This litigation is no small matter.  Since 1998, sales of the Quilted Northern toilet paper exceeded $7 billion, and between 2002 and 2009, sales for the Angel Soft exceeded $5 billion.  Thus, the outcome of this litigation will have serious financial implications for toilet paper producers and their marketing programs.  Georgia-Pacific seeks to prevent future infringement by Family Dollar and its distributor in addition to an order preventing Family Dollar from asserting that the toilet products are comparable.  Georgia-Pacific also seeks money damages, costs and attorney fees.  It will be interesting to see how this suit plays out (check back for more updates). 

Georgia-Pacific Consumer Products LP v. Family Dollar Stores Inc., 1:10-cv-00584-JEC, U.S. District Court, Northern District of Georgia (Atlanta).

According to WIPO, filings by applicants in the United States fell by 11.4 percent in 2009, although the United States maintained its top ranking with 45,790 applications in total. Filings from applicants in Germany, Canada, Sweden, and Israel also declined by double-digit figures.

In contrast, WIPO continued to register increasing applications from East Asian countries. China led the way with nearly 8,000 PCT applications, a 30 percent jump over 2008. China moved ahead of France and now ranks fifth among PCT applicants, up from 6th position the previous year. A growing trend.

The infringing versions of Word employ a technology called “Custom XML,” which lets users edit XML, the programming language that controls the way programs interpret and display the contents of a document.

In a statement, Microsoft said that it has been developing modified versions of Word 2007 that do not use the Custom XML feature.  Microsoft claims that these modified versions will be ready for sale by January 11, 2010, the date on which the permanent injunction takes effect.  Microsoft also noted that it is considering further legal options, “which could include a request for a rehearing by the Federal Circuit Court of Appeals en banc or a request for a writ of certiorari from the U.S. Supreme Court.”

The court noted that its decision did not impact copies of Word 2007 sold before the injunction takes effect, so Microsoft can continue to provide technical support with respect to those versions.

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

The complaint states that “Activision has deceived and confused the public into believing that No Doubt authorized the use of its name and likeness for the Character Manipulation Feature of Band Hero and that No Doubt approves and endorses the appearance of its members individually performing songs that are wholly inappropriate and out of character for No Doubt.”   The band members view the Character Manipulation Feature as particularly problematic since users could, for example, have Stefani’s image sing to the Rolling Stones’ “Honky Tonk Woman.” 

Jim Gueiront, No Doubt’s manager, claimed ”[the members] are bitterly disappointed that their name and likeness [were] taken and used without their permission…[Activision] agreed to play three No Doubt songs as a band…. Activision then [without permission] put them in 62 other songs and broke the band up.” 

Activision believes it is within its legal rights and that the lawsuit is meritless: “Activision has a written agreement to use No Doubt in Band Hero – an agreement signed by No Doubt after extensive negotiations with its  representatives, who collectively have decades of experience in the entertainment industry.  Pursuant to that agreement, Activision worked with No Doubt and the band’s management in developing Band Hero.” 

To succeed on a right of publicity claim under California law, a plaintiff must show four elements: (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.  Hilton v. Hallmark Cards, 580 F.3d 874, 889 (9th Cir. 2009); Downing v. Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir. 2001).  

It will be interesting to see how elements 3 and 4 will be litigated. 

(http://latimesblogs.latimes.com/music_blog/2009/11/no-doubt-sues-activision-over-band-hero.html)

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.

It is no secret that the USPTO is overwhelmed with patent applications.  Indeed, this was the motivation behind the now abandoned rules changes the office proposed recently.  Inherent in an overburdened system is the likelihood of errors, especially by omission.  Therefore, it is possible that prior art that should have been found by an overburdened examiner never comes to light and an easily invalidated patent could grant.

Even if the USPTO was not so overworked, it could not possibly find all of the prior art that may be germane to a particular application.  However, it is not like that art cannot be found.  Indeed, when parties really want to find good art they spend money doing so and usually can find the needed references.  This explains why new prior art frequently pops up during the course of litigation (recall the facts on Graham v John Deere).  Ultimately, however, while there is a presumption of validity on issued patents, if prior art is out there is can invalidate a patent.  Therefore, it is in everyone’s best interests to get all the prior art out there during the patent prosecution process

One interesting approach to solving these problems was tried recently during a two year (2007-08) pilot program conducted by the USPTO and New York Law School’s Institute for Information Law and Policy.  The so called “peer to patent program” added a peer review element to the examination procedure.  But, this was not the usual peer review of scientific journals, namely sending the matter to a few experts for their opinions.  Rather this system opened the process up to everyone who sought to contribute.

Basically the program worked in the following way.  Examiners and applicants in the computer and business methods arts could volunteer to take part in the program (I’ll leave the ironic Bilski issues out of this for now).  Tagged applications were posted on the web and whoever was interested could read the materials and discuss them with others.  Then individuals searched for prior art and posted it to the site.  Individuals were asked to annotate how the art addressed particular claims in the application.  After some time elapsed, the top ten references were forwarded to the examiner who then reviewed them and proceeded with the examination process.  In this way, the hope was that the examiner would spend less time having to search for art and would not miss obviously relevant references.

The program ended last year and is being evaluated by the USPTO.  A promising note is that the program was recently identified by the White House Open Government Initiative as one of the innovations in Open Government.  Is this a feasible system for solving some of the problems in our current way of examining patents?

• Monster Problem for Rock Art – WCAX.com
• Timeline of Dispute – Beernews.org
• A True Monster Attacks Rock Art Brewery – Washingtoncitypaper.com

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

The USPTO announced today that it will file a motion to dismiss in Tafas v. Kappos, the case regarding the validity of a controversial rules package proposed by the USPTO.  This effectively marks the end of the rules proposed to help make the USPTO reduce its application backlog.  In short these rules would have restricted the capacity of inventors to prosecute applications: setting limits on the number of Continuations and RCEs that applicants could file.  Also, applications would be limited as to the number of claims that could be included.  See the Patent Office press release for more information: http://www.uspto.gov/news/09_21.jsp