Welcome back to Legal Geek. This week, we take a look at the latest stab for ending the patent troll problem, and whether Google is really just becoming the biggest of the patent trolls instead of solving the problem.
https://archive.org/details/LegalGeekEp42
In a week where the Supreme Court argues the issue of gay marriage and more race protests break out in major cities, of course Google goes and makes the most interesting patent story in months to steal this segment. Google announced the Patent Purchase Promotion this week, in which Google will offer to buy any patented intellectual property that an inventor or patent owner wants to sell.
Here's how it will work. From May 8 to May 22, interested sellers can submit what patent rights they seek to sell and an asking price into Google, and Google will decide after reviewing the offers what they will purchase by June 26. There is currently no clear marketplace for selling patent rights, so what Google is offering here is relatively innovative, while also being potentially scary.
Google is marketing this program as a way to slow the patent troll problem. Congress has struggled to find the right way to stop trollish patent enforcement activities, while also protecting the rights of legitimate inventors and investors who may need to defend rights in court even when they are not able to practice their inventions on a large scale. Google thinks that this program will allow patent sellers to sell to them and hopefully keep those same patent rights out of the hands of assertion entities, which are the trolls who buy patent rights just to threaten lawsuits later to extort settlements from many others.
Will that goal actually be achieved? Or is Google really becoming poised to be the biggest of the patent trolls? That's the open question.
Google will, as a publicly traded company, always be concerned about the bottom line. This patent purchase program will need to generate revenue or saved costs in some manner commensurate with the high expense Google will undertake to procure all these patent rights. That money could come from cheap licenses to many licensors, a de facto creative commons program for patents in the best case. Google may also treat some of these acquisitions as a way to avoid lost costs in paying its lawyers to defend lawsuits later if someone else buys rights relevant to their own products.
However, Google could just end up selling the rights later or taking others to court, much like the same patent assertion entities everyone complains about. Google is no stranger to patent lawsuits, having fought numerous battles over patents in the smartphone industry to protect the Android OS.
Bottom line - No single step will solve the patent troll problem for good, but Google is taking an interesting stab with this program. We can only hope Google is investing this money to make a better patent system rather than merely for strategic, or even worse, trolling reasons.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, April 30, 2015
Thursday, April 23, 2015
Legal Geek No. 41: Apple (Patent) Watch
Welcome back to Legal Geek. This week, we take a look at whether Apple's new smart watch, released today, will revitalize yet another device market, and whether Apple will have a thicket of patents blocking competitors from entering the market easily.
https://archive.org/details/LegalGeekEp41
Apple has been at or near the leading edge on two of the most recent major technological innovations, at least from a commercial standpoint. The iPhone took smartphones to a different level in 2007 when that market was filled with flip phones and Blackberries, which of course led to competitors like Samsung and Google getting in on the mix as well over time.
Then a couple years later in 2010, Apple did it again with the iPad. All of a sudden, tablet computing was the place to be, forcing e-readers, laptop computers, and even eventually smartphones to become more like these tablet devices. Once again, competitors from Microsoft to Samsung later flooded the market as well.
Apple also happens to be one of the most active patent filing companies in the U.S. and abroad. That means just as much as innovating and developing products, Apple fights with competitors in court to try and secure and maintain superior market position. Apple and Samsung, for example, are locked in a years-long worldwide war over various phones and phone-related patents. The tablet patent market is heating up in court as well.
Today, the first generation of Apple Watch arrives. Just like with the iPhone and iPad, the first generation watch is being released to mixed critical review, but wild customer demand. Assuming watches come back into style over the next couple years, there will be plenty of lookalike competitors trying to cut into this market that Apple could expand, if things go well. It's an interesting gambit for a company which kind of made watches obsolete for many people by making smartphones so omnipresent, but then again, we all said the same thing about a tablet because who wants a bigger device that can't even work as a phone?
What's more interesting is to see whether Apple has started putting up enough of a patent thicket to make entering this marketplace hazardous to other companies. Some of the design patents on the bands for the Apple watch began issuing in March and April despite being filed only back in last August, and there's already 4 patents issued on some of those aesthetic designs. Which means competitors will have to be careful with the watch bands they offer with smart watches, let alone what patents cover the watch itself!
One would imagine that many of the important keystone utility patents, which do not publish as applications for 18 months after filing, will only start becoming public knowledge now and in the next year. The patent office is pretty backlogged, so it could take some time for these more important patents to come into allowance and effect. But if the plethora of design patents on watch bands is any indication, Apple is set to protect this innovation just as much as the others they now litigate frequently.
Bottom line - Apple is a leader in innovation and in patent litigation. That does not appear likely to change, even with a new hot idea and no Steve Jobs around anymore.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp41
Apple has been at or near the leading edge on two of the most recent major technological innovations, at least from a commercial standpoint. The iPhone took smartphones to a different level in 2007 when that market was filled with flip phones and Blackberries, which of course led to competitors like Samsung and Google getting in on the mix as well over time.
Then a couple years later in 2010, Apple did it again with the iPad. All of a sudden, tablet computing was the place to be, forcing e-readers, laptop computers, and even eventually smartphones to become more like these tablet devices. Once again, competitors from Microsoft to Samsung later flooded the market as well.
Apple also happens to be one of the most active patent filing companies in the U.S. and abroad. That means just as much as innovating and developing products, Apple fights with competitors in court to try and secure and maintain superior market position. Apple and Samsung, for example, are locked in a years-long worldwide war over various phones and phone-related patents. The tablet patent market is heating up in court as well.
Today, the first generation of Apple Watch arrives. Just like with the iPhone and iPad, the first generation watch is being released to mixed critical review, but wild customer demand. Assuming watches come back into style over the next couple years, there will be plenty of lookalike competitors trying to cut into this market that Apple could expand, if things go well. It's an interesting gambit for a company which kind of made watches obsolete for many people by making smartphones so omnipresent, but then again, we all said the same thing about a tablet because who wants a bigger device that can't even work as a phone?
What's more interesting is to see whether Apple has started putting up enough of a patent thicket to make entering this marketplace hazardous to other companies. Some of the design patents on the bands for the Apple watch began issuing in March and April despite being filed only back in last August, and there's already 4 patents issued on some of those aesthetic designs. Which means competitors will have to be careful with the watch bands they offer with smart watches, let alone what patents cover the watch itself!
One would imagine that many of the important keystone utility patents, which do not publish as applications for 18 months after filing, will only start becoming public knowledge now and in the next year. The patent office is pretty backlogged, so it could take some time for these more important patents to come into allowance and effect. But if the plethora of design patents on watch bands is any indication, Apple is set to protect this innovation just as much as the others they now litigate frequently.
Bottom line - Apple is a leader in innovation and in patent litigation. That does not appear likely to change, even with a new hot idea and no Steve Jobs around anymore.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, April 9, 2015
Legal Geek No. 40: The Curious Case of Post-Mortem Right of Publicity
Welcome back to Legal Geek. This week, we take a look at the wide variation in local standards for post-mortem rights of publicity thanks to a fun bit of legal research I performed this week for a friend.
https://archive.org/details/LegalGeekEp40
The right of publicity, also known as personality rights, protects an individual by providing the right to control how one's name, image, likeness, or other identity features are used in a commercial context. In short, companies cannot market products using endorsement-like materials where the person on the marketing products has not consented or licensed those rights to the company. These laws are relatively recent, as the first ones appeared around the 1950s.
The personality rights are based on natural rights and property rights theories, therefore being based on similar legal theories like copyright. Therefore, in many jurisdictions these rights survive death and pass to heirs, again, just like copyright terms. But in the United States, these personality rights are primarily based on state law, and our union of states vary wildly as far as how long these rights last after death.
27 states have explicitly established some form of rights of publicity, with a little over half these states setting forth the right in a statute or law that has been passed by legislators. The other states only have rights defined by common law, meaning judge-made law in case law decisions focusing on such claims. Perhaps not surprisingly, the standards vary dramatically across these states based on different judges and legislators making the laws, and the most dramatic differences come in post-mortem rights for heirs after the death of a person.
For example, the three states with the longest post mortem personality rights granted by statute or law are Indiana and Oklahoma, at 100 years apiece, and Tennessee, with an indefinite right so long as the persona is in continual use. However, these state laws have not been challenged or made by judges in courts, unlike bigger jurisdictions. But even those judges cannot agree, as California currently provides 70 years post mortem personality rights, Virginia 20 years, Florida 40 years, and New York none. It makes a real difference where you die, as that's where these rights are determined!
If that doesn't seem fair, that's because it is not. While some celebrities or luminaries like Albert Einstein benefit from decisions and law allowing continued control of the deceased person's persona, others like Nikola Tesla do not simply because they died in New York.
Bottom line - even though all 50 states can likely be implied to have rights of publicity in some form, the piecemeal state-by-state method of defining the term and operation of this property right has resulted in what appears to be a total mess. You might not like copyright's long term, but at least it is predictable. Perhaps it is time for the USA to consider standardizing the right of publicity as well, both during and after death.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp40
The right of publicity, also known as personality rights, protects an individual by providing the right to control how one's name, image, likeness, or other identity features are used in a commercial context. In short, companies cannot market products using endorsement-like materials where the person on the marketing products has not consented or licensed those rights to the company. These laws are relatively recent, as the first ones appeared around the 1950s.
The personality rights are based on natural rights and property rights theories, therefore being based on similar legal theories like copyright. Therefore, in many jurisdictions these rights survive death and pass to heirs, again, just like copyright terms. But in the United States, these personality rights are primarily based on state law, and our union of states vary wildly as far as how long these rights last after death.
27 states have explicitly established some form of rights of publicity, with a little over half these states setting forth the right in a statute or law that has been passed by legislators. The other states only have rights defined by common law, meaning judge-made law in case law decisions focusing on such claims. Perhaps not surprisingly, the standards vary dramatically across these states based on different judges and legislators making the laws, and the most dramatic differences come in post-mortem rights for heirs after the death of a person.
For example, the three states with the longest post mortem personality rights granted by statute or law are Indiana and Oklahoma, at 100 years apiece, and Tennessee, with an indefinite right so long as the persona is in continual use. However, these state laws have not been challenged or made by judges in courts, unlike bigger jurisdictions. But even those judges cannot agree, as California currently provides 70 years post mortem personality rights, Virginia 20 years, Florida 40 years, and New York none. It makes a real difference where you die, as that's where these rights are determined!
If that doesn't seem fair, that's because it is not. While some celebrities or luminaries like Albert Einstein benefit from decisions and law allowing continued control of the deceased person's persona, others like Nikola Tesla do not simply because they died in New York.
Bottom line - even though all 50 states can likely be implied to have rights of publicity in some form, the piecemeal state-by-state method of defining the term and operation of this property right has resulted in what appears to be a total mess. You might not like copyright's long term, but at least it is predictable. Perhaps it is time for the USA to consider standardizing the right of publicity as well, both during and after death.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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