The whole Internet is abuzz today with the news that Instagram, after its acquisition by Facebook, plans to update its Terms of Service to allow it to use photos uploaded to its service in advertising. Despite the widespread admonition that “if you’re not paying for it, you’re the product,” people are upset to think that Instagram will now be using their pictures commercially without asking permission or providing compensation.
I have no idea how this will work, and I’m once again glad that I don’t use Instagram… but I know a lot of people who do, and many of those people are celebrities to some degree.
Here’s what I’m wondering: if Kaley Cuoco uses Instagram to share a photo of her and Melissa Rauch doing something silly, does that mean that Instagram can take that photo and use it to advertise for something silly without compensating them for what becomes a use of their likeness for commercial purposes? I can see that being a pretty serious shitstorm if it happens.
See below the fold for my reasons why.
Basically, this patent could likely be applied against any device with a rudimentary touchscreen interface, and I would venture to guess that most current touchscreen devices are in violation already. Once again, this wouldn’t be a problem for something specific, complicated, and unique, but because the patent covers such basic features, it could be quite a problem for any mobile device maker.
Episode #2498562345 in not understanding how patents work.
You can’t just look at the title, text, and drawings of a patent and decide what it covers. You have to look at the claims. Here’s Claim 1 of this patent:
1. A method, comprising: at a portable multifunction device with a touch screen display:
displaying a portion of an electronic document on the touch screen display, wherein the displayed portion of the electronic document has a vertical position in the electronic document;
displaying a vertical bar on top of the displayed portion of the electronic document, the vertical bar displayed proximate to a vertical edge of the displayed portion of the electronic document, wherein:
the vertical bar has a vertical position on top of the displayed portion of the electronic document that corresponds to the vertical position in the electronic document of the displayed portion of the electronic document; and
the vertical bar is not a scroll bar;
detecting a movement of an object in a direction on the displayed portion of the electronic document;
in response to detecting the movement:
scrolling the electronic document displayed on the touch screen display in the direction of movement of the object so that a new portion of the electronic document is displayed,
moving the vertical bar to a new vertical position such that the new vertical position corresponds to the vertical position in the electronic document of the displayed new portion of the electronic document, and
maintaining the vertical bar proximate to the vertical edge of the displayed portion of the electronic document; and
in response to a predetermined condition being met, ceasing to display the vertical bar while continuing to display the displayed portion of the electronic document,
wherein the displayed portion of the electronic document has a vertical extent that is less than a vertical extent of the electronic document.
In order to infringe this claim, you have to perform every step in this method. So, not only do you need to move the vertical bar when you scroll, it has to be displayed on top of the document, and it has to disappear. I don’t think it’s fair at all to say that this reads on “any device with a rudimentary touchscreen interface.”
Also, the interface has to have a vertical bar on the edge of the display that is not a scroll bar. Wouldn’t most interfaces have scroll bars that are scroll bars?
The take-away here is that you need to look at the claims to decide what a patent covers.
Look carefully at those catcher’s mitts in
tomorrow’stonight’s All-Star Game! Their design was hotly contested in court over 100 years ago, and we have the records in the National Archives at Kansas City.
From 1885 to 1895, over a dozen catcher’s mitts were patented through the U.S. Patent Office. This one was by patented by E.L. Rogers, who had two patents for catcher’s mitts.
This patent was used when Victor Sporting Goods sued Rawlings:In the complaint filed by Victor Sporting Goods, the Rogers brothers claim that Elroy L. Rogers was the “original and first inventor of a new and useful improvement in Catcher’s Gloves.” The complaint also indicates that no other inventor has been in possession of the patent and that the ownership paperwork was filed with the U.S. Patent Office. In addition, Victor Sporting Goods claimed that Rawlings was profiting from the patent by manufacturing gloves using the model created by Rogers.
What did the courts decide? Read the blog post and find out!
The Heart Attack Grill, famous for ridiculously unhealthy food, scantily clad waitresses, and aggressive trademark enforcement, has lost its latest attempt to prevent other restaurants from marketing “heart attack” themed food, despite those restaurants being located in other states in which the Heart Attack Grill has no intention of doing business.
The linked post does a good job of looking at the legal issues, but I loved this quote from the opinion, regarding whether there’s a likelihood of confusion:
Furthermore, there are other differences that separate the marks. HAG and the Deli pitch for vastly different customers. HAG proudly represents (even in its court papers) that its food is unhealthful. It even draws attention to the fact of a customer who had a heart attack while on the premises. Its food is served by scantily clad waitresses dressed like nurses, as part of its overall “medical”—perhaps better cast as “paramedic”—theme. The Deli, by contrast, is a kosher deli which serves kosher food in the style of a traditional Manhattan deli. Its offerings, other than the Instant Heart Attack Sandwich, do not trumpet their unhealthfulness; and its marketing does not remotely resemble that of HAG’s. Further, being a kosher deli, the Deli could not serve sandwiches containing both meat and cheese. This factor thus strongly favors a finding of no confusion.
That’s a pretty good point.
(h/t Likelihood of Confusion)
We’ve found you 19 patents invented by ingenious celebrities - including Catwoman Julie Newmar’s Cheeky Derriere Relief (above), Jamie Lee Curtis’ Diaper Pocket, and Paula Abdul’s Dynamic Mic Stand.
Whoever wrote this smoking pipe patent doesn’t know the first thing about Kurt Vonnegut.
This may not be the most professional use of this blog, but times are desperate! We’re fostering this adorable stray kitten, and need to find him a new home here in Seattle (or thereabouts). He’s 10 weeks old, checked out as healthy at the vet, and had his first round of immunizations. If you’re interested or would like more information, please send me an email at email@example.com.
The USPTO has released proposed rules for establishing status as a “micro entity.” Micro entities receive a 75% reduction in patent application fees, so anyone who can possibly take advantage of this will want to do so.
- To conform with Congressional intent to address the needs of “a group of inventors who are even smaller [than small entities],” the proposed rules provide that only applicants who qualify as a Small Entity can qualify as a Micro Entity and only applications that qualify for Small Entity status can qualify for Micro Entity status.
- The proposed rules interpret § 123 as creating two independent ways to qualify as a Micro Entity: under § 123(a) (small inventors who satisfy income limits) or under § 123(d) (inventors employed by a U.S. institution of higher learning or applications assigned/licensed to a U.S. institution of higher learning).
- The commentary in the Federal Register Notice indicates that if an application names more than one applicant, each applicant must meet the requirements of either § 123(a) or § 123(d). Importantly, the Federal Register Notice states that where there is more than one applicant, the income level requirement in § 123(a)(3) applies to each applicant’s income separately. Similarly, if an applicant assigns or is obligated to assign the invention to more than one assignee, each assignee must meet the Micro Entity requirements (either by meeting the income limit specified in § 123(a)(4), or by being an institution of higher education under § 123(d)).
The proposed rules (and the blog post linked to above) also include details about the mechanisms for establishing this status.
Thinking about these rules a little bit, it seems like there is some odd-sounding advice that could come out of this.
First, the income limit includes someone who “did not, in the calendar year preceding the calendar year in which the applicable fee is being paid, have a gross income, as defined in section 61(a) of the Internal Revenue Code of 1986, exceeding 3 times the median household income for that preceding calendar year.” This makes it seem like there is a sweet spot for people who (1) in a previous calendar year, made less than this threshold, and (2) in the current calendar year, make more than this threshold. These people will be particularly able to pay prosecution costs, and will nevertheless qualify for micro-entity status for at least the initial filing fees.
Second, an applicant can qualify as a micro-entity if “the applicant’s employer, from which the applicant obtains the majority of the applicant’s income, is an institution of higher education.” This seems that it would apply to any employee (administrative staff, facilities personnel, etc.) and not just those in academic or research positions who may have an obligation to assign inventions to the institution as part of their employment. Though many such employees would also qualify under the income provisions, there may be some who could benefit from this provision.
Anyway, food for thought.
You can tell this wasn’t produced by a patent attorney because they use the term “Velcro” instead of “hook-and-loop fastener.” Of course, that’s the only way you can tell, right?
One of the most common questions I receive, dating back to the very beginning of IPWatchdog.com, is whether recipes can be protected by any form of intellectual property. Typically the question presents specifically by a reader asking whether a recipe can be patented, or how once can patent a recipe.
I think this is a great post, because it explains the issues in great detail, but should still be understandable to laypeople. A good read! Also, the analysis is applicable to many different types of subject matter. For example, if your question is whether or not you can patent a board game, the same analysis would apply.