Letter from AmeriKat: Patent reform, pretty things, pancakes and politics

The AmeriKat is having difficulty concentrating, today. She awoke early this morning with her phone vibrating off her bedside table with the first of many text messages, phone calls, and e-mails that would help turn her planned legato day into mainly staccato. She had great plans to write lengthy pieces about the complicated politics of patent reform legislation, the Federal Circuit defining the narrow parameters where the equitable doctrine of patent misuse could be employed as a defence, and other such interesting tails. But every time she put paws to keyboard, a new alert would steal her attention away for hours at a time, never to return to whence it came. So with the AmeriKat's mind on other matters, be it a new kitten shortly entering her family's pack (the AmeriKat may be Aunt AmeriKat at any time), or invitations of exciting travel, she was only able to put together some fun bits 'n bobs from the past week in US IP news. (picture, right- the AmeriKat with her soon to be kitten niece or nephew)

Will the lame-duck session bring the Patent Reform Act 2009 back from the dead? - Last Wednesday, a bi-partisan group of 25 senators wrote a letter to Senate Majority leader Harry Reid (D-Nevada) asking him to bring the amended patent reform bill to the floor for a vote as soon as possible. The merry band of 25 consists of 14 Democrats, 10 Republicans and the now Independent, Senator Joe Lieberman. The group also includes the Patent Reform Act 2009's sponsor, Senator Patrick Leahy (D-Vermont) and chairman of the Senate Judiciary Committee, Senator Jeff Sessions (R-Alabama). After being reported out by the Senate Judiciary Committee in April 2009, the bill was amended last March. The amended bill would authorize the USPTO to adjust patent and trade mark fees and would award patents to the first to file instead of the first to invent. Another welcome provision to those on the receiving end of patent suits would be provisions that required US courts to consider only relevant "methodologies and factors" in determining damages and to only multiply damages awards after the point that the infringement became wilful. With a quarter of the senate signing the letter, this may indicate a concerted effort, between Democrats and Republicans alike, to make this bill happen. But with other bills concerning the economy and tax taking the front row of the Senate's attention it is unlikely that a bill about patent reform will take much notice until after the upcoming November elections. Philip Johnson, chief IP counsel for Johnson & Johnson stated that the lame-duck session after the November elections would be an ideal time for this bill to pass because it is a "bipartisan bill that's directed to helping the economy." So, perhaps the lame-duck session will bring a Patent Reform Act to our Thanksgiving turkey tables, after all. For more information see this report in the National Law Journal and the Wall Street Journal.

Tiffany suffers another blow from Judge Sullivan in fight against eBay - Last week Judge Richard Sullivan threw out Tiffany's last remaining claim against eBay following the 2nd Circuit Appeals Court ruling in favor of eBay in the trade mark infringement claim last April (see previous AmeriKat reports here and here). The remaining false advertising claim under section 43(a) of the Lanham Act saw Tiffany argue that because eBay advertised the sale of Tiffany goods on its website and that many of those goods were counterfeit, eBay should be liable for false advertising. However, Tiffany was unable to establish that eBay intentionally set out to deceive the public or was of such an "egregious nature sufficient to create a presumption that consumers were being deceived." As predicted by the AmeriKat, Judge Sullivan held that Tiffany was unable to adduce evidence that demonstrated that eBay's ads mislead customers or implied that the Tiffany products sold on their website were all genuine. Michelle Fang, eBay's associate general counsel, stated that the ruling was "an unequivocal validation of eBay's business practices." For more information see these articles in Reuters and Wall Street Journal.

Would you like a side of "prayer" with your pancakes? - Readers of the AmeriKat know that nothing makes her happier than food related IP stories, and this one is no different. The International House of Pancakes, better known as IHOP filed a trade mark infringement lawsuit earlier in the month against a church group called the International House of Prayer who also refer to themselves as IHOP. For those non-American readers, IHOP is a nationwide pancake chain, frequented by senior citizens, hungover university students, and a few in between. It would not be an exaggeration that most Americans know of and have probably been to an IHOP. According to IHOP's website they also serve 700 million pancakes per year. The church has yet to respond to the court filings. Given the strength of the pancake house's reputation, the AmeriKat thinks that only an act of God will be able to help the church group in this trade mark battle. For more information, see these articles in CNN and Time.

Thank you, Fox News, you make my job easy - As if there was ever any question to whom Fox News paid their allegiance, i.e. the Republican party, this latest piece of news seems to help support that view. Missouri Democrat Robin Carnahan, who is running for the US Senate, is being sued by Fox News Network (another Murdoch spawn), for copyright infringement resulting from one of her TV ads. Carnahan's TV ads include clips form a January 2006 interview by Fox News journalist Christopher Wallace with Carnahan's opponent in the Senate race, Rep. Roy Blunt. The AmeriKat believes the use would fall under fair use, but with the Fox News network's conservative slant, it is unsurprising they had come down hard on a Democrat's use of the clip. Not particularly ground-breaking in the field of IP, but with the November elections around the corner, candidates' use of IP will be closely monitored for political strategy. This news item also raises the issue whether during an election, should IP rights really be enforced so stringently as to stifle free speech and prevent information getting out to the electorate? For more info on this news story see these reports in the AP, The Hollywood Reporter and The Washington Post.