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#1
I'm wondering what people think about NFTs, and whether anyone has run into NFTs in their practices yet.

Brief, not particularly good, video trying to explain the concept:

https://www.youtube.com/watch?v=c-fUaj8C0o0

Article on an NFT sale that happened at the end of 2020:

https://www.esquire.com/entertainment/a35500985/who-is-beeple-mike-winkelmann-nft-interview/

My own understanding of them, which is incomplete and may be inaccurate, is that they are a way of claiming authenticity and perhaps proving provenance of even digital artwork.  The example I saw a few weeks ago was of the above sale by "Beeple", netting him millions in exchange for a few Android tablets stuck in plastic display stands with QR codes stickered onto their fronts.  The tablets were displaying his drawings, and if the QR codes were scanned, they gave you a URL which would take you to a website with ownership information.

From what I understand, any transfer of the artwork to a new owner is only considered legitimate if the NFT associated with the artwork is also moved to the new owner, and furthermore, the contract with the "Nifty Gateway" company and artist requires that they be given a (large) percentage of the sales proceeds in order to effect the transfer.  Also, the artist is still free to create copies, derivative works, and so on -- possession of the token merely means that you own "the original" of a digital artwork that can be copied exactly.  So, rather than ownership, this is more of a single-use exclusive license which is never fully alienable and which requires permission and payment to transfer.

Thoughts?
#2
In case anyone's been living in a cheese-maturing cave for the last few days, some lawyers for the Italian Grana Padano cheese consortium sent a cease-and-desist letter to a YouTube video maker for putting up a video on how to make "grana padano STYLE cheese".  The cheesemaker made it quite clear that "grana padano" is a "protected designation of origin" and that cheeses made outside of that area cannot be called that, but here was how to make a cheese "in that style".

The video about the c-n-d is here:

http://youtu.be/M_AzMLhPF1Q

and the original video (which will be removed in about 24-36 hours) is (or was, if you're too late) here:

http://youtu.be/s6T_BJjitGQ

Although a PDO is not itself a trademark, I'm asking in the Trademark Forum because the c-n-d cites trademark registrations and trademark law as the reason they're demanding the takedown.

I'm just wondering if a PDO, or trademark rights, can really force this sort of a takedown, or if this is overreach and trademark bullying by the consortium.
#3
So, apparently Customs seized a shipment of wireless earbuds from China last week.  Their initial claim was that the earbuds were "counterfeit Apple", but after it became rather blatantly clear that the earbuds were a well-known brand that was labeled appropriately, Customs then released a statement saying that the earbuds violated an Apple "configuration trademark".

https://onemileatatime.com/cbp-seizing-apple-airpods/

https://ccbjournal.com/articles/product-configuration-trademarks-burdens-and-benefits-securing-protection-product-desi

It sounds like a "configuration trademark" is some sort of registration of the design aspects of a product.  But I thought that's what "design patents" ("registered industrial designs" in the rest of the world) were.

I assume a big advantage is that a trademark can last forever, whereas a design patent expires after 14 years.  What are some other advantages and disadvantages?  What's the difference between them?
#4
Alfred files an application for trademark registration for a term that was coined for identifying identity-cloaking systems and software by a pseudonymous person, call him Batman, a decade ago.

The term has since blossomed into common usage for a major category of goods and services.  Millions of people on the internet use "BatWare" to mask themselves.

Alfred files the registration application in the name of Batman.

TWIST:  this Alfred may or may not be Batman's actual butler Alfred.  He might just be some random jerk named Alfred.  No one knows, there is no way to prove it, and the odds are very strong that he is just some random jerk.

Does Alfred have to prove that he has the right to represent Batman, or indeed any association with him at all?

Would Batman himself have to step forward to assert that this Alfred doesn't represent him, or could anyone point out that there is no proven connection between them?

Note that this is unlike the Linux trademark case, in which the USPTO allowed registration of the term "Linux" to a random jerk who then proceeded to try to sue everyone doing business in the Linux software ecosystem, because of the specific claim of association by this random Alfred with Batman.
#5
Years ago, Jim Ivey mentioned that he had done some programming to develop a server that would authenticate that a document existed in a particular form as of a particular date.  From what I remember, he'd only done it as a proof-of-concept, not as something that could be released. In particular, the hashing function he used (MD5 or SHA1) had later been broken such that it was possible to create the same checksums for two different documents.

Well, someone has put out a similar product:

http://web.archive.org/web/20150116045846/http://bravenewcoin.com/news/using-blockchain-technology-to-prove-existence-of-a-document/

The article above discusses how the site works, and how much it charges.  Basically, it does a hash of the document you upload, then puts the hash in the comment field of a Bitcoin transaction and processes the transaction.  I assume it's using SHA256, which still hasn't been broken (and, hopefully, won't be any time soon).  Since the hash is loaded onto the Bitcoin blockchain, it's preserved theoretically forever.  It's worth noting also that they've reduced the Bitcoin fee, so it's only about $2.75 plus whatever the current transaction fees are at the moment you submit a request.

Note that you can use any sort of document you want, but for a lot of formats, such as for example Microsoft Word, it doesn't matter if you don't make any changes, the internal metadata can still get changed if you merely open and close the document.  So, you have to save off the document to an unalterable medium (CD-ROM or other write-once media, for example, or an archive drive) when you submit it, if you really want to be able to show a court a document with the correct hash value that demonstrates that it hasn't been altered.

And, of course, note that someone might discover a way to break the SHA256 hash algorithm, rendering the authentication meaningless, just like they did for MD5 and SHA1.  And that I don't know whether a court would view this type of authentication as any sort of proof.
#6
Artist creates art.

Copyright on art automatically attaches to Artist, because basic copyright law stuff.

Manufacturer sees art.

Manufacturer manufactures product with art plastered on item.

Manufacturer labels artwork as "TM".

Does Manufacturer have a valid trademark with respect to that art?

If ThirdParty uses the art on a similar or same product, can ThirdParty defend against a trademark infringement lawsuit by pointing out that Manufacturer violated Artist's copyright?  Does Artist need to be a part of the lawsuit? What if Artist is unknown and unfindable?
#7
Over the last few months, the Trump Administration has negotiated to replace NAFTA with a new treaty called USMCA.

How will this affect patent law?  It's been a while since I dragged myself through the MPEP, but there at least used to be provisions that were specific to NAFTA countries.
#8
For complex machinery, which is in a crowded old-tech field where there are hundreds of existing designs, how do companies prevent copycats?

For example, firearms manufacturing has become so simple nowadays that multiple companies churn out knockoffs of the Ruger 10/22, a very old design.  A company called GSG was, for a while, churning out replica HK MP5s (but in .22LR).  Glock is being substantially duplicated by a company called Polymer80.

HK successfully sued and stopped GSG a few years ago, but the others are still ongoing.  Polymer80 is copying the original 1980s Glock designs, not the latest generation of handguns, but the 10/22 clones are virtually identical aside from the markings and perhaps a few small cosmetic features.

Are there any ways to protect a largely new design, aside from trying to find some tiny little niche patent on a random tiny little feature?
#9
3rd party files reexam
Patentee goes through entire process, loses, a few buried dependent claims survive, no independents do
Patentee requests a rehearing and reconsideration, loses on both
APJ decision tells Patentee that the decision is final and the only option is judicial review.

1. If Patentee seeks judicial review, does the notice that Patentee sends to the Director go into the IFW for the reexam?  How long does Patentee have to file for that?
2. After the APJ denial for a rehearing, does the whole mess go back to the (re)Examiners to file the changes to the claims? Is the Patentee involved in that process, or do the Examiners just do a copy-and-paste job on the surviving claims to make them conform to the independent/dependent format?  Is there an approximate timeframe?
3. If Patentee seeks judicial review, does the court case remain ex parte or can the 3rd party participate? Can the 3rd party be required to participate?
#10
The "baby Trump balloon" in Londonstan got me to wondering, what rights do sitting presidents, and I guess other public political figures, have to control the use of their image?  Especially commercially, for products that aren't related to political speech?

On the other side of the spectrum, there were Obama dildos and Obama chia pets being sold.  I think the chia pets may have been somehow licensed, but I doubt the dildos were.

And there have been a few products featuring Melania, some in extremely bad taste.

I realize it gets much more complicated when considering multiple countries, so dealing with just the U.S. is fine.
#11
After losing a reexam at PTAB, what would be the next stage for a party who wants to keep fighting?  Is there any further way to fight it within the USPTO, or would it have to go to federal court?  Is there any way to fight it at all?

(No, it isn't me.)
#12
First, is there any other major caselaw beyond Festo for DoE?  I don't think I've ever heard of a single other case being cited as a precedent related to DoE.

Second, if a limitation is merely moved from one place to another during prosecution (with minor grammatical editing to make it fit in the new location), or is deleted, is there any effect on DoE?

Third, we've occasionally had discussions about how ranges are sometimes construed loosely;  can that happen during infringement hearings, or is that strictly a prosecution-phase risk for rejections?  In particular, can a claim element with "plurality" ever be construed to be infringed by a singleton, because the singleton is "equivalent" to the plurality?  If a claim recites a specific number of items, could a judge during a Markman hearing decide that the numerical limitation is flexible?

Fourth, since Festo, any added limitation to a claim blocks DoE for that limitation.  But how strict is that?  Let's say you have the following:

1. (original) A circuit comprising a vacuum tube, where the grid of the vacuum tube is connected to an oscillator, and BLABLABLAH.

2. (original) The circuit of claim 1, where the vacuum tube is a triode.

You were forced to amend during prosecution to:

1. (currently amended)  A circuit comprising a vacuum tube, where the grid of the vacuum tube is connected to an oscillator, and BLABLABLAH; where the vacuum tube is a triode.

2. (cancelled)

Then someone invents transistors.  Does this mean that you've completely lost DoE for transistors, even though a basic NPN transistor is equivalent to a triode?  I understand that Festo would block you from arguing that a pentode would infringe (because that was the cause of the rejection and amendment) or even one of those four-pin transistors (can't think of the name), and that makes sense, but completely shuttering all equivalents such as a basic 2N2222 NPN seems overly harsh.
#13
http://www.bbc.co.uk/news/technology-42580523

A musician who made a 10-hour long video of continuous white noise - indistinct electronic hissing - has said five copyright infringement claims have been made against him.
#14
Note, there are really two parts to this, one an ethics issue and the other a copyright fair use issue, which is why I put it in the Copyright section.

I have an exercise intended for an advanced patent law class which is based on real-world information.  The problem is that the situation was real and the parties involved are existing businesses.  Even if I were to change the names, it would be trivial for a student to look them up.  I also have screenshots of the companies' websites to show the relevant physical products.  (The products are not the photos themselves or the websites the images were on;  the products are mechanical devices being sold, e.g., a bicycle hub or a toaster oven.)  I could conceivably cut this down to a single screenshot of one product, and rely on the government-published "free to the world" patent information for the other.

Any thoughts on this from an ethics standpoint?  Is it a problem?  Any potential liability for disclosing a company's legal liabilities (where there is no attorney-client privilege involved)?

Would fair use apply for the screenshots since it is for academic use?  What if I were to attempt to sell the exercise commercially?  Regarding the "four factors":
1. the use in an exercise is substantially different from the original use of product marketing;  I don't know if this would count as "transformative".
2. I can remove most of the creative aspects of the screenshots to show just the products, if necessary.
3. See 2.
4. the images themselves are not the products and are not themselves being sold, so I don't see that they would impact the market for or value of the products. 
#16
From the date an appeal is docketed, how long does it usually take for the decision to be handed down?  Simple mechanical case.
#17
Other / Pat2pdf.org broken?
11-11-17 at 11:20 AM
Anyone know how to reach whoever runs the site to let them know?  Looks like something changed on the USPTO's servers and now the script that the site uses can't retrieve anything.
#18
For those of you who are science fiction fans, you may remember Walter Jon Williams' novel, "Voice of the Whirlwind".  He re-released it yesterday with a new cover:

http://www.walterjonwilliams.net/wp-content/uploads/2017/10/VotW18.6x9-683x1024.jpg

Also within the last few days, someone else released a novel with this cover:

https://images-na.ssl-images-amazon.com/images/I/5134FWXPS8L._SY346_.jpg

The core part of the image is identical.  There are a few minor changes made, such as the blur, some red "dust" highlights, and a slight vertical compression.

If the covers were by two different artists -- or rather one artist and one copyright-infringing "artist" -- then it's obvious that this is actionable.

If the covers were by the same artist, and Williams received an assignment of the copyright, then I believe it would still be copyright infringement.

But assuming arguendo that there is no copyright assignment of the first cover image to Walter Jon Williams, and that the artist is the same, would there be any way to go after the artist for reuse of this sort, if not under copyright then as some sort of trade-dress-like action?  An argument could be made that the two highly similar covers would confuse readers into thinking that they are in the same series, or that the second author is a pseudonym for Williams.

A few months ago, Amazon halted sales of a book over a similar cover-confusion issue;  in that case, the mimic second book was deliberately mocking the first book.

http://file770.com/?p=33951

But that was just Amazon kicking Vox Day in the nuts because, well, Vox Day.  'Nuff said.  I'm wondering what legal issues and avenues might exist in cases like this.
#19
Application gets a restriction requirement, group 1 is chosen.

Applicant files a CONTINUATION for group 2 because applicant's patent engineer doesn't understand the difference and refuses to listen to advice.

Can the continuation later be converted into a divisional?  If, after starting to prosecute the claims for group 2 and getting a partial allowance, the applicant later files a divisional trying to get broader claims, can this salvage the situation?  Can a divisional be filed two or three years from now after the original application is no longer pending, but dividing from a child continuation?
#20
Looking back in time, I ran into this thread:

http://www.intelproplaw.com/ip_forum/index.php?topic=17618.0

which has some discussion about how KSR didn't completely destroy the doctrine, but also says it is not very useful any longer.  Additionally, I recall reading here that examiners really hate it when applicants raise the non-analogous art argument, because it implies that they did a bad job or something.

However, I've got a rejection that is wildly off.  The examiner cites a single reference which is radically different (completely different technology field AND completely different problem), then uses it as a 103 by saying that multiple components can be substituted and calling them merely "design choices".

If I don't use the non-analogous art argument, can it still be raised on appeal, or have I conceded it?

I can still argue that the radical structural revisions that would have to be done cannot possibly work, but his current argument is so "it's just obvious, it's just a design choice!" that there's no reason he couldn't handwave that off, too.

Has AIA made it any worse than KSR already did?


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