Brouwerij De Molen (Belgium) and North Coast Brewing (California) have reached an agreement regarding competing beer names. North Coast, producer of Old Rasputin, contacted De Molen, producer of Rasputin, in hope of stopping them from using the name Rasputin for their beer. North Coast’s Old Rasputin was already one of the most widely available Imperial Stouts in the US Market for a number of years when De Molen’s Rasputin appeared in US stores just last year. The use of the name Rasputin by De Molen could likely dilute the trademark of North Coast when sold in the same stores. The two came to an agreement in lieu of a long court battle.
The agreement caused De Molen to stop using the Rasputin name, but not without taking a shot at North Coast in the process. After changing the name of their beer to Disputin, De Molen printed the following under the name, ”This stout used to be called Rasputin, but the people who make Old Rasputin in California thought you were too dumb to tell the two products apart, and threatened to sue us for trademark infringement.” [LABEL IMAGE] While many breweries are teaming up to create collaborative brews, some continue to fiercely compete.
Full Story From Beernews.org
Publishers around the globe are suffering from consistent reductions in ad sales and revenue driven by decreased circulation. The most common target of the publishers’ anger and frustration have been online aggregators. In the U.S., aggregators have been party to a series of lawsuits, most of which have ended in undisclosed settlements. The U.S. government has yet to take action to clarify how the copyright laws relate to the aggregation of content online.
A different story is unfolding in Germany where the government is proactively taking steps to create a new type of copyright designed to protect publishers against online news sites. According to the The New York Times, the German government’s proposal would give publishers a “neighboring right,” similar to what music labels and movie houses already enjoy. Details of the proposal have not been fully hashed out, but one suggestion is to require a license for any commercial use of published material online. A new royalty collection agency would be created to gather and distribute the fees. Private, noncommercial uses would remain unrestricted.
Opponents to the plan say extension of the copyright laws runs counter to the “spirit of openness” that characterizes the web. They also argue that distinguishing between commercial and private noncommercial use would be extremely difficult. Fair use is an additional concern, though fair use protection in Germany is nowhere near as strong as it is in the U.S. It will be interesting to see whether the German proposal is adopted, and if it will have any influence on the extension of U.S. copyright laws in this area.
Rock Art Brewery owners Matt and Renee Nadeau received a cease and desist letter from makers of Monster Energy Drink (Hansen Beverage Company) to stop selling its Vermonster beer and drop its efforts to get a federal trademark for the name. Hansen claims use of the name Vermonster beer “will undoubtedly create a likelihood of confusion and/or dilute the distintive quality of Hansen’s Monster marks.” Although several lawyers have advised Rock Art that they would likely prevail in the legal battle, it is unclear whether the small brewery will have the funding to go up against a company like Hansen who has revenues of around $600 million per year.
UPDATE: Monster and Rock Art came to an agreement that Rock Art may continue to use the name “Vermonster” as long as it stays out of the energy drink business. LINK
There is a business dispute with IP ramifications currently ongoing in the San Francisco area. This dispute centers on duck tours. Everyone here in Boston is probably familiar with the duck tours that use WWII-era amphibious vehicles (or replicas) to tour the city both on land and water. This is a pretty lucrative business that is common in large cities across the U.S. One of the leading companies in this field is Ride the Ducks, which operates these tours in many cities (for those wondering, Ride the Ducks does not own Boston Duck Tours but does partner with it). It seems that Ride the Ducks has recently come in the San Francisco market where it is looking to displace a local duck tour company, Bay Quackers. For all of the juicy, “business is war” details see: http://www.sfweekly.com/2008-11-12/news/clash-of-the-quackers/1.
Ride the Ducks has filed a trademark infringement suit against Bay Quackers regarding a sound mark it registered for the quacking sound its duck kazoos make (!). For those not familiar, tourists can obtain kazoos that make ducks sounds to use while on one of these tours. Sound marks are a type a trademark that work in roughly the same manner as normal trademarks. For example, NBC has received a trademark for not only its visual logo (the peacock) but also its auditory logo (the chimes). Similarly, AOL has sound marked “You’ve Got Mail”; the Harlem Globetrotters have a sound mark on the whistled version of “Sweet Georgia Brown”; and even the Pillsbury Doughboy’s giggle is protected. To obtain protection of sound marks, the USPTO requires first, that the mark be a source identifier, i.e. when a person hears the sound, she associates it with a company. Secondly, the sound must be distinct, a property that can be either inherent to the sound or acquired through usage. Lastly, the sound must not be functional. Sound marks are very rare, with the USPTO database showing only about one hundred and fifty live marks.
While a lawsuit over quacking kazoos seems inherently ridiculous, it has major business ramifications, especially for the alleged infringer, Bay Quackers. Should Ride the Ducks receive the injunction it has sought, it would receive a commercial advantage in a very competitive market. Such an advantage, regardless of how small it may be, could be enough to tip the scales.
Pfizer’s purchase of Wyeth is big news for the pharmaceutical industry, and for big business in general. Because its blockbuster cholesterol drug Lipitor comes off patent in 2010, probably ceding much of its $12.6 billion market to generics, Pfizer went looking to boost its pipeline in search of the next blockbuster drug.
Despite the generally gloomy outlook on Pfizer’s own pipeline, it still has a number of blockbuster drugs that remain on patent (based on rough projected global sales for 2008): rheumatoid arthritis drug Celebrex ($2.5 billion, on patent until 2014), Xalatan for glaucoma ($1.8 billion, on patent until 2011), Detrol for overactive bladder ($1.2 billion, on patent until 2012), antibacterial drug Zyvox ($1.1 billion, on patent until 2021) and schizophrenia drug Geodon ($1.0 billion, on patent until 2012). The company still makes money from off-patent drugs, such as erectile dysfunction treatment Viagra ($2 billion, off patent since 2000), but sales generally drop off dramatically as patents expire and exclusivity ends. See high blood pressure medication Norvasc ($2.2 billion, but down from $4.9 billion in 2006 since it came off patent in 2007), antidepressant Zoloft ($142 million, but down from $3.3 billion in 2005, off patent since 2006) and antibacterial Zithromax ($121 million, but down from $2 billion in its patent expiration year of 2005).
Pfizer acquires a major player in Wyeth, with blockbuster drugs including antidepressant Effexor ($3.9 billion, off patent in 2010), children’s vaccine Prevnar ($2.7 billion , off patent in 2007 in the US, but extended to 2012 in Europe), arthritis drug Enbrel ($3.8 billion, off patent in 2009), antibiotic Zosyn ($1.3 billion, off patent in 2007) and sales from nutritionals, vitamins and Advil totaling $3.0 billion in 2008.
This represents a trend in the pharmaceutical industry towards consolidation, in the hope of producing the next Lipitor, a drug which can net a company tens of billions of dollars each year. Of course, monopoly profits only come with exclusivity, so I’m guessing patent lawyers and IP litigators will continue to find themselves very busy, even in the down economy.
On January 6th, Apple announced that it will offer music from all four major music labels (Universal, BMG, Warner Bros. and EMI) for the first time as DRM-free downloads. This is a huge step for iTunes, finally catching up with the method Amazon MP3 has used since its inception. This represents a policy shift towards allowing users to freely transfer songs between their computers and mp3 players, something previously made extremely difficult and awkward by Apple’s DRM scheme. Though iTunes allowed authorization of up to 5 computers to play content purchased from its iTunes Store, this always seemed like an artificial and arbitrary restriction to place on its users (not to mention the fact that DRM protected content couldn’t be played on other mp3 players). Apple of course was well within their legal rights to negotiate licensing however they pleased and to implement their DRM scheme, but this decision marks a clear statement that it was a failed policy as a business decision.
Even though iTunes clearly maintains the content advantage over Amazon MP3 (10 million songs versus only 6 million), I will continue to use Amazon MP3 exclusively, and recommend my friends do the same, both because of the universality of the mp3 format, and my general disdain for Apple products (don’t get me started on the pathetic quality of iTunes as a music player/manager).
More generally, this marks a business trend towards a new method of dissuading piracy: Give users the autonomy to view and use content in the way they please, and they will be more likely to legitimately purchase copyrighted material, and less likely to resort to illegal copying and dissemination. This move by Apple, along with the free streaming video content offered by Hulu (a collaboration between NBC, Fox, MGM, Sony, Warner Bros. and more), and most other major networks making their shows available streaming for free on their websites, represents a win for end users, freed from arbitrary and cumbersome restrictions on the use and enjoyment of the growing variety of digital content becoming available on the web.
Recently on Bill Heinze’s I/P Updates, I read about a note published by George Mason authors entitled “Improving Patent Examination Efficiency and Quality, An Operations Research Analysis of the USPTO, Using Queuing Theory“. 17 Fed. Cir. B. J. 133, 163 (2007). The authors were attempting to validate validate the PTO’s concern with excessive continuation filings and proposed new rules regarding continuations. The model, which incorporated feedback and branching of applications, was based on two assumptions:
- A priority queue processes higher priority items first, giving them a shorter queuing delay – but at only at the expense of longer queuing delays for lower-priority arrivals. Since the USPTO gives higher priority to RCEs and continuing applications than to regular new applications, large numbers of RCEs and continuing applications should result in disproportionate waiting times for regular new applications.
- At the very least, a limit on the number of continuing applications would be desirable because continuing applications can produce multiple generations of unlimited numbers of high priority offspring. RCEs and multiple non-final office actions both contribute to the risk of starvation, but pose less potential risk than continuing applications because they do not produce parallel offspring (branching feedback).
Surprisingly, the study found that continuing applications were not the primary cause of congestion of patent applications at the PTO. According to the model, the excessive number of non-final rejections per application was the main culprit. The non-final rejections in each round of prosecution exceeded by far the number of second and later RCEs and continuation applications. Thus, limiting or prohibiting successive generations of RCEs and continuation applications as the only change will not be effective in reducing the backlog. Instead, reducing non-final rejections per application would be more effective because it would relieve the PTO of its primary burden on the system.
The note went on to say that hiring additional examiners is not an effective solution because the PTO would need to exponentially increase its personnel in order to keep up with its load of patent applications. Instead, a policy change addressing the source of the problems is required.
Thus, it looks like it is time for the PTO to revise its rules, which have already been brought into question by Tafas v. Dudas, described in my blog from Nov. 2. Using research data and mathematical models may prove to be a valuable aid as the PTO leadership considers its next move.
It seems like a lot of law school students come to the IPTF thinking that they want to be “intellectual property lawyers.” But the concepts of IP bleed over into a lot of areas. For example, I’m helping a partner write a presentation on trade secrets; but neither of us are IP lawyers. And then what I’ve learned about trade secrets has helped me in writing up a non-competition agreement within a corporate acquisition.
So I think that when folks come in with an interest in IP they shouldn’t limit themselves to pure patent practice, but just leverage those interests into making an informed impact in broader areas that overlap with IP. It opens a lot more options for jobs, too.
Today SCOTUS finally handed down its decision in KSR v. Teleflex and weighed in on the nonobviousness standard. Writing for a unanimous Court, Justice Kennedy, as expected, rejected the Federal Circuit’s current test for nonobviousness – whether there was a teaching, suggestion, or motivation (TSM) to combine prior art references. The TSM test does provide helpful insights into the nonobvious inquiry, however, that does not demand the application of a narrow and rigid standard. Under the new standard the court must determine whether the is more than a predictable use of the prior art elements according to their established functions. Just a preliminary post. More to come.
The New York Times is running an article on the man and the company behind sudoku. Interestingly, the brain power behind sudoku, Mr. Kaji, wasn’t able to make much money because he didn’t trademark the name “sudoku,” but because the IP wasn’t protected he feels that popularity of the game exploded:
While no one knows how much revenue is generated by the global sudoku business, most agree it has easily topped $250 million over the last two years from an estimated 80 million devotees. The New York Times syndicate provides a variety of logic puzzles, including sudoku, kakuro and others, for newspapers and Web sites around the world.
Nikoli received only a sliver of that money. Mr. Kaji says his private company, with just 20 employees, had annual sales of about $4 million.
Sudoku’s popularity in the United States caught Mr. Kaji by such surprise that he did not try to get the trademark there until it was too late. As a result, Nikoli receives no royalties from sudoku-related sales overseas by other publishers.
In hindsight, though, he now thinks that oversight was a brilliant mistake. The fact that no one controlled sudoku’s intellectual property rights let the game’s popularity grow unfettered, Mr. Kaji says. Nikoli does not plan to trademark other new games, either, in hopes this will also help them take off.
“This openness is more in keeping with Nikoli’s open culture,†said Mr. Kaji, who sat on a sofa in his Tokyo office among pillows adorned with printed faces of racehorses. “We’re prolific because we do it for the love of games, not for the money.â€
While this might just be a good marketing face to show, it’s core aligns with the philosophy of open source, copyleft, GNU, etc. If you don’t control the IP, a product has a chance to explode. If you do it for the love of the product, then maybe your reward will be greater in the end.
IP, International, News | Jeff Kanof | 
November 30, 2009 5:45 pm | 
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