ANYTHING YOU DO NOT SAY CANNOT BE HELD AGAINST YOU IN COURT
On September 13, 2003, the Federal Circuit (sitting en banc) issued its long awaited decision in Knorr-Bremse Systeme Fuer Nutzfahrzeuge GMBH v. Dana Corporation, et al. At trial, Dana Corporation, et al. (Dana) was found guilty of willful infringement. Dana had consulted with patent counsel about Knorr-Bremse's patents, but had refused to disclose the advice received asserting attorney-client privilege. As such, the district court found that it was "reasonable to conclude that such opinions were unfavorable," leading to a finding of willful infringement and an award of attorneys' fees. Dana appealed. The Federal Circuit overturned the existing precedent, holding that "no adverse inference that an opinion of counsel was or would have been unfavorable flows from an alleged infringer's failure to obtain or produce an exculpatory opinion of counsel. Precedent to the contrary is overruled." Court Opinion & Patently Obvious Blog Post
WHAT GOES AROUND COMES AROUND
In a weird twist of fate, a P2P company has sued the Recording Industry Association of America (RIAA) for patent infringement. The P2P company (Altnet) and its partner, Brilliant Digital Entertainment, are joint venture partners with Sharman Networks (owners of the Kazaa P2P software program). The patent covers a file's unique fingerprint. In the suit filed in the Central District of California, Altnet reportedly alleges that the RIAA and others have been violating the patent in determining the fingerprints of their copyrighted works and then searching P2P networks for matching files.Computer Weekly Article& PCWorld Article
THE GOOSE THAT LAID THE GOLDEN EGG
The Public Patent Foundation (PUBPAT) filed a request for reexamination of Pfizer's patent (USPN 5,969,156) for the cholesterol lowering drug atorvastatin (LIPITOR) on September 14, 2004. The reexamination request alleges that two earlier patents (USPN 5,273,995 and USPN 5,686,104) anticipate (disclose each and every claimed element) all of the claims of the 156 patent. The 156 patent is not set to expire until 2016, a fact that surely makes Pfizer investors smile. PUBPAT appears to have chosen to attack the patent due to concerns that Pfizer was being greedy in its pricing of the drug, thereby limiting access to this "wonder drug" by the poor and elderly.Pfizer's Patent& PUBPAT's News Release& PUBPAT's Reexamination Request
BETA TO THE MAX
More than 5,000 people participated in Downhill Battle's September 14, 2004 "Save Betamax National Call In Day" telephone blitz, calling their Congressional Representatives to voice their opposition to the Induce Act. The Act, formally called "Inducing Infringement of Copyrights Act (SB2560)," would add a cause of action for inducing copyright infringement to the Copyright Act (much like the current patent inducement cause of action). No word on whether the guys at the Induce Act Blog participated. Those opposed to the Induce Act are arguing that it is an attempt to circumvent the Supreme Court's ruling in the Betamax case, which gave consumers broad fair use rights. Wired Article& The "Betamax" Case (Sony v. Universal) & Save Betamax's Web Site& Induce Act Blog
PATENT APPEAL PROCEDURE CHANGES
Patent practitioners, don't forget that the new regulations covering practice before the Board of Patent Appeals and Interferences (BPIA) went into effect on September 13, 2004.New Patent Rules
IP NEWS SOURCES AND IP SEARCHING TIPS
Finally, links to a couple great resources discussed in IP blogs last week. Patent Attorney Dennis Crouch (whose "Patently Obvious" blog is a Google News source) recently wrote an article on how to find intellectual property law news on the Internet. The article provides links to judicial opinion sources, USPTO news and notices, legislative changes, other IP blogs, and how to search the "mainstream media." Patently Obvious Article. Another excellent resource is Robert Ambrogi's article entitled "Patent and Trademark Searching Via the Web." In the article, Robert (author of "The Essential Guide to the Best (and Worst) Legal Sites on the Web") walks through (with links) what he feels are the "best Web sites for searching patents and trademarks worldwide."LegalLine Article
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