Letter from AmeriKat: No CAFC hearing for Samsung, Apple top patent litigation target & TPP's copyright conundrum

The AmeriKat cherishes the perspective that
 an airline journey can provide,  if not the
static-y fur caused by synthetic seat fabric
(photo over Boston on her recent flight home)

After almost 20 years of transatlantic commuting, one would think the AmeriKat would get used to jet lag and place lag.  Not so.  Although the physicality of jet lag can generally be accommodated by a couple late mornings and nights and skinny chai lattes, it is the place lag that still mystifies her.  Despite often experiencing the phenomena, the AmeriKat did not have a name for it until she saw the term in an incredible book entitled Skyfaring:  A Journey with a Pilot, by Mark Vanhoenacker, a British Airways pilot who sings the wonder of air travel.  The transient nature of air travel can be startling; how in a relatively fleeting moment the AmeriKat will be drying the London rain off her shoes only to then step onto the magnetic and scarred Manhattan streets.  As we no longer journey on the back of a covered wagon watching as landscapes slowly change from the plains, to the high mountain desert to ocean dunes, our acclimatization is never gradual.  This is why a sudden change in people or places (or change that appears sudden) can be so disarming.  The pace at which intellectual property law moves can feel equally alarming.  However, the stories from the US this week demonstrate that irrespective of the perceived pace, the landscape of issues are all too familiar.

How much should three protected
features in a highly complex
smartphone really be worth?  

CAFC rejects Samsung's Apple damages review request:  A few weeks ago, the AmeriKat alerted readers to Samsung's request for an en banc hearing to reverse the $550 million damages award that it was ordered to pay to Apple in the long-running design patent dispute.  Along the way, Samsung got a little help from its friends at Facebook, Google, HP and Dell who wrote in to say that the method by which the figure was arrived at would, if unchallenged, lead to "absurd results"on the basis that three design patents could not encompass the entire value of a smartphone which has hundreds (if not thousands) of IP-protected features.  Unfortunately, no amount of friendly help could assist Samsung's request as last Thursday the US Court of Appeals for the Federal Circuit declared that they would not reconsider the decision.  Samsung can now petition the US Supreme Court to review the case.  There is nothing the AmeriKat would like better than seeing the US Supreme Court tackle a patent damages case on this issue that has vexed IP lawyers for years. Purrrrr purrrrr......

US patent litigation takes a bite
out of Apple (or the AmeriKat's
apple)

Apple takes the brunt of 2015 patent infringement suits:  As reported back in July, 2015 is set to be a blockbuster year for the number of US patent actions that have been filed beating 2013's record of 6,106 actions.  So who has been subject to all of these filings?  Data compiled by Statista shows that Apple took the crown for the most number of lawsuits filed against it in the first half of 2015 with an eye-watering 35 ["Somewhere, some external lawyer is doing a little jig", muses Merpel].  Samsung and HP were not far behind with 33 and 32 patent law suits, respectively.  True to form, Actavis was the only life sciences company to make the poll with 25 patent actions made against it (so far).  Amazon completed the top 5 with 24 actions.  Congress is now on vacation so there will be no progress on the patent reform legislation that some hope will curtail the number of patent actions.  H.R. 9 is awaiting debate on the House floor which will not happen until our beloved legislators return in September, at the earliest (if they haven't stuffed themselves to the point of coma during the Iowa State Fair).  The Senate's legislation - S.1137 - will also be up for discussion in September, including proposed higher bars for instituting inter partes reviews especially in relation to life science patents.  This has been the topic of concerted lobbying efforts in recent months, especially in light of Kyle Bass and his Coalition for Affordable Drugs phenomena (read more on this issue here and here and on which the AmeriKat hopes that the Katonomist will chime in).

No calm harbor waters for the TPP negotiations as
copyright issues now enter the fray.  

TPP issues again, but this time its copyright:  The AmeriKat's last few letters have summarized the feeding frenzy on the Trans-Pacific Partnership (TPP) negotiations which have primarily dealt with the issue of protection afforded to innovative life sciences drugs.  However, there is another issue that is causing more criticism - copyright terms.  The Electronic Frontier Foundation published this article last week explained that the MPAA and the RIAA have been lobbying the Office of the US Trade Representative to include provisions into the TPP (see copy of leaked draft here) that, although duplicate the current copyright terms under US law, are considered to be too long to be inflicted on others.  Such provisions, EFF argues, would further bind the US into these terms and make it difficult for copyright terms to be shortened in the future (on which the AmeriKat is not holding her breath).  In its post, EFF declares that:

"The USTR is proposing that the length of copyright restriction be the lifetime of the creator plus 70 years after their death. In the case of works with corporate authors, the term extends to 95 years from the first publication, or if not published within 25 years of its creation, 120 years from then. These are the lengths that we already have in the United States, but they are already too long. Even the Register of Copyrights Maria Pallante herself has called for terms on most works to be shortened.
duration of copyright protection."

But copyright term is not the only issue.  According to this report in The Register, the public domain is also getting attention, as well as criminalizing copyright infringement and notice and take down procedures. Reportedly some countries are advancing an expanded form of the public domain to counterbalance the proposed expanded IP rights, but push back is coming from the US.  Canada is also said to be concerned about the measures which would mean another round of copyright reform.  University of Ottawa law professor and blogger, Michael Geist, told CBC that:

"If things don't go Canada's way - and on a lot of issues Canada is playing defence, is in the minority - then its going to require a major overhaul of our copyright law.  

Especially, Geist noted, on the issue of blocking orders which is "something the [Canadian] government had consistently rejected throughout the copyright reform process."  If there is one thing that will promise to threaten a trade agreement it is when copyright activists (on either side) get into the mix.  Choppy waters head for the TPP.