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U.S. Applications Rise, IHOP, Martha Stewart, HP: Intellectual Property
Applications to the U.S. Patent and Trademark Office have risen about 4 percent this fiscal year, a sign the economy is improving, Director David Kappos said.
“The U.S. business sector seems to be reviving,” Kappos, 49, said in an interview at Bloomberg’s Washington office yesterday. “We all know that the recovery isn’t as fast as we’d like it to be, but one leading indicator is the filing of patent applications.”
Medical, computer, biotechnology and nanotechnology inventions have led the increase for the year ending this month, following a 2.3 percent drop in applications in fiscal 2009. Kappos, a former engineer and intellectual property lawyer for International Business Machines Corp., said he has been working to improve the efficiency of the patent office and eliminate a backlog of applications that had reached 750,000.
“You can think of each one of these as a business, as some new product or service that’s sequestered in a government agency, that’s locked down, that’s inhibited from reaching the marketplace,” Kappos said. “To have 750,000 of these things sitting in a government agency is not good for innovation.”
In the 13 months he’s headed the agency, Kappos has worked to meet an interim goal of cutting the backlog to less than 700,000 by the end of this fiscal year. He said he wants to have an “inventory” of pending applications of 325,000 by 2015.
To do that, Kappos said he is drawing from his 26 years at IBM, the world’s largest computer-services provider, to introduce more “business-related processes” at the agency. He has changed how examiners process applications, with more personal interviews with inventors early in the process. The agency is holding pep rallies, approving overtime and handing out candy to improve morale and productivity.
There were 485,500 patent applications filed in fiscal 2009, and 190,121 patents issued, the most in the agency’s history. There were more patents issued in fiscal 2009 than applications filed in fiscal 1993, according to agency data.
Kappos also created a special program that lets applicants with inventions that increase energy efficiency to petition for a speedier review. The so-called green energy program has been so popular, a similar approach is being considered for other products including medical devices, Kappos said.
The agency also is developing a three-track system that would let applicants, for a fee, get their inventions reviewed more quickly. Kappos said he expects smaller businesses will take advantage of the program, which may begin in about a year.
Apple Gets Patent for Laminate and Method of Creating It
Apple Inc., the Cupertino, California-based maker of the iPad and iPhone, received a patent on a technology to improve the appearance of the outer skin of the various devices it makes.
Patent 7,790,637 is one of 5,106 new patents issued Sept. 7, according to the database of the U.S. Patent and Trademark Office. The patent covers a composite laminate with “an improved cosmetic appearance.”
The laminate is comprised of various layers of material containing woven or parallel carbon fibers. A scrim of reinforcing fibers is laid on the top and absorbs the resin from the inner layers.
The resin can be clear or pigmented. If the resin is clear, the carbon fibers in the lower layer would be more visible and, according to the patent, provide “a greater perception of depth to surface. ”
Apple applied for the patent in October 2007, with the assistance of Washington-based Sterne Kessler Goldstein & Fox PLLC.
For more patent news, click here.
Trademark
IHOP sues International House of Prayer Over Trademarks
DineEquity Inc.’s International House of Pancakes unit sued a Missouri-based religious group for trademark infringement.
The International House of Prayer of Kansas City, Missouri, and affiliated churches in California are accused of infringing the pancake chain’s “IHOP” trademarks. The restaurant group has used the “IHOP” acronym since 1973 and has six registered trademarks containing “IHOP,” according to the complaint filed Sept. 3 in federal court in Los Angeles.
The church, which broadcasts services live across the Internet, is accused of infringing the mark by referring to itself as IHOP-KC, through its IHOP University Bible school, its signage, and its presence on Facebook Inc.’s social media site, according to the complaint. The church, which used www.ihop.org as its website address, also operates a coffee shop that serves food and beverage at its Kansas City facility, according to court papers.
The church’s use of the IHOP mark causes great and irreparable injury” and confuses the public, the pancake chain said in its pleadings.
It asked the court to order the church to halt its infringement, and seeks awards of litigation costs and attorney fees. No request was made for money damages, and the pancake chain did not seek transfer of the church’s www.ihop.org domain name.
The pancake chain is represented by Robert Lauson and Edwin Tarver of Lauson & Tarver LLP of El Segundo, California.
The case is IHOP IP LLC v. International House of Prayer, 2:10-cv-06622-SJO-SH, U.S. District Court, Central District of California (Los Angeles).
Martha Stewart Omnimedia Sued Over Vampire Wine Labels
Vampire Vineyards, a California wine company, sued Martha Stewart Living Omnimedia for trademark infringement.
The complaint, filed Sept. 7 in federal court in Los Angeles, is related to stick-on Martha Stewart labels that can be used over regular labels on a wine bottle. The labels, sold in sets of six or 12, can be used to “transform any standard wine bottle into a vampire’s delight,” according to one of the websites through which they are sold.
The wine company, which has been in business since 1988, uses the slogan “Sip the Blood of the Vine,” and products “quite serious wines,” according to court papers. The wines range in price from $10 to $30 a bottle and are presently sold in 47 states, the company said in its pleadings.
Stewart’s mock labels “disparage and tarnish” Vampire Vineyard’s products, the wine company claims. In addition to Stewart’s company, Meredith Corp., Wilton Products Inc., Jo-Anne Stores Inc., Michael’s Stores Inc., IAC/InteractiveCorp and Stewart herself are also defendants, accused of infringement because of their sales or promotion of the allegedly infringing labels.
Vampire Vineyards asked the court to bar the sale and promotion of the Martha Stewart vampire labels, and for awards of money damages, including $2 million for each category of merchandise sold.
Additionally, the Beverly Hills, California-based wine company asked for awards of attorney fees and litigation costs and cash for prospective corrective advertising “to be at least 10 times the amount of advertising dollars spent by defendants.” Claiming the infringement is deliberate, it also asked for an award of the defendants’ profits related to the alleged infringement and requested that this mount be tripled.
Michael Machat of Machat & Associates of Beverly Hills represents the winery. He is also Vampire Vineyards’ chief executive officer and a co-plaintiff in the case.
The case is Vampire Vineyards v. Martha Stewart, 2:10-cv- 06650, U.S. District Court, Central District of California (Los Angeles).
For more trademark news, click here.
Trade Secrets/Industrial Espionage
HP’s Bid to Bar Hurd’s Oracle Move May Be Long Shot
Hewlett-Packard Co.’s lawsuit seeking to block former Chief Executive Officer Mark Hurd from working at Oracle Corp. may be hard to win because California’s courts favor letting employees move freely, legal experts said.
HP said that serving as an Oracle president would make it “impossible” for Hurd to avoid using or disclosing HP’s trade secrets and confidential information, according to yesterday’s complaint in California’s Santa Clara County Superior Court.
The theory that trade secrets will inevitably be disclosed “won’t work in California as a reason to prevent someone from taking a job,” said Mark Lemley, a professor at Stanford Law School who specializes in intellectual property. “Neither will California courts enforce a noncompete agreement. HP will have to show real evidence that Mark Hurd is about to use its secrets at Oracle.”
Technology companies including HP, Apple Inc., Microsoft Corp., International Business Machines Corp. and Google Inc. have clashed over hiring in the past, with one side trying to bar moves by managers privy to sensitive information. In this case, that strategy collides with public policy in California, where Hurd and both companies are based, that promotes allowing people to change jobs to keep working in their areas of expertise.
Oracle CEO Larry Ellison said in a statement that the lawsuit was “vindictive” and that it would make it more difficult for the two companies to work jointly in the information technology market.
Glenn Bunting, a spokesman for Hurd, declined to comment.
To say that HP will have “an uphill battle would be an understatement,” said Stephen Hirschfeld, a partner at Curiale Hirschfeld Kraemer LLP in San Francisco. “In this state, you can do pretty much whatever you bloody well want unless you compete with me unfairly.”
To win its case, HP would need to prove that Hurd used HP’s proprietary business knowledge to gain an unfair advantage in competition, he said.
While Hirschfeld gives HP little chance of extracting a monetary settlement from Hurd, he said the company may be able to force its ex-CEO to recuse himself from certain decisions about products or strategic issues for a period of time.
Hurd left HP Aug. 6 after the company said he violated standards of business conduct. An investigation into a sexual harassment claim said inaccurate expenses, filed by him or in his name, covered up a personal relationship with a contractor.
As he left, Hurd signed an agreement not to enter into conflicting business arrangements for two years. Portions of agreements that touch on divulging confidential information would “apply at all times,” according to the complaint.
Because of Hurd’s Oracle plans, “HP is threatened with losing customers, technology, its competitive advantage, its trade secrets and goodwill in amounts which may be impossible to determine,” according to the complaint, which accuses him of breach of contract and doesn’t name Oracle as a defendant.
The $12.2 million in severance was due to be paid 30 days after Hurd resigned from HP, according to an Aug. 6 company filing with the Securities and Exchange Commission. Oracle announced Hurd’s hiring 31 days after he left HP.
Complaints of the kind filed against Hurd often are settled out of court, said Larry Drapkin, a Los Angeles-based employment law partner at Mitchell Silberberg & Knupp who litigates trade secrets cases.
“Under California law, the state just doesn’t look kindly on provisions that appear to be precluding a former employee from taking a job with a competitor,” he said.
Last year, Apple and IBM resolved a legal disagreement over Apple’s decision to hire IBM executive Mark Papermaster as engineering chief. Under the resolution approved in federal court in White Plains, New York, Papermaster agreed not to use or disclose confidential IBM information.
In 2007, HP paid printer maker Lexmark International Inc., $525,000 over HP’s hiring Bruce Dahlgren to oversee printer sales. Under the settlement filed in a Kentucky state court, Dahlgren was prohibited from recruiting Lexmark employees and from interfering with Lexmark’s customer relationships for 1 1/2 years.
Two years earlier, Google and Microsoft settled an employment dispute over Google’s hiring of former Microsoft Vice President Lee Kai-Fu to run a research facility in China. The confidential settlement was announced less than three weeks before a trial was scheduled to start in Seattle.
If HP’s case against Hurd doesn’t settle, the company can prevail in California only by showing actual or threatened misuse of a trade secret, Lemley said in an e-mail.
“California courts affirmatively encourage employee mobility,” he said. “That is one of the things that made Silicon Valley possible.”
In its complaint, HP proposed that the court appoint a special master to review and report monthly on Hurd’s compliance with his confidentiality obligations to HP.
Drapkin said he couldn’t imagine how that could be worked out.
“What is it they are going to do? Shadow Mr. Hurd?” he said. “I’m not sure a new employer is going to be all that excited about it either.”
The case is Hewlett-Packard Co. v. Hurd, 110-cv-181699, California Superior Court, Santa Clara County (San Jose).
Copyright
French Internet Providers Ask Court to Block Piracy Authority
A group representing French Internet-service providers asked the country’s highest administrative court to block the start of some anti-piracy enforcement efforts.
The law on Internet copyright protection is too vague and doesn’t guarantee the presumption of innocence, the French Data Network president Benjamin Bayart told the court. The Conseil d’Etat should halt the enforcement work of the copyright authority, known as Hadopi, he said, because the government didn’t consult telecommunication regulators on the enforcement process.
Culture Ministry representatives defended Hadopi as offering sufficient protections. The anti-piracy law was revised after being rejected last year by the Constitutional Council, France’s highest legislative court, for not protecting the civil liberties of Internet users and ensuring they aren’t arbitrarily deprived of service.
Judge Bernard Stirn will issue his decision on the injunction request on Sept. 15.
For more copyright news, click here.
IP Moves
Sterne Kesssler Hires Trademark Expert from Finnegan Henderson
Sterne, Kessler, Goldstein & Fox PLLC hired Monica Riva Talley for its trademark practice, the Washington-based IP specialty firm said in a statement.
Talley, who joins from Washington’s Finnegan, Henderson, Farabow, Garrett & Dunner LLP, does trademark-related transactional work and litigation. She’s represented clients in the consumer products, manufacturing, telecom, biotechnology, computer, media and entertainment industries.
Before she was a lawyer, she worked as an advertising copyrighter and a marketing director.
Talley has an undergraduate degree in marketing and management from the University of Richmond and a law degree from George Washington University.
To contact the reporter on this story: Victoria Slind-Flor in Oakland, California, at vslindflor@bloomberg.net.
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