Welcome back to Legal Geek. This week, we take a look at one of the more interesting Supreme Court cases of this term about to come up for oral argument, the partisan gerrymandering case entitled Gill v. Whitford.
https://archive.org/details/LegalGeekEp116
https://archive.org/details/LegalGeekEp116
Gerrymandering is a fun word, but most people do not know what it means. Gerrymandering is the practice of drawing electoral district lines to determine what regions vote for what politicians, in such a manner that attempts to provide an advantage for a political party, or a race, or some other group. As most states reconsider and redraw their districts every 10 years following the Census, this practice is a concern that comes up periodically in some parts of the country.
This Supreme Court case stems from Wisconsin, where republicans narrowly took control of the state legislature and the governor's mansion in 2010 during the post-Obama rising tide of that party. This was the first time in over 100 years that party had such control of all branches of state government. When the Census came out and the electoral districts were to be re-drawn, the Wisconsin GOP leadership secretly planned and then pushed through a new set of electoral districts that was highly tailored to maximize all advantages Republicans could have in the state.
For example, one city in Wisconsin that had previously been a Democratic stronghold was split between two districts and combined with republican suburbs in such a way that Republicans held a strong lead in both new districts. Between 2008 and 2012, this district swung from being +20% for Obama to +8% for Romney. Gerrymandering can work because by drawing the lines in such a way that one party's votes are wasted more, such as by being in overwhelmingly one-sided districts in their favor or in close districts not in their favor, does end up having a big effect on outcome.
For example, the state of Wisconsin has swing back to leaning democrat, but despite having only 48% of the popular vote statewide, the republicans won 61% of seats in the state legislature last year. That's a 13% efficiency gap, and it all stems from this alleged gerrymandering. Other states beyond Wisconsin have had similar issues crop up, including in favor of Democrats, but none have reached this level of efficiency gap between popular vote and actual results. So this appears to be the perfect fact pattern to see if the Supreme Court will step in.
The last time this issue came up at the Supreme Court was 2004, and the decision was 5-4 declining to consider a gerrymandering claim. Four conservative justices deemed this outside the scope of courts, as a purely legislative matter, while Justice Kennedy was a fifth justice who wrote a concurring opinion noting that actual standards or a test would need to be developed for him to be comfortable with weighing in on such an issue. With Kennedy still being the swing vote on today's court, the plaintiffs are trying to create a fact pattern and a test based on the efficiency gap numbers and the actual intent of the legislature making the gerrymandering to address his concerns from 2004 regarding no clear test for what is constitutional and what is not.
The bottom line is, this will be a fascinating case, as it pits the conservative tendencies of Kennedy and other similar justices to say out of realms courts do not normally belong in, with the realities of legislatures going out of control and effectively stacking the deck against a majority of voters in a state like Wisconsin. If the Supreme Court does not act on this case, gerrymandering based on political partisanship is something that may never go away in some states. We will keep you apprised as the case develops further.
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Friday, September 29, 2017
Friday, September 22, 2017
Legal Geek No. 115: A Marriage between Tribal Sovereign Immunity and Pharma Patents
Welcome back to Legal Geek. This week, we briefly discuss the Stranger Things Cease & Desist letter story also covered on the main show, and then dive into an ever stranger thing: a marriage between pharmaceutical patents and tribal sovereign immunity.
https://archive.org/details/LegalGeekEp115
As discussed earlier, lawyers for Netflix earned a lot of positive press in sending a nice version of a Cease and Desist letter to a temporary pop-up bar that used the IP of the show Stranger Things without authorization or license. While it's not always appropriate to take a softer approach and have fun with in-jokes in this setting, dealing with fans of a brand is a tricky situation as we've covered before on this segment, and this approach shows great legal and PR savvy on the part of Netflix. Legal Geek approves and welcomes any other nerd IP company who needs a C&D written with in jokes to come contact me.
Now, on to our main course this week, which is also a bit of legal ingenuity. Pharmaceutical company Allergan, who makes the Restasis eyedrops that generate $1.5 billion dollars
per year, hit the legal newswaves in a big way this week as they defend from claims that their patents covering these eyedrops are invalid. Patents can be challenged in federal court lawsuits as well as in post grant review proceedings at the Patent Trial and Appeal Board of the Patent Office. However, both of these are federal bodies, and that brings us to the interesting legal theory Allergan is now employing.
Just like how states have sovereign immunity from federal lawsuits under the constitution, many Native American tribes have sovereign immunity from similar federal actions. Thus, Allergan has recently paid a New York tribe to transfer patents covering the eyedrops to the tribe and then implicitly license the rights back to make the eyedrop medication. The tribe, as the rightful owner of these patents being challenged, is now claiming that these challenges in the Patent Office and federal court should be dismissed because they have tribal sovereign immunity from such federal actions.
The legal theory of applying tribal immunity appears to be sound, as the same theory has worked to protect State University owned patents from similar reviews and challenges. But is this a sham transaction that opens a massive end around for companies to avoid challenges to their patents, or a legitimate legal and business arrangement? That question has opened some great public debate this week.
On one hand, the tribes who take advantage of this situation should be commended for finding ways beyond things like casinos to generate revenue and support their members. However, it could risk the legitimacy of applying tribal sovereign immunity in this and other contexts, should the courts or Congress deem it an improper abuse of the power. The patent world will be watching closely as this progresses to briefing and argument in the coming weeks, as if Allergan is successful, a whole new world of business opportunities will open up to the recognized tribes of the U.S.
The Bottom Line is, never doubt the ability of lawyers to come up with some interesting loophole or novel legal strategy, especially when billions of dollars are at stake. While it's certainly not great for the patent system if this is a valid workaround, it makes a great story and some money for Native American tribes who have had it rough, in some parts of the country. Now excuse me while I dial up my local tribe to set up a mutually beneficial business arrangement...
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp115
As discussed earlier, lawyers for Netflix earned a lot of positive press in sending a nice version of a Cease and Desist letter to a temporary pop-up bar that used the IP of the show Stranger Things without authorization or license. While it's not always appropriate to take a softer approach and have fun with in-jokes in this setting, dealing with fans of a brand is a tricky situation as we've covered before on this segment, and this approach shows great legal and PR savvy on the part of Netflix. Legal Geek approves and welcomes any other nerd IP company who needs a C&D written with in jokes to come contact me.
Now, on to our main course this week, which is also a bit of legal ingenuity. Pharmaceutical company Allergan, who makes the Restasis eyedrops that generate $1.5 billion dollars
per year, hit the legal newswaves in a big way this week as they defend from claims that their patents covering these eyedrops are invalid. Patents can be challenged in federal court lawsuits as well as in post grant review proceedings at the Patent Trial and Appeal Board of the Patent Office. However, both of these are federal bodies, and that brings us to the interesting legal theory Allergan is now employing.
Just like how states have sovereign immunity from federal lawsuits under the constitution, many Native American tribes have sovereign immunity from similar federal actions. Thus, Allergan has recently paid a New York tribe to transfer patents covering the eyedrops to the tribe and then implicitly license the rights back to make the eyedrop medication. The tribe, as the rightful owner of these patents being challenged, is now claiming that these challenges in the Patent Office and federal court should be dismissed because they have tribal sovereign immunity from such federal actions.
The legal theory of applying tribal immunity appears to be sound, as the same theory has worked to protect State University owned patents from similar reviews and challenges. But is this a sham transaction that opens a massive end around for companies to avoid challenges to their patents, or a legitimate legal and business arrangement? That question has opened some great public debate this week.
On one hand, the tribes who take advantage of this situation should be commended for finding ways beyond things like casinos to generate revenue and support their members. However, it could risk the legitimacy of applying tribal sovereign immunity in this and other contexts, should the courts or Congress deem it an improper abuse of the power. The patent world will be watching closely as this progresses to briefing and argument in the coming weeks, as if Allergan is successful, a whole new world of business opportunities will open up to the recognized tribes of the U.S.
The Bottom Line is, never doubt the ability of lawyers to come up with some interesting loophole or novel legal strategy, especially when billions of dollars are at stake. While it's certainly not great for the patent system if this is a valid workaround, it makes a great story and some money for Native American tribes who have had it rough, in some parts of the country. Now excuse me while I dial up my local tribe to set up a mutually beneficial business arrangement...
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Friday, September 15, 2017
Legal Geek No. 114: Rubik's Cube continues IP Enforcement
Welcome back to Legal Geek. This week, we review a recent lawsuit filed by the makers of the iconic Rubik's Cube against competitors, as it reveals how IP protection can extend for many decades in some contexts.
https://archive.org/details/LegalGeekEp114
A couple weeks ago, Rubik's Brand Limited, the company behind current sales and marketing of the Rubik's Cube puzzle, sued big companies Duncan Toys and Toys R Us in federal court in New York for a series of claims related to alleged knockoff cube puzzles made and sold by the latter. These claims include trademark infringement, false designation of origin, trademark dilution, and unfair business practice under state laws.
There are some differences between the products. While the traditional Rubik's Cube has black background behind the facets and generally square facet corners, the competitor design has white background and rounded edge facets. The competitor design sells for a cheaper price as well according to Toys R Us's website. But in all other ways, the 3 by 3 block puzzles are functionally the same. And those changes, according to Rubik's Brand, are not sufficient to avoid infringement of the intellectual property still pending on the original Rubik's Cube.
You may be asking yourself, how could a functional puzzle like the Rubik's Cube still be covered with it being widely available since the 1980s? This illustrates the difference between patent protection and trademark or design mark protection. The patents in the U.S. and elsewhere on the Rubik's Cube expired in 2000, so from a patent perspective on the general mechanics of a rotating face, cube-like puzzle, this puzzle is in the public domain.
However, companies can also bolster or make fallback protection on products like this by filing trademark applications. Trademarks can be filed on product names, as you know, but design marks are also possible if the product appearance itself is sufficiently distinctive to identify to a consumer the source of the goods. Logos are trademarked as a design mark, for example.
Rubik's secured two U.S. design marks that cover a black cube having nine color patches on each of its faces with the patches having the colors red, white, blue, green, yellow and orange. Note that the design includes color identifying features in this context rather than the general mechanics of the cube puzzle, as that would be what patent covers. As long as Rubik's continues to use that design by selling in commerce or licensing, these trademark rights can be maintained indefinitely. So while this is narrower coverage than patent claims, it continues on and creates the basis for lawsuits like this one.
So, how does this one come out? While I'm no expert with respect to New York business practice laws, the design mark infringement case has some merit. Even though the knockoff is a white cube instead of a black cube, the colors chosen for the facets are the same six colors, and one could argue that this is the core essence of the design mark. It probably comes down to survey evidence on whether consumers are likely to be confused about the Duncan version being authorized or from Rubik's, and that's at least plausible. I personally would feel more confident in Duncan's chances had it changed one or two of the facet colors on the competitor puzzle as well, but that's not what happened.
The Bottom Line is, just because a patent expires and puts a product in the public domain, that does not mean the creator has lost all potential rights. It is wise to check for and design around later patent filings on further developments as well as any trademark and copyright registrations, before bringing a product to market. Otherwise, you could be stuck in a Rubik's Cube of legalese and court orders!
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp114
A couple weeks ago, Rubik's Brand Limited, the company behind current sales and marketing of the Rubik's Cube puzzle, sued big companies Duncan Toys and Toys R Us in federal court in New York for a series of claims related to alleged knockoff cube puzzles made and sold by the latter. These claims include trademark infringement, false designation of origin, trademark dilution, and unfair business practice under state laws.
There are some differences between the products. While the traditional Rubik's Cube has black background behind the facets and generally square facet corners, the competitor design has white background and rounded edge facets. The competitor design sells for a cheaper price as well according to Toys R Us's website. But in all other ways, the 3 by 3 block puzzles are functionally the same. And those changes, according to Rubik's Brand, are not sufficient to avoid infringement of the intellectual property still pending on the original Rubik's Cube.
You may be asking yourself, how could a functional puzzle like the Rubik's Cube still be covered with it being widely available since the 1980s? This illustrates the difference between patent protection and trademark or design mark protection. The patents in the U.S. and elsewhere on the Rubik's Cube expired in 2000, so from a patent perspective on the general mechanics of a rotating face, cube-like puzzle, this puzzle is in the public domain.
However, companies can also bolster or make fallback protection on products like this by filing trademark applications. Trademarks can be filed on product names, as you know, but design marks are also possible if the product appearance itself is sufficiently distinctive to identify to a consumer the source of the goods. Logos are trademarked as a design mark, for example.
Rubik's secured two U.S. design marks that cover a black cube having nine color patches on each of its faces with the patches having the colors red, white, blue, green, yellow and orange. Note that the design includes color identifying features in this context rather than the general mechanics of the cube puzzle, as that would be what patent covers. As long as Rubik's continues to use that design by selling in commerce or licensing, these trademark rights can be maintained indefinitely. So while this is narrower coverage than patent claims, it continues on and creates the basis for lawsuits like this one.
So, how does this one come out? While I'm no expert with respect to New York business practice laws, the design mark infringement case has some merit. Even though the knockoff is a white cube instead of a black cube, the colors chosen for the facets are the same six colors, and one could argue that this is the core essence of the design mark. It probably comes down to survey evidence on whether consumers are likely to be confused about the Duncan version being authorized or from Rubik's, and that's at least plausible. I personally would feel more confident in Duncan's chances had it changed one or two of the facet colors on the competitor puzzle as well, but that's not what happened.
The Bottom Line is, just because a patent expires and puts a product in the public domain, that does not mean the creator has lost all potential rights. It is wise to check for and design around later patent filings on further developments as well as any trademark and copyright registrations, before bringing a product to market. Otherwise, you could be stuck in a Rubik's Cube of legalese and court orders!
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, September 7, 2017
Legal Geek No. 113: Breaking Down Nintendo's 10M Patent Infringement Loss
Welcome back to Legal Geek. This week, we take a deep dive into the patent that Nintendo is accused of infringing in a Texas case, in only the way a patent attorney can do.
https://archive.org/details/LegalGeekEp113
https://archive.org/details/LegalGeekEp113
A Texas jury found last week that the Wii Remote used with Nintendo's Wii and Wii U consoles infringed a patent owned by iLife Technologies. While the $10 Million dollar verdict will certainly be fought further in summary judgement and appeals courts, and thus is not a final decision, it is a significant potential blow for one of our favorite game companies.
In patent world, inventions can be claimed broadly sometimes so as to cover future uses and expansions of those technologies. That is precisely what happened here.
iLife Technologies developed motion-sensing accelerometer technologies to advance their commercial products, which both monitor infants to help prevent sudden infant death syndrome, and monitor elderly adults for falls that require medical attention. iLife obtained 6 U.S. patents on innovations in this field which were then used as the basis of this lawsuit. Nintendo challenged the validity of all these patents in post grant review proceedings, and that knocked out all but one of the patents, which is what Nintendo has now been deemed to infringe.
U.S. Patent No. 6,864,796 is that patent, and it covers a system within a communications device and method of evaluating movement of a body relative to the surrounding environment. The broadest system claim requires only a sensor associable with the body, a processor that processes dynamic and static accelerative phenomena detected by the sensor to determine whether a body movement is within an environmental tolerance, and communicating tolerance indicia to an outside device in response to the determination.
Claim language is a special kind of legalese, so what does that claim mean, in English? In short, it covers any system that senses movements using accelerometers and then determines and communicates whether those movements are large enough to indicate a specific type of movement beyond just environmental noise. In other words, what a Wii Remote does when it detects intentional movements and communicates them to a console to interact with video game software.
When the claims were interpreted and construed during the lawsuit, the broad ordinary meanings of these terms were adopted by the court, rather than Nintendo's attempts to read the claims more narrowly onto fall detection devices only. Certainly the narrower patent claims on the detected movements being body falls and the like are not what Nintendo Wii systems do, but those broader claims are written to cover things like Wii Remotes, even though that's outside iLife's normal commercial products and markets. And if you can prove novelty and non-obviousness over prior art inventions for the broad invention, the patent will cover future devices like how the Wii Remote is likely covered here.
With Nintendo losing on claim interpretation, the most likely path to reversing the verdict would be to show clear error in that interpretation, or show that the patent is invalid and should not have been granted. As the '796 Patent has already survived post grant review, the chances look grim for Nintendo to avoid this verdict.
The Bottom Line is, in technology fields it is difficult to beat everyone to the patent office to file on innovative ideas, especially in view of the ability to broadly claim. By filing early and often with good patent counsel, iLife Technologies can protect their own life saving devices from knockoffs, but also create revenue streams from other companies who use the same technology in their own fields. Needless to say, a $10 Million dollar verdict would pay off that investment and then some. It's also why clearance searching for new products is so vital to avoid mistakes like this, which Nintendo can probably afford but others may not be able to afford.
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp113
https://archive.org/details/LegalGeekEp113
A Texas jury found last week that the Wii Remote used with Nintendo's Wii and Wii U consoles infringed a patent owned by iLife Technologies. While the $10 Million dollar verdict will certainly be fought further in summary judgement and appeals courts, and thus is not a final decision, it is a significant potential blow for one of our favorite game companies.
In patent world, inventions can be claimed broadly sometimes so as to cover future uses and expansions of those technologies. That is precisely what happened here.
iLife Technologies developed motion-sensing accelerometer technologies to advance their commercial products, which both monitor infants to help prevent sudden infant death syndrome, and monitor elderly adults for falls that require medical attention. iLife obtained 6 U.S. patents on innovations in this field which were then used as the basis of this lawsuit. Nintendo challenged the validity of all these patents in post grant review proceedings, and that knocked out all but one of the patents, which is what Nintendo has now been deemed to infringe.
U.S. Patent No. 6,864,796 is that patent, and it covers a system within a communications device and method of evaluating movement of a body relative to the surrounding environment. The broadest system claim requires only a sensor associable with the body, a processor that processes dynamic and static accelerative phenomena detected by the sensor to determine whether a body movement is within an environmental tolerance, and communicating tolerance indicia to an outside device in response to the determination.
Claim language is a special kind of legalese, so what does that claim mean, in English? In short, it covers any system that senses movements using accelerometers and then determines and communicates whether those movements are large enough to indicate a specific type of movement beyond just environmental noise. In other words, what a Wii Remote does when it detects intentional movements and communicates them to a console to interact with video game software.
When the claims were interpreted and construed during the lawsuit, the broad ordinary meanings of these terms were adopted by the court, rather than Nintendo's attempts to read the claims more narrowly onto fall detection devices only. Certainly the narrower patent claims on the detected movements being body falls and the like are not what Nintendo Wii systems do, but those broader claims are written to cover things like Wii Remotes, even though that's outside iLife's normal commercial products and markets. And if you can prove novelty and non-obviousness over prior art inventions for the broad invention, the patent will cover future devices like how the Wii Remote is likely covered here.
With Nintendo losing on claim interpretation, the most likely path to reversing the verdict would be to show clear error in that interpretation, or show that the patent is invalid and should not have been granted. As the '796 Patent has already survived post grant review, the chances look grim for Nintendo to avoid this verdict.
The Bottom Line is, in technology fields it is difficult to beat everyone to the patent office to file on innovative ideas, especially in view of the ability to broadly claim. By filing early and often with good patent counsel, iLife Technologies can protect their own life saving devices from knockoffs, but also create revenue streams from other companies who use the same technology in their own fields. Needless to say, a $10 Million dollar verdict would pay off that investment and then some. It's also why clearance searching for new products is so vital to avoid mistakes like this, which Nintendo can probably afford but others may not be able to afford.
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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