Before This Guest Stays Too Long, A Final Post And A Bit Of Gratitude

No one likes to wear out their welcome, and so this Kat shall depart from this incredible herd and become a mere reader beginning tomorrow.  This Kat has been sadly unable to produce full posts on a number of events in the U.S. IP world over the past week, but she has been keeping up with them to the best of her ability, and wishes to leave you with as complete a picture of the latest important developments on this side of the Atlantic.  But first and most importantly, she wishes to thank you all most fur-vently (yes, she just did that) for your loyalty and engagement with her posts over the past six months, particularly on such "pressing" matters as how Columbians v Germans kiss their hellos at business conferences (yes, she just did it again).  

So enough chatter.  We are here to do a job, one last time.

Big Brother's Stones Miss the Glass House:  The network channel CBS had been scrambling to put a stop to its rival ABC from launching its new reality series, "Glass House," which CBS believed violated copyright and trade secrets of its show "Big Brother."  Both reality shows involve contestants living in a large house, following rules and competing in games until one contestant remains standing and wins a cash prize.  Glass House inexplicably chose to begin the show with 14 contestants, the same number as in Big Brother, but even so, and even though producers of Big Brother had defected to ABC to work on the competing show, a judge refused to find infringing similarity, saying the show wasn't a rip-off of  Unfortunately for CBS, U.S. District Judge Gary A. Feess said the differences between the two reality shows are enough to demonstrate that ABC didn’t flat-out rip off the CBS franchise, largely because the audience has a role to play in deciding the fate of Glass House contestants.  “The audience involvement playing a constant role is very likely to induce quite different behavior than one would see on Big Brother,” said the judge after saying he was not inclined to grant the preliminary injunction.  The premier went on as planned, to dismal ratings, and the real question at the end of the day remains, "Who watches this stuff anyway?"
Few Risks Too Big:  The Federal Circuit rewrote the standard for finding that a defendant in a patent infringement case acted willfully by holding that it is up to a judge, not a jury, to decide whether a defendant ignored an objectively foreseeable risk that its actions would constitute patent infringement.  The conventional wisdom seems to be that judges may perceive a finding of willfulness to be reversible error, and no one wants to get reversed.  The 2007 Seagate case established a two-prong test for willfulness: first there must be a finding of an objectively high likelihood of infringement, and second there must be proof of subjective knowledge of this risk by the defendant.  The second prong of the test is still to be decided be a jury.  This may result in having to have a separate proceeding on the objective risk before the facts are presented to a jury, making some patent cases just that much more complicated.

Preemption Killed by Idea Theft Cases:  The Second Circuit has effectively cut the life support from claims of preemption in breach of contract and copyright cases.  Cases based on a claim that an idea was presented to a television or film studio and then stolen by the studio without any payment to the plaintiff are frequent.  Defending studios would often argue that the claims of "breach of contract" were pre-empted by the Copyright Act, under which mere ideas are not protectible.  The Ninth Circuit had killed this defense last year.   In the case at bar, the plaintiff was Hayden Christensen, the actor who played Darth Vader (badly) in the last two (pretty bad) Star Wars prequels.   This Kat can not imagine that the plaintiff's identity was in any way relevant, but in any case, preemption claims are no longer available in either of the two major copyright courts in the country.

Of course, at least in the public discourse, all of this pales in comparison to the attention being paid to Thursday's Supreme Court ruling upholding President Obama's Affordable Care Act and the provision requiring nearly every American to purchase health insurance.  This Kat suspects that our European readers are bemused by the health care debate in this country, and probably find particularly funny the threats from the "Tea Party" mandate haters that now that "Obamacare" has been upheld, they shall all move to Canada, a country which has enjoyed socialist medicine for decades.   Perhaps some of you can suggest a nice villa resort in France for them.  

And so here ends this Kat's temporary inclusion among this esteemed group of bloggers.  She has been most honored to be a part of this since January of this year, and truly hopes that you will follow her back to her site at where she and her colleagues will continue to post.  Perhaps even in the first person.

Au revoir, auf Wiedersehen, Tschüs, ciao, adios, and bye y'all!
Before This Guest Stays Too Long, A Final Post And A Bit Of Gratitude Before This Guest Stays Too Long, A Final Post And A Bit Of Gratitude Reviewed by Tara Aaron on Saturday, June 30, 2012 Rating: 5


  1. I'm sorry to hear you are leaving the Kattery. Thanks for all your posts here, and good luck with the new blog which I will follow with interest.

  2. Thank you for your continued support Andy!


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