Tuesday, March 18, 2014

Software Patents Headed to Supreme Court

If you've read my patent primer, you know that patents protect inventions, but not abstract ideas.  One wrinkle to this notion is the software patent.  Many in the industry believe that software code should not receive patent protection.  There is also the little matter about a design patent which can translate into trade dress thereby receiving legal protection for longer than the monopoly afforded patents--but, I digress.

Those who say "down with software patents" may see their demise in the form of a Supreme Court opinion in Alice Corp. v. CLS Bank.  Apparently, the founder of Alice obtained a patent for a software program which calculates the obligations of parties entereing into a currency exchange transaction.  However, the Federal Circuit in a circuitous and fractured opinion invalidated the patent.  Because of the Federal Circuit's muddled opinion, it appears the Supreme Court will now need to take up this case to provide clarification about the viability of software patents.  In one of the many opinions of the Federal Circuit, Judge Moore provided an inkling at what was at stake:
And let's be clear: If all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business-method, financial-system, and software patents as well as many computer implemented and telecommunications patents.
In other words, money is at stake.  Patents (or any other IP) generally equates to money.  They are property after all.  For example, Twitter just paid $ 36 million to avoid a lawsuit and to purchase 900 patents from IBM.  Undoubtedly, most, if not all, of these patents are software patents.  That is a lot of money for a portfolio of patents which the Supreme Court invalidates in a few months.  With so much at stake, it will be interesting to see what the Supreme Court has to say in this case. 

Tuesday, March 11, 2014

More Copyright Act Bashing

A recent case involving the estate of Arthur Conan Doyle and the Sherlock Holmes character was mercifully rejected by Chicago Federal Judge.  However, the case is further proof that the Copyright Act is misused, abused, and outdated.  In the case, the estate of author Arthur Conan Doyle sought to protect the Sherlock Holmes character from being part of a TV Series "Sherlock."  Now, I know, you are wondering how Sherlock Holmes can still be under the protection of the Copyright laws when he first appeared in works published in 1887 and his creator passed away over 83 years ago.  One would think that Sherlock Holmes was clearly in the public domain by now, right? Well, the Doyle estate disagreed. 

If you read earlier posts  of this blog, you would know that copyright protection generally lasts for the life of the author, plus 70 years.  Let's see, doing the math, 83 years is more than 70 years, and therefore, the characters created by Arthur Conan Doyle are in the public domain.  However, the Doyle estate argued that protection remained until the rights expire on the last few stories in which the characters appeared.  According to the Doyle estate, this meant that Sherlock Holmes was copyrighted until sometime in 2022 or 2023.  You have to give it to the Doyle estate, they make a creative argument not based in anything in the Copyright Act.  I digress.

A little history:  the 1909 Copyright Act provided protection for 28 years with a renewal period for another 28 years; the 1976 Copyright Act lengthened the term of protection to life of the author, plus 70 years.  Given that commercial exploitation of copyrighted works is much shorter than 70 years after the author expires.  Indeed, as we move more and more towards consumers with shorter and shorter attention spans (thanks to TiVo, Facebook, Twitter, etc.), it seems as if the commercialization of copyrighted works should also get shorter.  Information travels so fast and becomes old news so fast that it makes sense to have Copyright laws which recognize this change. 

Tuesday, March 4, 2014

Blogging and Defamation

Last summer, I successfully obtained a summary judgment against a defamation claim involving a blog post.  With the proliferation of blogs, Facebook, and Twitter postings, defamation lawsuits are undoubtedly going to rise.  In my case, the Court agreed with me that the blog post was not actionable defamation because the comments were opinions protected by the First Amendment.

Recently, Courtney Love obtained a jury verdict rejecting a defamation claim involving a tweet by Ms. Love which stated that one of her attorneys had been "bought off."  Needless to say, the attorney took issue with the posting and sued Ms. Love for defamation.  Ultimately, the jury found that while the statement was defamatory (because it was false), Love was not liable for the defamation because she did not know the statement was false at the time she tweeted.  In other words, the statement was an opinion which is not actionable. 

Defamation requires a publication that is false, defamatory, unprivileged, and has a
tendency to injure or cause special damage. Pure opinions – “those that do not imply facts capable of being proved true or false” – are protected by the First Amendment. Assertions of fact and statements that “may imply a false assertion of fact, however, are not protected.”  In my case last summer, the Court examined the context of the blog entries, including examined the purpose of a blog and how readers would understand the statements made.  The Court found that in the context of a blog, readers are smart enough to understand that the statements made on a blog are more likely to be one of opinion rather one of fact.  In particular, the Court wrote: readers of the blog entry "would realize that [Defendant] wrote it from its own perspective to paint itself in a better light, and would not understand it to be 'statements of fact rather than the predictable opinion . . . of one side about the other's motives.'"

Now, before you begin tweeting, posting, or blogging all kinds of nasty things about a competitor, be mindful that the line between opinion and a statement of fact (defamation) is very thin.  Generally, when making a statement, it is best to provide the facts upon which you base your opinion in order to allow a reader to accept or reject your opinion by reviewing your facts.