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 on: Today at 07:49 pm 
Started by jerhutch - Last post by CRfan
This mistake (misunderstanding) is way too common among (amateur) photographers/artists when they share creative content with others; it continues to give them headaches.

I would first contact the alleged infringer and see if you can amicably resolve the matter.   

If discussions with the alleged infringer fail, you can file a DMCA take-down notice to get your photograph removed.  If the infringer files a counter notice, then you may have to file suit to exercise your rights. 

Otherwise, this is what you could have done:

1)  WATERMARK:  Before releasing, sharing, distributing, licensing/selling your digital photographs, affix them with a watermark and corresponding metadata that includes your copyright attribution and a way third-parties can contact you (via your web URL or social media handle) for rights licensing or photo reprint sales.

Parties who remove or cover a watermark, metadata, and other DMCA “Copyright Management Information” (CMI) to hide an infringement can be liable per 17 USC §§ 1202-1203 for statutory money damages from $2,500 to $25,000 plus potential recoupment of attorney fees and costs plus damages (all at the court’s discretion).  The good news is that this DMCA provision of the Copyright Act does not require photographers/artists and other rights owners to timely register their copyrights.  This is leverage to push infringers to settle out of court.

2)  SECURE YOUR AGREEMENTS IN WRITING:  Get everything in writing (an email could work) that informs the licensee (the person who’s receiving your digital photograph) what s/he can and can NOT do with your photograph (be specific!).  Get this agreement BEFORE releasing your photograph. 

3)  REGISTER YOUR COPYRIGHT:  Timely registering your copyright with the US Copyright Office prior to the infringement or within three-months of its first-publication would give you leverage to push the infringer to settle out of court.  If the matter doesn’t settle and proceeds to trial where you prevail, the infringer can now be liable for statutory money damages from $750 to $30,000 and up to $150,000 for willful infringement; you’re also eligible to recoup your attorney fees and costs (all at the court’s discretion). 

Doing anyone of the three things would have helped your position. 

Visiting with a copyright/intellectual property (litigator) attorney is a good move to discuss your legal options if you’re unable to settle with the infringer.

 on: Today at 12:10 pm 
Started by dab2d - Last post by dab2d
Freaking Alice

 on: Today at 12:04 pm 
Started by NormanBroks - Last post by NormanBroks
How to Forex make easy money from home

 on: Yesterday at 06:12 pm 
Started by jgmiko - Last post by mersenne
With some of my clients, who were willing to pay for extra claims, I filed two sets of apparatus claims:  one set with means plus function language, and one set without. 

This is an important practicality -- I would never file only means-plus-function claims.  I submit them occasionally, where they seem appropriate, and where I have extra claims free.  I'm not sure I would currently recommend paying extra-claim fees just to include a MPF claim set, given the Office's present fondness for restriction requirements.

 on: Yesterday at 05:00 pm 
Started by jgmiko - Last post by smgsmc
This is somewhat tangential to the OP's initial question concerning preliminary amendments.  But since so much of the discussion has focussed on 112(f) [previous 112 (p6)], I'll ask a question I've asked before, but have never received a satisfactory answer to.  It's my understanding that a long time ago, means plus function claiming was actually preferred to give broader scope to claims, based on the "and equivalents thereof" concluding phrase.  But apparently one or more court cases then gutted the "equivalents" to zilch, with the net result that presently the scope is limited to the embodiments explicitly disclosed in the spec.  Does anyone have cites to the relevant court cases that led to the 180 deg about face for means plus function claims?

I'm not aware of any cases cutting down greatly on equivalents for examining purposes at least (I do consider the equivalents issue when examining but it doesn't really make a difference often), and I'm not sure about long ago, but today I feel like 112(f) limitations are definitely narrower than a similar limitation without 112(f).

112(f) limitation: covers structure in the spec that performs the function + equivalents.

Non-112(f) limitation: covers anything that performs the function, whether equivalent or not.

Logically, it seems like even if the scope of 112(f) equivalents is vast, it could never be broader than a non-112(f) interpretation, which covers anything.

Which is why, I guess, the Office is trying to greatly enforce 112(f) claiming nowadays. Non-112(f) limitations are so broad that it is a lot harder to enable the full scope of the claim. But then 112(f) limitations are easier to find indefinite (if no structure is clearly and explicitly described that's indefinite, whereas a non-112(f) would be fine since a PHOSITA would be good with it if it's well known).

Thanks.  Interesting to get an Examiner's perspective.  So, I gather an Examiner's main concern with "equivalents" is what prior-art can be used to reject?  From a patent practitioner's perspective, the main concern is what "equivalents" will infringe.  And here's where I get different opinions from old timers (20 to 30 yrs experience). 

A common example used is "fastener" vs "means for fastening".  If you ask a PHOSITA (e.g., a mechanical engineer) whether X is a fastener, then he will probably say yes if X is a nail, screw, nut-and-bolt, or staple; but he will probably say no, if X is a glue joint, solder joint, or weld joint.  You don't want someone to avoid infringement by a trivial design-around such as joining two components together with epoxy instead of a screw.  So supposedly at one time, according to old timers I talked to, the way to provide broader scope of claim coverage was to use "means for fastening" language, which ostensibly would cover epoxy.  Hence, "means for fastening" would be broader than "fastener", exactly the opposite of what the current view is (and the view you've expressed).

Similarly, in the OP's example, as discussed in mersenne's follow-up, a PHOSITA would have a good notion of what a "spring" is; typically it would not include a piece of foam rubber, or an electromagnet in opposition; hence, a need for a broader term such as "means for providing spring resistance".

With some of my clients, who were willing to pay for extra claims, I filed two sets of apparatus claims:  one set with means plus function language, and one set without. 

 on: Yesterday at 04:36 pm 
Started by jgmiko - Last post by smgsmc

Hi.  It has been a fairly steady chipping away in my impression.  Check out this professor's website as searched in the link below.

Lots of cases (court and BPAI precedential opinions) are discussed about scope of infringement, validity, % decline in use by patentees, etc. of MPF claiming.  Note the search results do not order by date, so you will see (e.g.) a 2005 article sandwiched between more recent articles.


Thanks, I'll check those out.

 on: Yesterday at 04:27 pm 
Started by dab2d - Last post by smgsmc
I agree that adding that limitation would result in having to sue two actors for joint infringement.  But it may be to no avail.  Don't have time to look up the cite in the 101 guidelines.  But I'm pretty sure there is caselaw (or at least USPTO guidance) to the effect that trivial pre-solution or post-solution acts won't get you over the 101 hump; that is, if the heart of the invention is receiving input data, performing algorithms, and generating output data, then steps such as mounting a sensor, measuring data with a sensor, sending data from the sensor to a computer, and displaying output data on a display won't get you around 101 post-Alice.

 on: Yesterday at 01:35 pm 
Started by turbo2ltr - Last post by turbo2ltr
We have a line of exercise related products.  Its a wide range. We submitted it by basically looking at trademarks held by our competitors.

USPTO came back with some minor changes to our identification of goods.  But reading it over, it's rather specific.  There is an "exercise equipment" class, but apparently that's too broad, it seems they are saying have to do "exercise equipment, namely......" and list all the things you make.  But we are always developing new items so it's hard to list EVERY type of item we make or will ever make.

Any suggestions?  I'd like to make it as broad as possible... though USPTO probably wants to make it as specific as possible.  Is there a limit to how long the list can be?

 on: Yesterday at 01:09 pm 
Started by dab2d - Last post by mersenne
You'd be able to enforce it better than a claim that you couldn't get allowed due to §101!  It's obviously better to have a claim that you can assert against a single actor (particularly if it's possible for one of multiple actors to do its part outside the US) but if you can't get that, then a multi-actor claim is better than no claim at all.

As a practical matter (and I can't do much besides be practical, since I'm not as good at elegant legal analysis as other people here) I'd probably add the "applying a sensor to X" claim as a dependent.  That way, if you happen to evade §101 trouble with the main claim, you're in great shape; and if you don't, then you get a read on whether that approach to satisfying §101 might work (depending on whether the §101 is applied to only the independent claim, or to both the independent and dependent claims).

 on: Yesterday at 11:27 am 
Started by dab2d - Last post by dab2d
So say you have a method claim that obtains data from a sensor and does X,Y, Z. Because of fear of 101, you want to add "applying a sensor to X".

Great, it will probably get you out of 101. But do you now have an issue with the fact that it is a person that applies the sensor and a computer that does the rest of the method? Would you be able to enforce this claim?

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