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The United States Patent Office sent a November 2, 2016, Memorandum to the Patent Examining Corps discussing two recent Federal Circuit decisions and the rules on patent eligibility for computer software. The decisions are McRO, Inc. v. Bandai Namco Games America Inc. and BASCOM Global Internet Services v. AT&T mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016). McRO is significant because it reminds patent examiners when examining a patent claim, that they must not be overgeneralize or simplify it into its “gist, and that an improvement in computer technology is not limited to improving the operation of a computer. BASCOM is significant because the considerations of elements showing an inventive feature should look for additional elements in combination as well as individually. It also notes that the absence of preemption may indicate the claim is not directed to a judicial exception.

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Indianapolis, Indiana – A trademark lawyer for Defendants A3 Media, LLC; Collective Publishing, LLC; Yelena Lucas and Neil Lucas, all of Fishers, Indiana, and Janelle Morrison of Zionsville, Indiana removed a federal trademark lawsuit to the Southern District of Indiana. The litigation was initially filed by franchise law attorneys in Hamilton County Superior Court under Cause No. 29D03-1609-PL-008343 on behalf of Plaintiffs Britt Interactive, LLC and TownePost Network, Inc. of Fishers, Indiana. Tom and Jeanne Britt have been added as third party Defendants.

Britt Interactive runs a monthly newsletter and magazine. That entity, and later its successor TownePost Network, licensed its “techniques, intellectual property, and system” to others in the Indianapolis area for the purpose of producing “monthly hyper-local publications” in nearby territories. TownePost later ceased offering such licenses and moved to a franchise model.

In December 2012, Britt Interactive entered into a licensing agreement with Defendant A3 Media for the geographical area of Zionsville, Indiana. Plaintiffs contend, however, that A3 Media and related Defendants abandoned that license and, instead, began to engage with Plaintiffs’ advertising customers in a manner that confused the customers and interfered with Plaintiffs’ business relationships.

Plaintiffs’ complaint lists the following causes of action:

• Count I: Tortious Interference with Contracts
• Count II: Tortious Interference with Business Relationships
• Count III: Conversion
• Count IV: Trademark Infringement under Section 32(A) of the Lanham Act, 15 U.S.C. § 1114(A)
• Count V: Trademark Infringement, False Designation of Origin and Unfair Competition under Section 43(A) of the Lanham Act, 15 U.S.C. § 1125(A)
• Count VI: Violations of Indiana Trademark Act

• Count VII: Breach of Contract

Plaintiffs asked the Hamilton County Court for injunctive relief, damages, costs and attorneys’ fees. Defendants counterclaimed against Plaintiff and, invoking federal jurisdiction on the basis of the federal questions raised in the complaint, removed the lawsuit to the Southern District of Indiana.

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The Supreme Court on October 11, 2016, heard oral argument on whether an award of profits for design patent infringement of Apple’s iPhone should be limited to those profits attributable components bearing the claimed design features or should include profits from the entire iPhone. Samsung Electronics Co. Ltd. v. Apple, Inc., U.S., No. 15-777, oral argument 10/11/2016. The design patent statute provides for liability “to the extent of the [infringer’s] total profit” for applying the patented design “to any article of manufacture.” The parties agreed that the “article of manufacture” may be a component rather than the entire product, and agreed with the government’s proposed factors for determining the profit attributable to the infringing component. Apple maintained, however, that there is no basis for overturning the jury award of nearly $400 million since in this case Samsung never identified any article of manufacture other than the phones themselves.

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Indianapolis, Indiana – An Indiana patent attorney for VOXX International Corp. of Indianapolis, Indiana filed a lawsuit in the Southern District of Indiana alleging patent infringement.

Plaintiff VOXX manufactures and supplies consumer electronics in the automotive, audio and consumer-accessory industry, including developing products sold under the Klipsch® and RCA® brands.

At issue in this Indiana litigation are patents that relate to overhead video units that can be mounted to the ceilings of vehicles as well as video units that are located in the headrests of vehicles. These patents have been registered with the U.S. Patent and Trademark Office as Patent Nos. 7,653,345; 8,255,958; 9,114,745 and 9,348,368.

VOXX contends that Defendant Johnson Safety, Inc. of San Bernardino, California has infringed these patents, asserting both direct and indirect infringement.

In a complaint filed by an Indiana patent lawyer, VOXX asks the federal court for a judgment of infringement of the four patents-in-suit, injunctive relief, damages, attorneys’ fees and costs of the litigation.

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On April 26, 2016 United States District Court for the Northern District of Indiana announced that Michael G. Gotsch, Sr. will replace retiring judge Christopher A. Nuechterlein.

Chief Judge Philip P. Simon said “Gotsch has served as a Judge for the State of Indiana for nearly 12 years and has demonstrated the demeanor, intellect, and practical approach to problem solving that will make him an outstanding magistrate judge.”

A magistrate’s duties include presiding over preliminary proceedings in intellectual property and other cases. Judges may request that a magistrate judge handle pre-trial motions and any settlement attempts.

As reported by Jeremy Malcolm, Senior Global Policy Analyst for the Electronic Frontier Foundation, when the test of the Trans-Pacific Partnership (TPP) was released in November 2015, it included provisions dictating the kinds of penalties that should be available in cases of copyright infringement. Amongst those provisions, the following footnote allowed countries some flexibility in applying criminal procedures and penalties to cases of willful copyright infringement on a commercial scale:

With regard to copyright and related rights piracy provided for under paragraph 1,a Party may limit application of this paragraph to the cases in which there is an impact on the right holder’s ability to exploit the work, performance or phonogram in the market.

Following the footnote back to its source, it is apparent that the reference to limiting “the application of this paragraph” is to a more specific list of criminal procedures and penalties that the parties are required to make available in such cases. Paraphrased, these are:

Patent protection for Bitcoin and other blockchain based crypto currencies is a growing issue, as discussed in the February 1, 2016 article by American Banker Magazine, “Crypto Colonizing: Bank of America’s Blockchain-Patent Strategy.”

On being asked my opinion concerning Bank of America’s blockchain patent push, I responded, “”The scope [of the patent application] would have to be limited to the specific new feature that they add,” said Paul Overhauser, managing partner at Overhauser Law Offices, a firm that specializes in intellectual property cases. “They could not get patent protection so broad as to give them any patent rights to the original source code idea of having a blockchain.”

To read the full article, click here.

Hammond, Indiana – Plaintiff Stanley Pagorek of Dyer, Indiana filed an intellectual property lawsuit in the Northern District of Indiana alleging that Vizio, Inc. of Irvine, California and Cognitive Media Networks, Inc. of San Francisco, California monitor, track and report viewing habits and information about devices attached to home networks for profit. Pagorek seeks class-action status for this Indiana litigation.

Defendant Vizio produces and sells internet-capable televisions. It also offers audio and entertainment products, including sound bars, tablets, DVD players and Blu-ray players. Vizio has a controlling stake in Defendant Cognitive, an advertising company.

Defendants are accused of surreptitiously including tracking software on more than 10 million Vizio high-definition, internet-connected televisions (sometimes known as “smart TVs”). The functionality of the software includes Cognitive’s content-recognition capabilities.

According to the lawsuit, filed by intellectual property lawyers for Pagorek and the putative class, the tracking software is activated by default, most customers would not be made aware of it in the process of setting up their TVs and, for those who were, disabling the software is less than intuitive. The software enables Vizio to monitor and identify the viewing habits of those smart TV customers. The complaint also indicates that the analysis done by the tracking software enables Vizio to infer with reasonable certainty which person is watching what programming.

That information is then provided to third-party advertisers and content providers. Those third parties are then able to customize the advertising and other content displayed to the smart TV customers not only on the Vizio smart TV, but also on any other “smart” device, such as smartphones, tablet computers, laptop computers and desktop computers, that is connected to the same internet protocol address as the Vizio smart TV.

In this complaint, the following is alleged:

• Count One: Violations of the Video Privacy Protection Act (18 U.S.C. § 2710)
• Count Two: Violation of the Prohibition of Disclosure by Persons Providing Video Recording Sales or Rentals Without Written Consent (Cal. Civ. Code § 1799.3)
• Count Three: Violation of California’s Unfair Competition Law (Cal. Civ. Code § 17200, et seq.)
• Count Four: Violation of California’s Consumer Legal Remedies Act (Cal. Civ. Code §§ 1750, et seq.)
• Count Five: Indiana Deceptive Consumer Sales Act (Ind. Code §§ 24-5-0.5, et seq.)
• Count Six: Unjust Enrichment
• Count Seven: Fraud by Omission
• Count Eight: Breach of the Implied Warranty of Merchantability

• Count Nine: Violation of the Electronic Communications Privacy Act (18 U.S.C. § 2511)

Plaintiff Pagorek, on behalf of himself and the other members of the proposed class, requests damages, injunctive relief, interest, attorneys’ fees and costs.

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Santa Clara, California – EFF to participate in today’s U.S. House Judiciary Committee discussion on copyright law in the digital age.

Today at 2 p.m., Electronic Frontier Foundation (“EFF”) Staff Attorney Kit Walsh will participate in a roundtable discussion about U.S. copyright laws convened by the House Judiciary Committee, which is undertaking the first comprehensive review of the nation’s copyright laws since the 1960s.

EFF argues that copyright was intended to promote creativity, but the law has not developed to support the explosion of creativity enabled by new technologies. Too often, it says, copyright is instead being abused to shut down innovation, creative expression, and even everyday activities like tinkering with your car.

Indianapolis, Indiana – The Southern District of Indiana held that copyright Defendant Rural Media Group Inc. of Gretna, Nebraska was subject to neither general nor specific personal jurisdiction and dismissed the copyright infringement lawsuit against it.

Plaintiff Larry Philpot of Indianapolis, Indiana is a professional photographer. He photographed Willie Nelson during a music concert in St. Louis, Missouri. Plaintiff Philpot later registered the photograph with the United States Copyright Office. He also licensed the photograph to be used by others under the terms of the Creative Commons Attribution 2.0 Generic License.

This lawsuit, filed by Philpot acting as his own copyright attorney, was brought when he learned that Defendant had allegedly published the copyrighted photograph on its website, www.myruraltv.com. In the lawsuit, Philpot contended that Defendant had infringed Plaintiff’s copyright by the unlicensed publication of the Nelson photograph. Philpot argued that the court could exercise both general and personal jurisdiction over Defendant.

In contrast, Defendant asked the Southern District of Indiana to dismiss the lawsuit for lack of personal jurisdiction, asserting via a declaration of one of its corporate officers that it “does not own, lease, occupy, or use any real or personal property in Indiana[,] . . . maintain an office in Indiana, maintain a registered agent in Indiana, maintain a bank account in Indiana, or pay taxes in Indiana” and that its “website and Facebook page do not specifically target the Indiana market, but rather target a mass national audience.”

District Judge William T. Lawrence granted the motion to dismiss. On the issue of general jurisdiction, the court noted that “Defendant is a Delaware corporation with its principal place of business located in Gretna, Nebraska. Its only other office is located in Nashville, Tennessee.” The court stated that “general jurisdiction exists only when the [party’s] affiliations with the State in which suit is brought are so constant and pervasive as to render it essentially at home in the forum State”; it added that the prior standard of “substantial, continuous, and systematic course of business” was insufficient. Under the controlling jurisprudence, handed down by the U.S. Supreme Court in the 2014 case Daimler AG v. Bauman, such constant and pervasive contacts are, except in rare cases, present under only two circumstances: when the proposed forum state is the corporation’s principal place of business or its state incorporation. As neither of these conditions was met, and as this was not an exceptional case which might warrant a deviation from the standard rule, general jurisdiction was held to be improper.

The court held that an exercise of specific jurisdiction, a less stringent standard than general jurisdiction, would also be improper. While specific jurisdiction can be found where a defendant is accused of expressly aiming an intentional tort at the forum state, neither “express aiming” nor an intentional tort were in evidence.

The court denied several related motions by Plaintiff and granted Defendant’s motion to dismiss.

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