Posts By Herminia Fleming

The Copyright Infringement Case of Bowman v. Monsanto Co.

Legality regarding copyright infringement can get a little complicated if you’re not familiar with the regulations, but then again most of us don’t need to concern ourselves with those details. The only people who do are those who rely on copyright or trademarking to protect their own products or brands from people who may purposely or accidentally use them. The case of Bowman v. Monsanto was complex, but not too complex that the ruling didn’t make sense.

In the case, Monsanto alleged that Indiana farmer Vernon Hugh Bowman purchased soybean crop seeds which he planted and then replanted after the first harvest. According to Monsanto, the product was sold not as a seed but as a commodity. Bowman had no license to plant the product as a seed, which was under copyright. The Supreme Court ruled in favor of Monsanto, agreeing that Bowman had committed copyright infringement.

The ruling favored the owner of a patented seed by explaining that someone–such as a farmer–can use patented seeds without permission. This might seem obvious, but to farmers it isn’t. Say for example some patented seeds from a neighboring farm spread to your property and start growing. Are you liable for copyright infringement if you then use those seeds to farm on your own land? The ruling says that you are.

Another more complicated situation can develop as well. You may have the patent owner’s permission to use or grow a specific seed, but if that seed or the resulting crop is then modified or engineered to create a new strain for harvest, are you still subject to copyright infringement laws for growing the newer crop? The ruling once again says that you are.

This case was noteworthy for two other reasons: first, the ruling had the potential to force changes in regulatory policy regarding copyright and trademark infringement laws, and to the way farmers conducted business. Second, Justice Clarence Thomas was once a lawyer for Monsanto, raising concerns that his might be a biased opinion. It turned out not to make a difference, since Monsanto won in a unanimous ruling.

At the end of the day, the ruling means this: you can’t take someone else’s copyrighted product, use it to make a somewhat newer product, and claim the newer version as your own. Licensing matters regardless of where you conduct business, whether it be an Indiana or Atlanta. Credit must be due to the original maker, and you’ll be subject to copyright infringement laws if you steal this credit–because the Supreme Court says so.

Here is a video going into some more detail about the case:

Google’s Latest Patents

Google Patents Car Safety Systems                

GoogleIf you want to know what direction a company is going, one of the items you can look at is what patents they have recently filed for or received. We all know Google as a tech-giant that revolutionized the internet. Since their conception, the company has been expanding at a rapid pace. They have spread their metaphoric tentacles into spaces you wouldn’t have imagined. One of their latest ideas to come to life was the Google home system.  In the past, they have also invested in research and development in autonomous vehicles.

Google’s latest investments have once again been in the auto industry. As we previously stated, we have heard of Google doing research on autonomous cars. Since then, Google has filed for a couple of different patents. Both patents are in regards to user safety in the auto industry.

The first patent Google filed for was in 2016. Google developed a sticky concentration that is designed to be applied to the hood of a vehicle. The idea behind the material is that it will catch pedestrians if they are struck by a vehicle. This technology is necessary because sometimes things happen too quickly for a human, or even a computer, to process.

A year later, Google filed for a second patent. The second patent is for a “crumbling” system that will be installed in vehicles. The rationale behind this patent is to reduce the rate of impact of the collision. In turn, this will reduce the force of impact for passengers of the vehicle. How will the car know to start crumbling? Google’s autonomous cars use top of the line data sensors to learn their surroundings. The sensors on the vehicle will determine when a crash is inevitable, the mass of the object or vehicle you are going to collide with, and initiate the “crumbling” system. This technology can be extremely useful in head on accidents.

Why doesn’t Google just stick to what they know? Google, as any other tech company, wants to keep pushing technology forward. They have the budget to afford the best research and development, so why not try to better the world?

Steps to Filing a Patent Application

Steps to Filing a Patent Application

After you make your invention come to life, it is important to protect your idea with a patent. If you do not secure a patent for your the product you invented, other companies can copy with little to no penalty at all. While you can hire a lawyer to take his process off your hands, you do not actually need one to file for a patent. The United States Patent Trademark Office has a specific set of rules, you can follow them and file for a patent on you own. Once you have brought your idea to life, follow the steps below to ensure that your idea is not stolen by a larger competitor.

1.Keep a careful record of your invention

As you are going through the process of bringing your idea to life, it is of utmost importance that you take careful note of the steps you take. You must describe and diagram every aspect of your invention including any modifications and how you came up with the idea of it.

2.Make sure your invention qualifies for patent protection

In order to avoid handing out patents to the masses for every idea that is thought up, you must be able to show that your invention works and is a new idea. Your invention must be unique to previous inventions and it cannot be for sale or known about before you apply for a patent.

3.Asses the commercial potential of your invention

Even if you decide not to hire a patent lawyer, it costs up to $1,500 in in fees to file with the USPTO. It is important to make sure that your invention is one of a kind and that it has a market.

4.Do a thorough patent search

One of the particulars the USPTO will check is if the patent is new or not. You know the most about your invention, therefore, you are the best person to start this research. You will want to search US and foreign patents, as well as scientific and technical journals.

You can use the internet or visit the Patent and Trademark Depository Library to find resources that will assist you in finding inventions similar to yours. On the chance that you find an invention similar to yours, you should make a point in the patent application o indicate how your invention is unique and better than the others.

5.Prepare and file an application with the USPTO

When you have gathered your materials and documents and are ready to file with the UTSPO, there a couple of decisions you will have to make. There are two types of patents, a regular patent application (RPA) or a provisional patent application (PPA).

Provisional Patent Application (PPA): Filing for a PPA allows you to claim patent pending status for the invention and involves less work and a lower cost than a RPA. What will you need to file for a provisional patent application?

  • Patent fee ($65 for micro-entities, $130 small entities, and $260 for large companies)
  • Detailed description of your invention
  • Steps of how to make and use it
  • Informal Drawing of your invention

The catch here is that you MUST file for an RPA within a year of filing the PPA. If you do not, you can no longer claim the PPA filing date.

Regular Patent Application (RPA): A regular patent application is the full deal. When you file for a RPA, the USPTO will begin the examination process.

Celebrity Trademark Stories You Won’t Even Believe

It’s not at all unusual for successful businesses to try to trademark a symbol, catchphrase, or anything else in an attempt to protect their brands from would-be thieves. When celebrities do it, disaster results. The following are some of the most outrageous celebrity trademark stories you’ll hear about; almost enough to make you think that we need to tighten some of the regulations that govern trademark law. Take a breath, because you’re about to lose some brain cells.

The New England Patriots have weathered their fair share of controversy in years past, and you can add ridiculous trademark attempts to the list. The team tried to trademark “Perfect Season” and “19-0” even though they lost. It isn’t the first time someone tried to do this. The Kraft Group tried to trademark “Road to Perfection” and the aforementioned phrases in 2008 after the Patriots were set for that year’s Super Bowl. They actually got “Road to Perfection” but since they never actually won either Super Bowl, they still haven’t sealed the deal on the other two phrases. Sadly, this type of Super Bowl trademarking isn’t even unusual.

Snooki once tried–and failed–to trademark her nickname. She did this in an attempt to keep the branding for her book rights and TV personality, but unfortunately for her the trademark had already been granted in 2004 to a fictional cat by the same name. All right, not exactly the same name. The cat’s name was Snooky. Close enough, right? The Trademark Office thought so, stating that there could be confusion. Tough luck.

As if you haven’t already heard enough about Donald Trump, the New York native tried and failed to trademark the Celebrity Apprentice catchphrase “You’re Fired!” way back in 2004. Apparently the Trademark Office believed that there could be confusion with another similar trademark from a game called “You’re Hired!” A pottery shop in Chicago also goes by the name “You’re Fired”, and the judge didn’t want to take away their business for the likes of Donald Trump. A good decision.

Sarah Palin is another politician known for both her personality and decision-making skills. She tried to trademark her name, but forgot to sign the registration forms. She also tried to trademark her daughter Bristol’s name. Both were for the motivational speaking. Although the forms were denied because they lacked signatures, the judge who made the decision also noted that the Palins would have to prove that their names were used for commerce. It’s rather unfortunate that someone can trademark their own name, but that’s the world we live in.

These are only a few of the celebrity trademark stories out there, but at this point you probably won’t be surprised that there are many, many more!

Taylor Swift is notorious for trademarking things so other artists can’t take advantage of her work. Watch this video to learn more:

Rowling v. Vander Ark

There are two problems with originality when it comes to creative work. One, it is always met at first with the utmost scrutiny. And two, if it is successful, it often inspires less originality in its wake. Developing a purely original thought when it comes to writing a book these days is such a rare thing. Our thoughts and inspirations are obvious sources of other material, and so treading the line between taking inspiration from something and outright copying its concepts to paper can sometimes be quite difficult. In the cases where litigation follows, it may be just as difficult to come to a fair ruling that satisfies all parties due simply to the abstract angle that creativity can take.

Sometimes, however, it is much easier to see when someone may be trying to ride the coattails of success.

“The seven Potter books…have been published in 64 languages, sold more than 400 million copies and produced a film franchise that has pulled in $4.5 billion at the worldwide box office.” A quote pulled from an article on the German website, welt.de. Suffice it to say, J.K. Rowling has done very well for herself since the publication of “Harry Potter and the Sorcerer’s Stone,” once long ago regarded as a children’s storybook, now part of the foundation of a franchise for a fan base around the globe.

In this day and age, Rowling is part of the exclusive “one in a million” group of writers whose work is not only critically acclaimed, but known around the world and able to provide a steady and successful career for her as an author, very likely setting her for the rest of her life. And so it stands to reason that she may want to protect the investment of her time into such work.

In the article mentioned above, Rowling commented, “Many books have been published which offer original insights into the world of Harry Potter. The Lexicon just is not one of them.” A reference to the work of RDR Books and Steven Vander Ark, an encyclopedia chock full of Potter-verse information that covers details from the 7-book, 8-movie anthology – including characters, creatures, magical spells and potions. It is a work that many might see as an obvious rip-off to make a quick buck off the Potter fan base, and one that Rowling herself testified to being, “nothing more than a rearrangement of her material.”

Vander Ark claimed that he was using the information to build a reference guide under fair use, which would allow him to replicate portions of the written work without requiring permission from the copyrighted work’s creator. However, more often than not, to determine fair use, a body of work written in this way would need to be successfully categorized into one of two fields: commentary and critique, or parody. While we don’t intend to explore critically the legal ramifications, it may be safe to say that Vander Ark – who is portrayed as a dedicated fan of Rowling’s work – was very likely not creating a parody with his Lexicon. Which leaves commentary and critique – which requires original commentary. Which is something that both Rowling and U.S. District Judge Robert Patterson apparently thought was lacking.

This is not meant to discourage creativity. Yes, it is difficult to come up with an original, marketable idea to put to paper these days. But, again, there is a difference between taking inspiration from someone’s work and just taking their work. And while Vander Ark’s intentions may have been pure (though still marketable), it still seems more than obvious he was stepping on Rowling’s toes by attempting publication.

What Happens to A Social Media Profile When Someone Dies?

More people use social media every day than ever before. People continue to sign up for sites like Facebook, Pinterest, Google + and more. But, the reality is the question of what happens when a person dies? Does the social media account go away?

The answer is that it depends on the platform. Pinterest specifies in its rules and terms that it does not do anything. Your account could remain up indefinitely. If you are a Facebook user, Facebook will either change it to a memorial page, leave it be or delete it. They need to hear from loved ones to find out you or a loved one has died.

There are no laws that pertain to this sort of thing in the United States. There probably should be because of how susceptible online profiles can be to trolls or people who are mean-spirited and just want to put comments on a page that is not actively monitored. That does not exactly help the surviving family members but the fact that this can happen should be a cause for deciding ahead of time what your social media wishes are.

A simple way to handle this is to assemble a list of everyone’s usernames and passwords. The thought of collecting information like this is not easy to deal with, but remember that it will go a long way in the event of someone’s passing. You can avoid dealing with unpleasant comments about a loved one or seeing their page get bombarded with endless amounts of spam.

If you do choose to leave a page up as a memorial, Facebook allows this as long as they are in receipt of an obituary from an official publication. They will review the information before memorializing the account.

Allergan Finds Its Way Around Patent Procedures

For five years, the Patent Trial and Appeal Board (or PTAB) has been in charge of determining whether a patent is, well, patentable. The problem is that it’s really easy to launch a challenge against a patent either already in place, or in the process of being implemented. Critics of the board want big changes to the processes used to determine whether a drug or other product is suitable for patent, but not everyone is willing to wait for those changes. Allergan Plc is willing to pay a hefty price rather than see its drug opened up to an appeal process that might not go its way.

That’s why the drugmaker opted instead to transfer its patents to the Saint Regis Mohawk Tribe in Upstate New York. The tribe stands to make $15 million annually in royalties just for hanging onto the patent for Allergan, which made $1.49 billion in sales in 2016. Because Native American tribes aren’t bound by the same laws as anyone else who lives in any of the fifty states within the U.S., it can hold onto the patent without falling under the watchful eyes of the PTAB, thereby guaranteeing that the drug can continue to be sold into the foreseeable future.

When your company makes billions, it pays to be sneaky. The PTAB has reversed so many patents that it has been nicknamed a “death squad.”

Then again, not everyone thinks the board is bad news. Google and Apple are routine users of the board, using it to defend against potentially frivolous lawsuits that could damage their reputation and capacity to do business for the greater good, while also attacking patents they don’t like.

Because the PTAB is so controversial and has overturned so many patents, the Supreme Court is finally getting involved. As of June 2017, it decided to hear arguments as to whether or not the board’s recommendations and reviews are indeed legal. The potential that the court will rule in favor of the PTAB is more likely than not, but critics of the board are happy that the issue is finally getting the attention it deserves.

Opposition to the PTAB criticizes the board’s rulings because it regulates the kind of evidence that can be offered during appeals processes, and then often fails to explain the resulting decisions. That’s why Allergan and other companies are trying to bypass the board entirely rather than work with it. Others contend that the PTAB is overburdened. When originally conceived, there was an expectation of perhaps an annual pool of only a hundred or so petitions, while in reality there were thousands.

The tech companies that fought for the board’s creation aren’t backing down from the fight. After the board was created, the number of lawsuits filed against Silicon Valley tech startups and bigger companies like Apple or Google started to fall. On the other side of things, they’ve been able to challenge patents that are similar to their own.

Whether or not changes will be made might depend on whoever finds their way into the post–Barack Obama’s appointee has since left–and the decision of the Supreme Court.

What Is Public Domain and What Does It Mean?

The term public domain is heard on a regular basis, but what does that even mean? It is a legal term that essentially applies to works like books, audio recordings, and films. It means that there no copyright.

Some people confuse public domain to mean that any work that is no longer under a copyright is free and does not cost anything. Public domain has nothing to do with cost. It has to do with ownership of intellectual property.

When it comes to creative works or any work that a person crafted on their own, it is their ideas or intellectual property that must be protected. This is so that no one else can claim that they wrote a song like “Yesterday” by the Beatles and pass it off as something they created. That just would not be fair to the people who really wrote it using their own ideas.

Laws developed over time to protect this type of property and intellectual property law is the branch of law that covers this area. When a person creates a work they usually either have to copyright it or they should. A person does not have to be a famous artist or singer to copyright something. It is a form of legal protection to keep the work from getting copied as described above.

Copyrights do expire. For books, the copyright stays in effect until the author dies and 70 more years pass. Once this time is up, that author’s work enters the not-so-mysterious world of public domain. Some works fall out of copyright if the creator does not renew a copyright.

There are some occasions where the creator of a particular work decide to let his or her copyright go. They want it to fall into public domain as a gift to those who wish to enjoy their work. When a work is in public domain, it means that you can copy portions of it in print, for example, without having to obtain copyright permission.

You can, for instance, reprint a book online in its entirety as long as it has become public domain. This does not mean you can go around claiming you wrote it. But, then again, most people probably would get suspicious if you told them you penned “Treasure Island.” Either way, works that are in public domain have expired copyrights which can make them easier to obtain and enjoy.

Here are a few examples:

The Picture of Dorian Gray by Oscar Wilde
Jane Eyre by Charlotte Brontë
Pride and Prejudice by Jane Austen
Frankenstein by Mary Shelley
The Adventures of Huckleberry Finn by Mark Twain
Wuthering Heights by Emily Brontë
Dracula by Bram Stoker
The Wonderful Wizard of Oz by L. Frank Baum

When A Copyright Holder Dies: What Happens To The Copyright?

There are many different things that might be protected by a copyright, and the person who files it is the legal owner of the material. However, many people wonder what happens to the copyright once the person has passed away.

The answer varies a little based on a few factors. But, you should know that it absolutely does not become public domain! Generally speaking in the US today the copyright is still in effect for 70 years after the author passes away.

However, this has not always been the case. Over time the laws regarding materials that have been copyrighted have begun to recognize it as a tangible asset to the extent that is possible. While these things were once lumped in with service-based contracts, that is no longer the case.

Just like other pieces of property, copyrights can be given to beneficiaries. The law allows people to reassign and redistribute copyrights as a part of estate planning. However, copyright holders don’t have to retain possession of the copyright.

They can be legally transferred, usually via a licensing agreement, giving another party ownership of the material. This implies only certain rights being given over. On the other hand, an assignment will transfer unconditional rights to the new party. Interestingly enough, there are some instances where several decades after the creation that the transfer can be terminated by the author or their heirs.

These rules regarding copyright holders regard authors and similar artists rather than corporations who are bound by a completely different set of legal protocol. However, if you are interested in understanding the law for yourself or are studying up for a friend, this information should give you a good start.

Keep in mind that materials created prior to the early 1970’s might not have the same protection that newer works do. Before making any decision regarding copyrighted materials, find out when it was written and any other pertinent information regarding it, including publishers and dates.

The law has evolved to help protect the creative properties of authors and their works. Doing so not only allows them greater control over how the works might be used over time but also ensures that any royalties from the works go to the person or people that they want to receive it. Continue learning more about this fascinating aspect of the law and the world of publishing!

Swastika as a Trademark

As is often the case regarding any sort of particular legal practice, the specifics behind intellectual property law and trademark law come with a bunch of snags that several people outside of the practice don’t necessarily consider. For example, there once was a man by the name of Steve Maynard who attempted to register the Swastika and the N-word as trademarks for a business group, Snowflake Enterprises, LLC. Recent changes to U.S. Trademark Act had found unconstitutional the provision that banned certain images or concepts to be trademarked based solely on whether or not they were considered “disparaging.” Maynard, a local of Alexandria, Virginia and one who claims he is “not at all” a racist by any stretch, stated he wanted to trademark the Swastika and the N-word – strikingly enough – to combat their use and marketability by white supremacists. He believed, by trademarking these specific symbols, he could curb the market on Swastika flags by artificially inflating the prices on them to the point that no one would want to buy one, or by reframing the use of the N-word in images that inspired conversation and debate rather than hateful rhetoric. And while many might consider this a noble act to counter certain social beliefs in America, Maynard – a one-time patent examiner – failed to account for a couple of major flaws in his plan.

For one, even despite apparently having the best of intentions, Maynard would have had to register the trademark of the Swastika under a slew of different categories for product use in order to secure the Swastika solely as the trademark of his company. This includes products as teeshirts, coffee mugs, flags, and whatever other sorts of paraphernalia one can consider slapping a prominent socially recognizable symbol upon. That is not to say that he couldn’t accomplish something like that for a variety of other potential trademarks. But, it certainly does provide a bit of a kink in his plan to market (or rather, take off the market) the Swastika.

The bigger and more hampering problem is actually the social perception the Swastika represents. While Maynard’s intent was to utilize it on the market in order to destabilize its availability, the Swastika as it is recognized within the public eye is hardly ever used as an actual marketing device. Rather, because of what the Swastika represents politically and socially, to use the symbol outside of Maynard’s attempt to trademark it for his own business would have proven futile. Because of its proven standing as a political and social symbol instead of being a symbol for commercial use (compared to, say, Apple’s “bitten apple” logo or Google’s rainbowesque G), to use it outside of how Maynard intended to market it would not have been considered infringing upon the commercial intent of  Snowflake Enterprises, LLC. Generally speaking, infringement of this sort is only committed when there is a substantial confusion caused in terms of who is marketing the product. Because the rainbow G associates so strongly with Google as a marketing device, for someone outside of Google to use it in a public, commercial display would cause confusion as to who was actually marketing the product and thus making a profit off of its use. However, because the Swastika has such strong social ties outside of Maynard’s potential to use it as a marketing device, many people don’t interpret it as a commercial logo and so do not associate it strongly with any given company as opposed to a group of socially like-minded individuals who are not necessarily out to profit financially by its use; rather, they use it as a symbol of their group’s ideals, and so – as a political device – it isn’t effectively marketed for commercial use by one business entity or affected very much at all by trademark laws.