Legal Geek No. 71: Google's Battle Against Spoilers

Welcome back to Legal Geek. This week, we again tackle a topic relevant to Game of Thrones and other TV fans: spoilers, and what Google is doing in the patent world to help combat such spoilers from ruining the day of those trying to avoid them.

https://archive.org/details/LegalGeekEp71

Spoilers are a phenomenon which really did not exist before the sharing of information on the Internet.  Going back all the way to shows like The X-Files and online message boards, fans of story-based television have often wanted to experience the surprise plot twists and highs and lows of narrative without having someone tell them beforehand what is going to happen. With DVR and streaming services now making time-shifting of television the standard for many viewers, plus the omnipresent existence of social media linking us all together more than ever, spoilers have hit an all-time high in relevance.

Mainstream media and the public understand this phenomenon more than ever, as proven by the mostly successful public drive to avoid spreading of spoilers for Star Wars: The Force Awakens when it came out last year. However, even well-meaning media outlets can make mistakes and accidental spoilers just by selecting the wrong photo to put in a twitter post about an episode review, as was the case with a photo of Melisandre which Slate.com initially put on Twitter this week.

Can this spoiler problem be solved? Google certainly thinks so, and it's patent department is riding in like a white knight with multiple patents to try and save the day from spoilers. Even this week, Google was granted another in a series of patents which are innovating in ways to help avoid spoilers.

Going back to 2011 and 2012, Google was first granted two U.S. Patents including 8,676,911 on timeshifting messages located in forums and message boards online based on content which has not yet been reached by a user watching a TV show or the like. In 2015, Google was granted U.S. Patent No. 8,943,529 which claims a system for evaluating when a user changes the channel whether what is on the channel contains spoilers for content yet to be viewed, such as by avoiding tuning to a channel in the middle of an episode being saved for later viewing on the DVR.

Later in 2015, additional patents like U.S. Patent No. 9,002,942 were granted to Google on more broad claims covering the processing and determination of content spoilers, so that a spoiler warning can be given to pertinent users of social media or other technology before a spoiling occurs. Even this past week, one of the image processing and sharing technologies Google is developing as the backbone for implementing this spoiler stopping technology received another granted U.S. Patent No. 9,325,783.  Additional applications are published or in the works as well, which means Google is tackling this spoiler monster with a plethora of patents.

If Google can make these patented technologies the new standard for content processing online, the problem of spoilers may indeed be mostly solved, once and for all. Well, at least except for that jerk at the water cooler at work who speaks too loudly about what he watched live last night.

The Bottom Line is, despite software and business method patents being on shakier ground following some recent Supreme Court decisions, the efforts of Google prove that these types of patents are not dead, especially when addressing problems like spoilers that only became very prevalent thanks to current television and social media technologies and trends. In other words, spoilers are dead, long live spoilers.

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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy

Legal Geek No. 70: Game of Thrones TM Battles

Welcome back to Legal Geek. This week, we celebrate the return of Game of Thrones for its sixth season by taking a look at some of the recent legal battles HBO is involved with regarding trademarks related to the popular show, and how that part of the trademark process works.

https://archive.org/details/LegalGeekEp70

When a trademark application is filed at the U.S. Patent and Trademark Office, an Examining Attorney working for the Office reviews the application after a few weeks or months to determine whether the application complies with all of the rules for having a trademark. While a search is done by the Examining Attorney for competing similar marks which would create a likelihood of confusion conflict, this search is not always perfect.

Thus, the system also allows for third parties in the public to review all trademark applications that are allowed and file Oppositions to them, if necessary. This process is known as publication in the Official Gazette, and if no Opposition is filed within 30 days, the trademark then registers as finalized intellectual property. While the trademark can still be challenged later, this is the best opportunity to cut off registrations and potential trademark infringements before they occur, in my experience.

As a result, this is precisely the mechanism which HBO, the maker of our favorite series about dragons and kings, uses often and has used against them to try and box out what protection is possible for Game of Thrones and related story items. After all, while HBO's copyrights protect the show itself, it is the trademarks where all the potential merchandising revenue is protected.

Just this month, for example, HBO opposed an application for a video game called "Game of Trolls" from Jumpstart Games, Inc., which is intended to be a tie-in for the upcoming DreamWorks movie Trolls. Opposition tends to be a somewhat costly mini-litigation type process, which means small game companies may be inclined to back down rather than fight, even in a gray area like using the word "Game of" in a video game context. Of course, with DreamWorks possibly backing Jumpstart Games in this fight, that might not be what happens here. When two giants get involved, it can be as bloody as the red wedding.

HBO has aggressively defended and tried to expand its rights, with prior recent oppositions to other marks like "Gamethrone," "League of Thrones," and "Game of Drones." Of course, HBO files their own applications and is not immune from being opposed themselves, as was the case recently when the application for "Three-Eyed Raven" was opposed by Ravenswood Winery. With all the Opposition proceedings at the Trademark Office, HBO's legal team likely gears up like the Battle of Blackwater for all this work.

The Bottom Line: HBO will win some of these Opposition battles and lose others, but this is a great example for companies who want to learn how to aggressively pursue and defend what rights can be had on a popular pop culture item like Game of Thrones. Plus, small designers and developers would be wise to know what battles might await in trademark realm should they enter business, especially when trying to profit in some tangential manner off someone else's IP.

And while they do all these legal battles in the background, we can simply keep on enjoying the Khaleesi, the dragons, and all that death.

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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy

Legal Geek No. 69: Podcast "Patent Troll" Finding Mixed Results in Court/USPTO

Welcome back to Legal Geek. This week, we take a look at recent updates in the legal proceedings surrounding everyone's favorite alleged "patent troll" in the podcasting industry.

https://archive.org/details/LegalGeekEp69


A long-time hot topic of conversation in this podcasting world has been the attempted enforcement of a patent owned by Personal Audio LLC against various famous podcasters like Adam Carolla and news networks. This also coincides with one of the hottest topics in U.S. patent law, patent enforcement entities and whether overbroad patents in electronic fields can be cut back.

The specific claims in U.S. Patent 8,112,504 focus on the distribution of old and new episodes together in a compilation file, and while this certainly covers podcasting, it is also very broad.  The question is whether it was too broad a patent grant compared to prior art compilations known in similar fields.

This week, Personal Audio and the Electronic Frontier Foundation began presenting arguments to the Federal Circuit Court of Appeals in this controversy, and the recent history has left this case in a cutting edge place. The EFF has raised money to challenge Personal Audio's patent in new post-grant review proceedings under the America Invents Act at the U.S. Patent Office's Appeal Board, and this process led to a decision by the Board last April that the patent was invalid over some prior art.  This Federal Circuit case is the appeal of that decision to invalidate Personal Audio's patent.

However, in the interim few months, some of the first litigations filed by Personal Audio came to settlement or final decisions. Adam Corolla settled the claim with Personal Audio in August, and then in September, a jury in Texas federal court found the patent to be valid and infringed by CBS, imposing a $1.3 million verdict on the network.

So Personal Audio is winning big in litigations while losing the validity battle at the U.S. Patent Office. Normally there would be potential estoppel effects applied to the loser of one of these proceedings, or a stay in the litigation when a post-grant review is filed, but in this case the parties are different because the EFF is unrelated to defendants like Corolla and CBS and is fighting this fight for different reasons than the litigation defendants.

Those inconsistent results have caused Personal Audio to present some interesting arguments this week, such as arguments that the Texas jury's factual findings must be binding on the Federal Circuit because the Seventh Amendment prevents re-examination of the facts at the appeal level in such circumstances. Yet that case is not what is appealed here, but instead, the administrative Patent Office Appeal Board ruling of invalidity (which would be binding moving forward on Personal Audio, for what it's worth). That circumstance makes this an interesting hole in legal estoppel practice in this relatively new patent challenge context.

The Bottom Line is, beyond just the podcasting industry, Personal Audio may be the so-called patent troll that ends up deciding the important rules moving forward for how competing decisions work at the Patent Office Appeal Board as compared to federal courts. The Patent Office decision last year dealt the alleged troll a seemingly mortal blow, but Personal Audio is not going down without an important legal fight for the landscape of patent law in the future. It will be fascinating to see how these novel arguments play out at the Federal Circuit, if not also the Supreme Court.

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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy