Contemporary Intellectual Property, Licensing & Information Law

Licensing unrelated to any intellectual property right has been a common practice for generations - since at least the time of the civil war.  But there are some who think of licensing as only appropriate if there are rights to license and that, if the rights do not exist, the contractual license terms must be abrogated.  This is wrong, but a recent case indicates that drafting agreements in this context must be done with care.

Licensing Law Issues
Comments / Questions (0) | Permalink

I hope not, but that is one risk created by the Supreme Court’s decision in the Ebay case and by the actions of some courts who have denied permanent injunctions in successful infringement cases.  But the fact that a permanent injunction does not issue after a judgment of infringement does not mean that the infringer (by losing the case) obtains a right to use the patent owner’s property in the future.  It simply means that the court declined to add the coercive force of an injunction to the statutory right to exclude as to future infringing conduct.

Intellectual Property , Intellectual Property
Comments / Questions (0) | Permalink

No.  At least not according to three judges of the Second Circuit.  And as a result, one company’s valuable market estimates expressed in numerical form were subject to comprehensive misappropriation by a competitor.  But the court allowing this result forgot that numbers can be as expressive as words and sometimes are much more communicative.

Intellectual Property
Comments / Questions (1) | Permalink

The Supreme Court has accepted cert in the LG Electronics case.  The issue involves patent exhaustion doctrine.  This is an opportunity for the Court to affirm the right of a patent (or copyright) property owner to control the terms on which its invention or work is provided to the public – by license or sale.  But unless the rights-owner community pitches in, the Court may get it wrong.

Intellectual Property , Licensing Law Issues , Licensing Law Issues
Comments / Questions (2) | Permalink

U.S. law has long held that non-negotiated, standard-form contracts are fully enforceable unless they smack of both procedural and substantive unconscionability. But the Ninth Circuit has embarked on a new path equating procedural unconscionability to mere use of standard forms without deception, and even though there is no lack of notice, no lack of choice and no other indicia of procedural unconscionability; other courts should reject this path and the Ninth Circuit should retract it.

Licensing Law Issues
Comments / Questions (1) | Permalink

Many industries function under technological standards that shape the technology, the products, and the focus of competition. But standards-setting groups have become competition focuses themselves, such as in the debate about “open document” vs “open xml” as a standard. The standards groups should follow a simple premise: standards-setting organizations should not dictate among competing technologies vying for market dominance.

Intellectual Property
Permalink

The idea that licensed software should be treated the same in law as a refrigerator that has been sold is absurd and has drawn increasing levels of rejection. Now, one state and two additional appellate courts have joined in understanding that software is intangible.

Licensing Law Issues
Comments / Questions (1) | Permalink

The final version of the GPL 3.0 has been released. Third party patent holders should not care unless they themselves make and transfer works containing software licensed under this new license, but if they do, they may risk losing enforcement not only of current, but of future obtained patents.

Licensing Law Issues
Comments / Questions (0) | Permalink

The Ninth Circuit failed to acknowledge the relevance of obvious future markets when it ruled in favor of Google in Perfect 10, Inc. v. Amazon.com, Inc.  In doing so, it effectively awarded to Google and others a market that that rightfully belongs to the copyright owner.

Intellectual Property
Comments / Questions (0) | Permalink