I have a guest post today over at TechFlash about Apple’s recent rejection of my iPhone programmer’s calculator app, Calc 0×0. In rejecting my app submission, Apple’s review team objected to my use of a generic keyword (“bitwise”) to describe a prominent feature of the app (bitwise operations). According to Apple, I cannot use this term as a keyword because there is another application that uses the term as its name (an apparent reference to the IM client for OSX named “Bitwise”). I note that Apple’s keyword policy appears to prohibit the descriptive use of generic terms, use that would clearly be allowed by accepted trademark doctrine.
Calc 0x0 interface
On July 28, 2009, the USPTO issued patent number 7,568,213, the so-called “podcasting patent.”
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This is not strictly patent related, except that it highlights the importance of careful drafting. As illustrated by this cautionary tale, imprecise language can occasionally come back with a vengeance to bite you and/or your client.
The Globe and Mail reports on “the most costly piece of punctuation in Canada,” in which one ambiguously drafted clause costs Rogers Communications over $2M in a contract dispute. (Actually, the culprit is not exactly the punctuation per se, but rather a poorly drafted sentence.)
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Last year, Axios’s managing partner, Adam Philipp, cautioned that Bilski hardly spelled the demise of software patents. And now I’m predicting that the Supreme Court is about to overturn Bilski and rule conclusively that software is quite patentable in the process. Allow me to explain . . .
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Over at the 271 Patent Blog, Peter Zura summarizes Every Penny Counts, Inc. v. Bank of America Corp., 2-07-cv-00042 (M.D. Fla. May 27, 2009, Order) (Magnuson, J.). In this case, the district court holds that, under Bilski, the claimed system is not patentable subject matter under § 101.
In Every Penny Counts, the district court uses Bilski as Judge Newman predicted in her Bilski dissent: “each trial court… will have a blank slate on which to uphold or invalidate claims based on whether there are sufficient ‘meaningful limits’” imposed on the claim by the use of a particular machine.
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This week, over protests from European patent practitioners, the EPO decided to add new limitations on when a divisional application may be filed, beginning next April. Of late, the EPO has become increasingly hostile towards what it regards as “abusive” filing of divisionals—practices such as repeatedly re-filing a divisional patent applications to avoid the effects of a rejection, or filing a divisional before an allowed application issues to pursue broader claims than were allowed.
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Trade secret law is concerned with the protection of technological and commercial information not generally known in the trade against unauthorized commercial use by others. The policy basis for trade secret protection is the desire to encourage research and development by providing protection for the originator of business information, and also to maintain proper standards of business ethics. See Kewanee Oil Company v. Bicron Corp., 416 U.S. 470 (190). The trade secret owner is not granted exclusivity to the information, but rather is only protected against improper acquisition and/or use of the information. As a result, others are free to discover a trade secret by any fair means.
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Yesterday, the Federal Circuit reminded us of another reason why method claims can be so valuable. In Crown Packaging Technology, Inc. v. Rexam Beverage Can Co., No. 08-1284 (Fed. Cir. Mar. 17. 2009), the court held, among other things, that a method claim does not require markings to enforce the patent in litigation.
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This is a Portland case, but I thought you’d find it interesting anyway. The plaintiffs, a Portland chain maker called Blount, Inc., sued a handful of defendants for patent infringement. The jury returned a $2m verdict a few days ago, so I thought I’d show you what $2m looks like on a special verdict form.
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…so were their lawyers
Yesterday, I was looking at an old InterTrust patent application. It was a continuation of an application filed back in Silicon Valley’s dot-com boom times. InterTrust had then, like a lot of our clients do today, very ambitious goals. In this case, those goals didn’t materialize, and InterTrust morphed in to (what I call) a pure innovation company. And it still became very successful because of the value of its intellectual property. Read More »