the public was arrested at his home early today on suspicion of violating federal copyright laws, authorities said.

Kevin Cogill, 27, is accused of posting the songs, which were being prepared for commercial release, on the Internet blog Antiquiet in June, according to an arrest affidavit. The site received so much traffic after the songs were posted that it crashed, the affidavit states.

More info here.

The ephemeral line between civil and criminal penalties in copyright is yet another bothersome abuse of the intersection between business interests and state power. Why are some accused of copyright violations merely sued by businesses while others are arrested by the state? What truly distinguishes one case from the other, and how do authorities make such a determination? On the surface, it seems that the only difference is how much political clout a particular business has with authorities.

I am of the belief that IP violations should never be considered as a criminal offense unless there are other criminal activities associated with the use of the IP itself (i.e., selling 'pirated' goods or fake knock-offs of trademarked products to help fund terrorist groups, organized crime, etc.).

Following up on Stephen Spear's post on the District judge's ruling against the attempts by the U.S. Patent Office to reign in firms trying to apply for large numbers of patents at once -

The full court decision can be found here [PDF file]. [h/t: CourtHouseNews.com]

While the ruling contains a lot of legalese, the judge also manages to describe in great detail (and relatively simple language) the process involved in patent applications - and why the current system allows firms with large financial and legal resources to get away with murder in the patent realm by being able to outlast the patent office and wear it down. Definitely worth a read.

The end results of the ruling are indeed tragic. However, I have to admit that the judge may have a point when he says that the proposed changes need to come form Congress itself - not from the whims of unelected and unaccountable administrative officials (even though these particular whims are very much welcome). If you give too much lawmaking power to administrators, the day will come when the pendulum swings the other way after pro-monopolist workers come to dominate the Patent Office. But since Congress is frequently bought off by the patent lobby, that leaves the future landscape rather bleak. Hopefully the Supreme Court will continue its attempts at patent reform by enlarging the very incremental steps they have undertook thus far.

The L.A. Times turns a spotlight on the Church of Scientology's abuse of IP claims in order to try and silence its critics.

No corner of the Web, it appears, is safe for Scientology. Blogger and lawyer Scott Pilutik recently posted a story noting that Scientology was yanking down EBay auctions for used e-meters, the device the church uses for spiritual counseling. EBay allows brand owners -- Louis Vuitton or Rolex, say -- to remove items they believe infringe on their trademark or patent rights. Basically, fakes. But, Pilutik said, the used e-meters being taken down were genuine. Reselling them was no different than putting a for-sale sign on your old Chevy.

"What's actually going on here," he wrote, is that the church is "knowingly alleging intellectual property violations that clearly don't exist."

...

The current wave of anti-Scientology activity began in January, when a video of Tom Cruise extolling the religion's tech-based approach to enlightenment was leaked onto YouTube, where users holding it up to ridicule copied and recopied it; several sites posted it without hesitation.

It wasn't long before Nick Denton, who as publisher of the blog syndicate Gawker Media had put the video online first, received a legal threat from a law firm representing Scientology, alleging copyright infringement. But Denton refused to take the video down.

"It was an awesome news story," Denton wrote in an e-mail. "If we didn't race to post it up, some other site would have. That, rather than litigation by Scientology, was the fear going through my mind."

The church's whack-a-mole campaign with the Cruise video became a rallying cry for Anonymous, which saw efforts to remove the videos from YouTube as an unwanted incursion into the domain of digital culture, where information and media, copyrighted or no, are often exchanged freely.

...

Ironically, it is the church's aversion to negative publicity -- and the legal strategy it has long used to prevent it, that has aroused more online ire than any other issue.

The website ChillingEffects .com has posted dozens of cease-and-desist letters sent by Scientology's lawyers to various website and Internet service providers requesting that copyrighted material be removed.

But in the diffuse and often Byzantine world of the Web, some precision legal strikes are more likely to backfire than hit their target. Scientology's use of copyright law appears to be an increasingly losing battle on the Web, said Andrew Bridges, a San Francisco-based intellectual property attorney. "The big question is: Is the copyright serving the purpose of promoting science and the useful arts, or is the purpose essentially the stifling of criticism?"

Read the whole article.

The Federal Court of Appeal in charge of interpreting Patent Law has been an absolute disgrace. I would have thought that it should be obvious that only tangible technology could be eligible for a patent under the law. But the court has at times implied that even modes of thought and communication can somehow be patented if it leads to concrete results in the physical world. Maybe they are slowly staring to get the message of just how wrong they have been all along.

The U.S. Court of Appeals for the Federal Circuit redefined the margins of patent eligibility in State Street Bank & Trust Co. v. Signature Financial Group Inc. in 1998. The effect was to boost patent protection for business methods, such as financial models, contract provisions, insurance policy features, computer-related inventions and Internet startups.

There were unintended effects, too. The U.S. Patent and Trademark Office was deluged with new patent applications and had few examiners with the expertise to handle them. Four Supreme Court justices have bemoaned the precedent, calling it vague and contrary. And several financial-services companies, frequent targets of the business-method-patent holder, have run up millions and in some cases billions of dollars in royalties and damages.

After a decade of disagreement over the precedent's bearing on American innovation, the Federal Circuit decided Feb. 15 to revisit State Street through the lens of another case, In re Bilski, which lifts State Street's holding on business methods and attempts to carry it further.

In a rare move, the court scheduled an en banc hearing without prompting by the parties in the case. The hearing is set for May 8.

Read the whole thing here.

Behold the latest proof -

Patent lawyers started breathing again Wednesday, as the specter of new patent rules was chased away -- at least for a little while -- by a Virginia court.

U.S. District Judge James Cacheris granted pharmaceutical giant GlaxoSmithKline's motion for a preliminary injunction blocking the U.S. Patent and Trademark Office from implementing rules set to go into effect today.

The new rules would reduce the number of claims, which help define a patent, and the number of continuations, which are used to amend patent claims and contest those that are rejected. Claims would be limited to 25, and continuations to just three. The current rules imposed no limits.

"I won't be alone in being among the patent attorneys who are very pleased with the injunction that was granted today," said Neil Smith, a veteran IP lawyer at Sheppard, Mullin, Richter & Hampton in San Francisco. "Anyone who cares about the strength of patents and about innovation itself saw those rules as causing some real problems -- it's a good day for the patent system."

The patent office says the rule changes are meant to speed up the patent process and eliminate the enormous backlog of applications. But opponents say the changes could weaken patents by not allowing sufficient continuances to cover ever-evolving innovations. They also say the new rules would have unfairly been retroactive on pending applications.

Notice how patent attorneys engage in Orewllian Newspeak talking about the "strength of patents" and "innovation". Always have to read between the lines with them - much like politicians.

Read the whole article here.

In a frighteningly bizarre Orwellian case, a guy who criticized the fact that an organization was trying to trademark the word 'freecycle' got sued for trademark infringement because he used the word in his criticism. The organization even got a lower court to issue a preliminary injunction preventing the guy from 'disparaging' the trademark.

Fortunately, the 9th Circuit Appeals Court freecycled the case back to reality - ruling that not only was there no trademark infringement here, but also declaring that federal law doesn't recognize an action for trademark 'disparagement'.

PDF link to the case here.

Astounding...but not at all surprising.

Patent litigation probably couldn't get more high stakes than a Delaware lawsuit currently unfolding against Intel Corp. Transmeta Corp. has accused the Silicon Valley chip giant of infringing on 10 patents in its hugely successful Pentium products.

Yet rather than battle it out in court, Intel is trying to put the brakes on the proceedings. The company is making use of a relatively new government process, known as inter partes re-examination, that is becoming an increasingly popular way for accused infringers to get patents invalidated. It's far less costly than litigation, and even if the patent is upheld, a stall in court proceedings increases the likelihood of a settlement, patent attorneys say.

Since the inter partes procedure started in 1999, the yearly number of these requests has increased dramatically, and U.S. Patent and Trademark Office statistics show the process is likely to result in the invalidation of patents at issue. In 2006 there were 70 requests, and six months into this year, there have already been 90.

And of the inter partes re-exams that have been completed, the patent claims were invalidated 88 percent of the time, according to the PTO.

Read more about it here.

It is a well known secret that California-based burger chain In-N-Out has a 'secret' menu that is not displayed or advertised at any of their stores. It allows people to order items that are not found on any of their limited menus.

When you order a 3x3 burger, or "Animal Style" burger, In-N-Out service people will know what you are talking about.

However, I have a problem with a judge ruling that such terms are trademarks owned by In-N-Out. [PDF alert. Hat-tip Courthousenews.com]

Even if In-N-Out actually registered a trademark in such terms, a minimum requirement for trademark protection demands that the mark actually be used in commerce. If you deliberately hide a mark from the public, you should lose trademark protections. (And no, simply referring to the terms on a company website should not count. If you don't use the mark on the product or place of business, there is no mark to protect.)

Although I recognize the legitimacy of trademarks to protect against actual consumer confusion in the marketplace, I think the judge blew it on this one.

Via Courthousenews.com -

ALEXANDRIA, VA. (CN) – An inventor has sued the U.S. Patent and Trademark Office, challenging new regulations that will limit the number of continuations an inventor can file on an original patent. Plaintiff Triantafyllos Tafas has eight patents and 17 patents pending. He asks the Federal Court to enjoin Sections 1.75 and 1.78 of 72 Fed Reg. No. 161, promulgated on Aug. 21, to take effect Nov. 1, claiming they violate the Patent Act and the Constitution. The revised rules “limit the right of a patent applicant to continue prosecution of applications related to a single invention … substantially change the regulatory landscape under which inventors … have traditionally operated, and, once effective, will frustrate the purposes of the U.S. Patent laws by preventing Dr. Tafas and other similarly situated inventors from realizing the full economic potential of their work.”

Courthouse news has posted a copy of the actual complaint here. [PDF file link.

By the way, just how many patents does Adobe claim are contained in its Reader program? Try to count them as the PDF Reader program loads up.]