A lot is going on in the ever-changing field of intellectual property and this week was no exception. There was a Battle of the Bands in London this week, organized by the Chartered Institute of Patent Attorneys and Taylor Swift is back in IP news again due to her restrictive hold on her photographic image and its use in news and web distribution.
Battle of the
London was the scene for IP rockers this week, in a Battle
of the Bands event organised by the Chartered Institute of
Patent Attorneys (CIPA).
The battle included some inspired band names: squaring off
were IP Freely and the Incontinents (pictured top), The Black
IPs (pictured bottom), The Non-Practicing Entities and The
IP Freely and the Incontinents won the contest this year.
The winners were from Collyer Bristow.
The judges were: Simone Ferrara, CIPA council member and
patent attorney at Vodafone; David Musker, CIPA member and
partner at Jenkins; Victoria Oladele, project manager at
charity Generating Genius; and Gideon Woldeslassie, project
Manager at charity Generating Genius.
Previous winners are The Groundless Frets (Boult Wade
Tennant) in 2013 and The Black IPs (Kilburn & Strode) in
2012. There was no event in 2014.
SCOTUS takes a
The Supreme Court was eagerly watched by IP practitioners
this week to see if it would take up any IP petitions for
certiorari. Instead, it denied three: Google v Oracle, Google v
Vederi, and Ultramercial v WildTangent.
Observers speculated that the Supreme Court may be taking a
break after being extremely active on IP cases by historical
standards. “Apart from leaving-stand the particular holdings,
these outcomes may collectively signal a time of out-breath for
Supreme Court patent law jurisprudence,” noted Professor Dennis
on the Patently-O blog. “By my count, there are no patent
decisions pending before the Court (with certiorari granted)
and none of the petitions on file carry a substantial chance of
Patent holders may cheers this news if the
criticism at the recent BIO conference about the damage
that the Supreme Court has given to Section 101 to is anything
to go by. In the Ultramercial case the Federal Circuit had held
that a patented method of distributing media content with
advertising was a patent ineligible abstract idea.
The refusal to hear the Google v Oracle case drew criticism
from some quarters, however. The Federal Circuit last year held
that the Java API naming scheme was copyrightable and not an
ineligible “system or method of operation”.
Vox labelled the Federal Circuit’s ruling last
year “a disaster for the software industry”, saying it
would lead to more compatibility problems and less innovation.
Google argued that it only copied the aspects of the Java
system that were needed to allow Android to run Java software,
and that this was legal because copyright law does not protect
The Obama administration had also been torn on the matter
but eventually advised the court to turn down the petition,
finding it flawed and meritless.
The FOSS Patents blog had
a good, detailed post this week on the Supreme Court turning
down the petition.
“Google brought its cert petition at a stage at which it
could also have awaited the outcome in district court before
asking the top U.S. court to revive the non-copyrightability
defense,” wrote Florian Mueller. “But Google presumably knows
that its “fair use” defense, which is the only
liability-related question left to address on remand, is not
really strong. While the Federal Circuit declined to resolve
this question in its entirety and deferred to the district
court for factual findings, it still provided some guidance
that helps Oracle.”
He noted that the denial shows why Orrick attorney Joshua
Rosenkranz is dubbed the “Defibrillator”, for bringing cases
back to life from the dead.
Mueller said: “.the sizable litigation caravan that
had gone from California to Washington DC for the appellate
proceedings – where an amazing reversal of fortunes
occurred, with Oracle now having the upper hand – can
finally head back all the way to the West. There, “fair use”
will be the topic du jour. And, provided that Oracle wins
(which I’ve always believed it will), remedies. This means
injunctive relief more than anything else. The strategic
implications are not described accurately by portraying this as
a billion-dollar case.”
Taylor Swift back in the IP news
Pop star Taylor has been dominating IP headlines this year.
She received much attention for keeping her music off Spotify
as well as her proactive approach to acquiring gTLDs. More
recently, she received attention for demanding Apple pay
performers during the free trial period of its new streaming
This week she was back in the news, but this time for more
negative reasons. The Irish Times revealed that
it was not running a photo of Taylor Swift’s
concert in Dublin this week because the terms of the
photographic contract were “too restrictive”.
The newspaper said Swift’s photograph
authorization contract includes restrictions such as a
“one-time-only” use limit on publishing the photo that elapses
at the end of the year. Any other use of the photo would
require written consent with Swift reserving the right to use
the photographs for publicity and promotion.
The Irish Times deputy picture editor Brenda Fitzsimons
said: “The terms and conditions of the contract are exceedingly
restrictive and just not feasible for a working newspaper and
British freelance photographer Jason Sheldon wrote an open
letter this week in which he said: “Photographers
don’t ask for your music for free. Please
don’t ask us to provide you with your marketing
material for free.”
Section 101 judgments at the half-year stage
Docket Navigator this week revealed the success rates of
Section 101 summary judgment motions in district courts in the
first half of 2015. In
a blog post, Docket Navigator said district courts ruled on
22 motions for summary judgment of invalidity based on Section
101 in the first six months of the year.
“That is only one fewer decision than all of 2014,” said the
Fourteen – or 63.6% – of the 2015 motions
were granted, five (22.7%) were denied, and three (13.6%) were
partially granted and partially denied.
Docket Navigator subscribers can view a motion Success
report showing the success rates of these motions since 2008
Eli Lilly fined in
Brazilian authorities have fined Eli Lilly about $11 million
for “sham” patent litigation,
reports The Wall Street Journal. The litigation was
intended to extend exclusivity for the Gemzar cancer treatment,
said the Administrative Counsel for Economic Defense, known as
The drug maker was accused of filing “contradictory and
misleading” lawsuits in 2007 and 2008 that created an unfair
monopoly for the treatment. The agency said that Eli Lilly
omitted relevant information from its patent request referring
to a change in scope of the patent from being related
exclusively to the production process for the
drug’s active ingredient. The agency also said
that Eli Lilly omitted relevant information from an
administrative process overseen by another agency.
“The respondent practiced sham litigation by filing a
lawsuit against [the Brazilian Health Surveillance Agency] in
order to obtain the exclusive rights over the sales of Gemzar,”
said Ana Frazao, CADE reporting commissioner, in a
The Wall Street Journal quoted an Eli Lilly as saying the
company strongly disagrees with the ruling. The newspaper said
the ruling comes at a time of increasing scrutiny in various
countries of pharmaceutical practices seen as limiting the
availability of generic drugs.
Also on the blog this week:
In our news and analysis this week: