LIKELIHOOD OF CONFUSION®

Bob Ambrogi:

The document-sharing site JD Supra is launching an application for Facebook today that lets its members stream their documents and professional profile information into their Facebook profiles. This means that if you contribute documents to JD Supra, you can get additional exposure by having them show up in Facebook.

Sounded interesting to us!  After some back and forth with “JD Twitt” on Twitter (oh, yeah, you can get LIKELIHOOD OF CONFUSION®on Twitter), he sent this dove forth:

@RonColeman showing what he can do - uploading a heap of legal docs on JDS: [click here]…

And that’s exactly what we did… and are still doing.  Not only the winners, either — but all of our children are special to us.

Public Citizen’s Paul Alan Levy reports:

A few weeks ago, I commented on the efforts of mega law firm Jones Day to abuse trademark law to suppress articles it didn’t like on a real estate transactions web site, BlockShopper.com.  Jones Day claims that linking to its web site without permission infringes and dilutes its trademark.  Along with EFF and other public interest groups, we also filed a brief as amici curiae explaining why a case like this should have to meet a higher pleading standard, and why allowing cases like this to proceed threatens the free speech rights of the general public.

Earlier this week, the trial judge denied the motion to dismiss on the ground that the complaint contains the right formula of words to plead likelihood of confusion and dilution, without addressing the broader concerns that we raised.  Paradoxically, the judge declined to accept our amicus brief (which Jones Day had opposed), largely on the ground that, supposedly, it did not say anything that the defendants did not say.

The opinion is worth reading as much for what it doesn’t say as for what it does.  The judge ignores the larger issues and gives no guidance to the parties, not to speak of the rest of the world, about what proofs will suffice to create liability or confer adequate defenses.   Of course, it is always up to a judge how much to say to explain his decisions, but this thirteen-page decision is quite remarkable for how little it says.

Welcome to the world of trademark law, Public Citizen!

We never win, so it’s not about that.  The reason must be because we write about sub-niche topics here which for some reason not everyone finds fascinating.  But you can nominate and vote for your favorite law blogs, and other blogs, in this year’s Weblog Awards.

No, not that Sonny.  No, rather this:  If America’s most famous variety-show-star-turned-congressman hadn’t slammed into that tree on that fatal day of downhill skiing, we’d probably never have the Sonny Bono Copyright Term Extension Act of 1998.  That’s reason to mourn him right there.

Fair enough — if he’d sat in the lodge and drank cocoa instead we would probably still have the law, but at least its embarrassing content would not be matched with a preposterous name.  But given that it is what it is, ten years later, what is it?  Gigi Sohn says well:

How can you measure the number of new works and new wealth that were not created because of the extended terms? Or the number of new orphan works created? But since it has been shown that about 98% of copyrighted works lose their value between year 55 and year 75 of protection, we know who has profited from the law – large, multinational media companies like Disney, Fox and NBC-Universal, who maintain a vise-like grip on works that should have belonged to the public years ago. Suffice it to say that the Sonny Bono Act was nothing more than corporate welfare for big copyright holders. . . .

Ok, I got that off my chest. Now let me say something positive about both the DMCA and the Sonny Bono Act. The simultaneous passage of these two copyright strengthening bills, despite the strenuous objections of libraries, arts and cultural organizations, consumer electronics companies, and cyberliberties groups clearly hit a nerve, and became the impetus behind the copyright reform movement. . .

[W]hile we’ve stopped many bad things from happening, we have not yet been able to get any law or policy adopted that would bring some balance (or sanity) back to copyright law.

Read it!  Hat tip to Denise Howell, via Twitter.

Blawg Recenseo est procul Res Ipsa Blog!

NB (ut opes notabilis “note well“): Nos should totus have habeo Latin nomen pro nostrum blogs. Ut would restituo veneratio quod integrity ut professio , quod enhance publicus contemplor nobis.

(Blawg Review is at the Res Ipsa Blog!

NB (that means nota bene):  We should all have to have Latin names for our blogs.  That would restore honory and integrity to the profession, and enhance the public’s regard for us.)

Knoxnews.com reports:

Unsuccessful state House candidate Roger Byrge is suing Republican Rep. Stacey Campfield for libel.

Byrge, a Democrat who lost his East Tennessee race by fewer than 400 votes, filed the $750,000 lawsuit against Campfield in Jacksboro this week. The lawsuit alleges that Campfield, of Knoxville, falsely wrote on his blog that Byrge had been arrested several times on drug charges. 
Campfield said he has not seen the lawsuit. He said he was only repeating what he had heard about Byrge, and that he was not presenting it as a fact.

An AP report fleshes out the matter of this “not quite a fact” defense some more:

In the Oct. 12 blog post, Campfield said more attention needed to be paid to the race for the open seat in House District 36.

“Word is a … mail piece has gone out exposing Byrge’s multiple separate drug arrests,” Campfield wrote on the blog. “Including arrests for possession and drug dealing. (I hear the mug shots are gold).”

The parts of the post mentioning Byrge are no longer on Campfield’s blog, but a printout of the original text is filed as an exhibit in the lawsuit.

Campfield said Thursday that he was only repeating what he had heard from others.

“I don’t think it ever presents anything as fact,” he said. “I know a little bit about the First Amendment, and I just don’t see him having a basis for damages.”

It would appear that Campfield does know a very little bit about the First Amendment, and even less about the law of defamation. The recent Ohio Supreme Court case of Jackson v. Ohio addresses this narrow question succinctly. Ohio law is not particularly different from the law of most states in this regard, constrained as the states are by the high standard of U.S. Supreme Court decisions applying the First Amendment to such cases (internal quotations and citations omitted). Indeed this decision is based almost entirely on U.S. Supreme Court precedent:

In a qualified privilege case, actual malice is defined as acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity. The phrase “reckless disregard” applies when a publisher of defamatory statements acts with a high degree of awareness of their probable falsity, or when the publisher in fact entertained serious doubts as to the truth of his publication. . . .

[In Jackson v. Ohio, t]he report stated that the source of the rumor was unreliable and a “liar” and “scam artist.” The report and the 969 pages of exhibits in the report’s appendix give the appearance of thoroughness. According to Jackson, however, Rice did not interview him before submitting the report to the mayor. Jackson also asserts in an affidavit that Rice did not ask him about Jones’s allegation or inquire of anyone other than Jones about the [allegedly defamatory] allegation. . . .

Construing the evidence most strongly in Jackson’s favor, as we must when reviewing a summary judgment motion, we conclude that the evidence could support a determination that Rice had a “high degree of awareness of [the statement’s] probable falsity,” or that Rice “entertained serious doubts as to the truth of his publication.” Accordingly, the trial court improperly entered summary judgment [for defendant] in this case, and we reverse the judgment of the court of appeals and remand this case for further proceedings not inconsistent with this opinion.”

Lesson one: Publishing rumors of dubious veracity, and even identifying them as rumors, does not exempt a publisher (blogger or otherwise) from responsibility for their factual content.

Lesson two: Most people really do know, at best, “a little bit” about the First Amendment, and that little bit is probably not enough.

Cross-posted on the Media Bloggers Association’s Legal Blog.

The Internet changes everything right? Not this: A fool and his money — especially the kind paid to consultants — are still soon parted:

Pre-Internet, lawyers would do their best to flesh out the backgrounds of people who might sit in the jury box. “We used to drive by the juror’s house and take a picture just to get a snapshot of, who is this human being?” recalled Robert Hirschhorn, a Dallas-based attorney and jury consultant.

Yet picking the panel whose judgment could send a client to prison or direct the disposition of millions of dollars often came down to intuition. Today, for a growing number of attorneys who want to take the guesswork out of the process, a Web search is a required first stop.

In one recent patent case he consulted on, Hirschhorn says an Internet search revealed that a potential juror owned a business helping beauty pageant contestants find costumes. According to her Web site, she wouldn’t sell certain clothing lines because the designs were patent-protected — “a gold nugget,” he said. “It told us she understood the value of proprietary information.”

It told you that, did it, Robert? Some patent! What did you charge for that brilliant advice? Did this gold nugget tell you perhaps her confusion between patents and copyrights or something else that may or may not govern what clothing lines she could sell could hurt your client rather than help it? Did it tell you whether and how much she perhaps resented not being able to sell those “patent-protected” clothing lines “because of some legal technicality”? Did it tell you anything useful at all? It gets better:

More often, scouring a juror’s postings is an exercise in online psychoanalysis. Social networking sites and blogs can be particularly useful.

“Facebook tells you how people perceive themselves,” Hirschhorn said. “Blogs allow you to peer inside their minds. It’s like tapping a phone call: You’re finding out unfiltered what a person is thinking or feeling.”

Wow. Sounds like the usual amateur psychoanalysis, actually — wild speculation — but with one difference. Unlike other armchair psychologists, this guy actually charges more than a therapist.

Look: Facebook, blogs, all these things tell you how people want you to perceive them, not “how people perceive themselves” or even if they exist at all. Every pixel we upload is the result of a conscious choice we make about what we want the world to think about us. Not everything that is thought deserves to be written, and then some. Who knows what verdicts lurk in the hearts of men? Just ask my friend “Article III Groupie.”

We can no longer say we’ve “never lost” a jury verdict — the one by an (advisory!) jury against our client in Arizona last summer was, however pared-down, ultimately not our way — but post-trial discussions with the jurors confirmed that we’ve never gone wrong picking one: They agreed that if they had been allowed to render a verdict against our client on damages,* they would have awarded a dollar or, if they’d been allowed, nothing.

Consult this: Our trial experience, built upon the sage counsel of a former mentor at least one far more experienced than we on the same point, has taught us that the main things that count in picking a jury are (a) be sure you know in advance whether they are going to be told that pool members are being dismissed peremptorily by one party or the other; and (b) decide before you try your case whether you intend to insult jurors’ intelligence or not. If you are, then if you’re like us you’ll get your client to settle instead, or practice criminal law. If you’re not, then get straightforward, honest-seeming people who can follow a logical argument past A and B and maybe beyond C. Period.

Well, for extra credit, here’s (c): If you are, per (b), trying to avoid having intelligent or informed people sit on the panel, don’t be so “intelligent” that you fail to realize, when sifting your pool for dummies during (a), that the “dumb” jurors are onto you.

Beyond that, claiming to read tea leaves like the ones being peddled in this article (via O’Keefe again!) is not only an exercise in futility, as anyone just reading those statements (assuming they’ve been reported correctly) and who has any familiarity with either human nature of social networking can see. It’s an insult to our own intelligence, and to the intelligence of the general counsels and clients who’ve been suckered into not only paying for this nonsense but purchasing an accountability insurance policy for their trial counsel.

And there’s yer gold nuggest.

–

*Lucky for us, as regular readers know, the judge ruled that there would be no damages in the case at all (this and other great rulings have been appealed by the plaintiff).

That’s summary judgment, or worse, against you or your client.  Last February we reported on a decision in which a federal magistrate judge ruled, unsurprisingly, that there is no “social networking privilege.” Now Walter Olson reports and links on further developments and thoughts as follows:

Nowhere to hide: When your litigation opponent subpoenas your Facebook, Amazon, MySpace, Flickr, LinkedIn and (locked) Twitter pages.

Of course the current “pages” (or current feeds, etc.), other than a locked Twitter page, should not need to be subpoenaed — they’re up there for the downloading, mainly.  Subpoenas don’t only cost money, they tip off the other side.  But a lawyer might want to subpoena both locked social networking site data, such as postings and other information revealed only to select persons (e.g., in closed Facebook groups or to privileged “friends”), in which case we can expect a more intensive query:  Did the user have, or not have, a reasonable expectation of privacy there, as opposed to what is publicly available?

Kidding!!

More interesting could be data submitted to such websites but not at all intended for publication.  The hunt to shake down that tempting fruit could well be the somewhat easier version of subpoenaing your way through IP addresses with your friendly neighborhood ISP, considering that, like all websites, social network sites disclose that they will comply with any legal process requiring them to cough up information they would otherwise keep confidential.  Indeed, if the target for those seeking the identity of Internet identities in over the last ten years has gone from self-published websites to blogs, the move to social networking sites could give them another bite at the apple at breaking the judicial lip-lock on Internet anonymity.  Is there any reason to posit a distinction here based on the “thinner” cover and, perhaps, the more articulated “social” obligations of users under the terms of use of rich sites such as Amazon and Facebook?

Hmm.

Hat tip to the notionally un-networked, yet ubiquitous, JT!

It’s not all about us, you know.  For example:

• Stephen Nipper has a page with links to free text of the opinions in all of the past US Supreme Court patent law cases.  How awesome is that?  Ok, it would be a little more impressive if he had future decisions.  We’d even be willing to pay for those …
• John “Keeping Tabs on the TTAB®” Welch has started a companion trademark jobs blog where he will provide free listings of trademark law job opportunities — awesome!
• Ryan Gile has rounded up all the learned opinion on the Ninth Circuit’s ruling in E.S.S. Entertainment that “the First Amendment protects the makers of the video game Grand Theft Auto from trademark infringement claims brought by the owner of the Los Angeles strip club’Play Pen’ over a depiction of a fictional strip club named ‘Pig Pen’ in the video game.”  Awe.  Some.

You didn’t know this stuff?  Well, that’s what we were saying — you’ve got to get out more!

What “brand” is that?

The Rev. Dr. Martin Luther King, Jr. brand. The greed of the King “branders” was one of the earliest, and is still one of the most popular, posts on LIKELIHOOD OF CONFUSION®, and it’s rearing its really unbecoming head once again in light of “the sudden wave of T-shirts, posters and other merchandise depicting the civil rights leader alongside Barack Obama”:

Isaac Newton Farris Jr., King’s nephew and head of the nonprofit King Center in Atlanta, said the estate is entitled to hundreds of thousands of dollars in licensing fees — maybe even millions.

“Some of this is probably putting food on people’s plates. We’re not trying to stop anybody from legitimately supporting themselves,” he said, “but we cannot allow our brand to be abused.”

Their BRAND?  Wow — in 40 years from “I have a dream” to “”We cannot allow our brand to be abused.”

As the legend on the image at right says, “that change is gonna come.”  Bills, checks and credit cards gonna come, too.

Is that really the Promised Land?

We’re not libertarians at LIKELIHOOD OF CONFUSION®, but when it comes to regulation of economic resources we do kind of swing that way.  And we’re kind of stumped about what to think about the issue.  Thankfully, now there’s Eric S. Raymond’s “Net neutrality: what’s a libertarian to do“?  Excerpt:

One of my commenters asked, rather plaintively:

You mentioned net neutrality. I’ve read about this, and the opposition to it. I’ve read about this, and the opposition to it. As far as I can tell, net neutrality is more supported by liberals/democrats, while the opposition is made up more of conservatives/republicans. But for the life of me I can’t figure out which is the the more libertarian position.

Your confusion is entirely reasonable. I’ve hung out with network-neutrality activists and tried to give them what I thought was useful advice. Their political fixations didn’t permit them to hear me. Here’s a summary of the issues and one libertarian’s take on them.

Thank you, Eric.  Now we know what to do!  HT to IP.

We reported on Lego’s overreaching years ago here and here.  They tried to use trademark rights as a way to protect the design of their toy and avoid competition.  But that is not what trademarks are, much less what they are for.  And now, barring a successful appeal, a European court has ruled that the shape of a Lego brick is simply not a trademark:

Lego, the biggest toymaker in Europe, lost a European Union court decision Wednesday over trademark rights for the shape of its famous toy bricks.

The European Court of First Instance in Luxembourg rejected Lego’s challenge to a 2006 EU trademark agency decision.

Lego had argued that the knobs on top of its bricks made them “highly distinctive” and eligible for a trademark. The agency ruled the toys could not be protected because their shape served a technical purpose.

The two rows of studs on top of Lego’s toy bricks perform a “utilitarian function” and are not “for identification purposes in the trademark sense,” according to the trademark agency, which is based in Alicante, Spain. . . .

EU trademark law “precludes registration of any shape” that is “sufficient to obtain the intended technical result,” the court said. This is the law “even if that result can be achieved by other shapes.”

D-oh!

For an actual federal litigation case currently about to go to trial?  Very secret.

Likelihood of Success is my “general interest”/politics blog. Go ahead, click. Unlike LIKELIHOOD OF CONFUSION®, it has a great jawline, an aquiline nose and perfectly white teeth!

Oh, and remember — Buy Designer Skin and Australian Gold tanning lotion from my client S&L Vitamins (i.e., Body Source Online)!! It’s the way S&L and its adversaries pay their lawyers!

Remember the Google book-scan lawsuit?  No, we hadn’t either; we hardly even remember books.  But thanks to Jaded Topaz we’re reminded, as she sends along word that it’s been settled:

Here’s what happened: Yesterday, in what some say is the biggest book deal in U.S. history, Google struck a $125 million settlement with the publishing industry that will allow Google to make millions of digital books available online. The settlement, which follows two years of negotiations and requires approval by a federal court, calls for Google to pay the $125 million to settle claims from authors and publishers for its earlier digital-scanning, cover legal fees and establish a Book Rights Registry to oversee the agreement, which calls for payments to authors and publishers for use of their books online.

Interesting.  That doesn’t sound like all that much, does it?  On the other hand, if that money actually really were to go to authors — the ones who put the words in order? — as opposed to publishers, now, that would be something.  But meanwhile:

As the NYT points out, the settlement leaves unanswered the issue of whether Google’s unauthorized scanning constitute[s] fair use for copyright purposes.

Not for us:  It’s not.  Any other questions?

The lawsuit by the Naked Cowboy against candymaker Mars has been settled. Terms are undisclosed, the filing of a stipulation of dismissal with prejudice a sorry fig leaf over this tawdry affair.

What is Twitter?  How does it work?  Why on earth would a lawyer want to get involved in such a thing?

Don’t ask us.  Ask Nicole Black!

UPDATE:  You could also ask Robert Ambrogi, as LawyersUSA did!

MORE:  A contrarian view from David Giacalone, mocked but not really rebutted by Kevin O’Keefe… on Twitter.

NU, ALREADY:  Our own emerging, likely to be confused views here.

TWEET!  HELLO!  LOOKAME!  Ambrogi at least purports to sum up here.

When we were in high school — this is the late ’70’s and early ’80’s — the old-fashioned institution of the high school “talent show” was transformed into “Gong Shows,” based on the cheesy 1970’s TV hit by Jewfro pioneer Chuck Barris, now recycled, as all remotely serviceable Hollywood ideas are, for moderns. At Hightstown High School three teachers, usually crusty types, would make up the panel of judges and the likes of LIKELIHOOD OF CONFUSION® would step up and do their things. This change must have made it possible for people to do their acts and perform but it placed an early post-modern cast of cynicism and negativity on the whole thing so it was still “cool” to have a talent show.

Of course, that was then. This is now:

A fundraiser for the Freehold Fire Department that was to have been modeled on the popular 1970s television talent show has been canceled due to a trademark ownership issue.

Firefighter Sue Ann Derkach was planning the Nov. 8 fundraiser to help defray the department’s operating expenses. But Derkach said this week that the show will not take place at the Park Avenue Elementary School.

Derkach said that after the event was publicized, she received a call from the owner of the show’s trademark and was informed that the fire department did not have permission to use the name “The Gong Show.” She said she was told that all references to the show must stop immediately.

In other words, their show was “gonged.” What a country!

Imagine a world where producers and owners of TV shows, movies and the not only upload full-length copyrighted video content onto the Web in the full knowledge that it will be ripped off, but welcome the prospect?

Why not, if they can sell advertising on the programming?

MySpace and Viacom International-owned MTV Networks today moved to resolve some key online video issues by tapping a new technology that inserts advertising into any videos uploaded by users to MySpace — whether they’re authorized or not.

The deal pairs the two companies with Auditude, a start-up firm that has developed technology that can identify any uploaded professional video and allow the content owners to insert ads into the video, the companies said.

The Auditude tool can be used to add information to a video clip, along with e-commerce links that offer opportunities to buy expanded clips or merchandise related to the content.

Well there are still plenty of “why not’s,” and indeed it seems only a matter of time until someone hacks this.  But this sort of thing sure does continue change the whole landscape on how creators and promoters of copyrighted works can actually benefit, instead of battling, new forms of promotion, distribution and exhibition.  Hat tip to Andie Schwartz!

Already giddy with the power they expect to be delivered to them today, Democrats are promising to reinstate government control of public communication to insure what political appointees determine is “fairness” and balance:

Asked if he is a supporter of telling radio stations what content they should have, [Sen. Charles] Schumer used the fair and balanced line, claiming that critics of the Fairness Doctrine are being inconsistent.

“The very same people who don’t want the Fairness Doctrine want the FCC [Federal Communications Commission] to limit pornography on the air. I am for that… But you can’t say government hands off in one area to a commercial enterprise but you are allowed to intervene in another. That’s not consistent.”

Talk about consistent?  Schumer says he is “for” regulation that prohibits pornography on the air, but that “the very same people” who favor that regulation — but not him, just the other “very same people” — oppose mere “government intervention” to insure “fairness.”  Of course, the comparison is also inapt:  Pornography is not protected by the Constitution.  Political speech is.

Senate Rules Committee Chairwoman Dianne Feinstein (D-Calif.) last year said, “I believe very strongly that the airwaves are public and people use these airwaves for profit. But there is a responsibility to see that both sides and not just one side of the big public questions of debate of the day are aired and are aired with some modicum of fairness.”

We have a feeling she isn’t talking about the “fairness” with which the networks covered this year’s Presidential election.

Welcome to your new world of free speech — free only when it is “fair,” and “fair” only when Washington (and perhaps your local “dependable” state government) tells you it is.

And guess whose Washington it is now?

UPDATE:  A modest proposal to end guessing altogether (via Instapundit).

Via Denise Howell (via Facebook via Twitter, really… or is it the other way around… gosh…) Weird Al Yankovich reveals the unsurprising fact that despite its pride in bringing us many aspects of the worst popular culture has to offer, MTV has its limits in terms of free expression — when it comes to the competition:

The foul-mouthed musician swept up by MTV’s speech code is Weird Al Yankovic, whose lyrics to “Don’t Download This Song,” a tongue-in-cheek complaint about file-sharing first released in 2006 included those so-called offensive terms. (Since then, two of those sites — Grokster and Morpheus — have become inactive.)

In an e-mail message on Sunday, Mr. Yankovic wrote that he had bleeped out the names to the file-sharing sites in his song two years ago, after MTV “told me that they would refuse to air my video” otherwise. “Instead of subtly removing or obscuring the words in the track,” he wrote, “I made the creative decision to bleep them out as obnoxiously as possible, so that there would be no mistake I was being censored.”

In a world where commerce, culture and even class are so disproportionately premised on entertainment, there are some taboos that are not to be challenged.

Jews for Jesus*, a litigation-happy racket that not only bases its religion business entirely on LIKELIHOOD OF CONFUSION but for whom misrepresentation and falsehood defines its entire enterprise, has once again pushed the First Amendment in a direction that works for it and avoided legal sanction for its unethical, but legal, way of utilizing other individuals for its own ends. In Jews for Jesus v. Rapp, the Florida Supreme Court has refused to adopt the tort of false light defamation on the ground that such claims are too rife with free speech risks and add little not otherwise available to most plaintiffs in a position to benefit from it.

What did these charmers do this time?  “The gravamen of Rapp’s claim is that Jews for Jesus falsely and without her permission stated that she had ‘joined Jews for Jesus, and/or [become] a believer in the tenets, the actions, and the philosophy of Jews for Jesus.’”  The philosophy of Jews of Jesus is Messianic Judaism, i.e., a sort of Christianity comparable to schmaltz herring steeped in bacon grease, and it is fair to say that most non-Jews have no idea just how shocking such a claim can be for a Jewish person, especially an older one, to read about herself on the Internet, if it is factually false.

The court acknowledged that there could be scenarios where the tort, as defined in the Restatement, could be useful.  Read the rest of this entry »

A twelve-judge panel of the Federal Circuit has dealt the concept of business-process patents what appears to be a significant blow in In re Bilski, a case decided yesterday:

“We hold that the applicants’ process as claimed does not transform any article to a different state or thing,” the majority opinion said.

“Purported transformations or manipulations simply of public or private legal obligations or relationships, business risks, or other such abstractions cannot meet the test because they are not physical objects or substances,” added the opinion written by Chief Judge Paul Michel. Three judges dissented.

You might say business process patents hit a concrete wall.  But while you’d have a fine pun you would not be quite accurate.  As usual we defer here to Dennis Crouch, the nation’s leading patent blogger:

To be clear, the machine-or-transformation test is not a physicality test – i.e., a claim can still be patentable even if it does not recite sufficient “physical steps.” On the flip-side, “a claim that recites ‘physical steps’ but neither recites a particular machine or apparatus, nor transforms any article into a different state or thing, is not drawn to patent-eligible subject matter.” Here, the court spelled out the specific issue in mind: a claimed process where every step may be performed entirely in the human mind. In that situation, the machine-or-transformation test would lead to unpatentability. “Of course, a claimed process wherein all of the process steps may be performed entirely in the human mind is obviously not tied to any machine and does not transform any article into a different state or thing. As a result, it would not be patent-eligible under § 101.”

Which isn’t to say that “process steps [that] may be performed entirely in the human mind” don’t have their own charm.  They just can’t be patented.  Not that there’s anything wrong with that.

And as usual, Marty’s on top of it like chocolate sauce on vanilla ice cream.

Hershey’s (Hershey’s’s?) pushing of the wrapper, foil and all, is one of our regular obsessions here.  You know, someone ought to do something about these guys…

Our [ahem, adjunct] law professor days are behind us, it appears, but we’ll be giving a presentation at the Intellectual Property Law Society at the Benjamin N. Cardozo School of Law tomorrow on the topic of how intellectual property law is being used and abused in the service of anticompetitive practices.  Asked to focus on a specific industry, we threw darts at a copy of the Wall Street Journal and, wouldn’t you know it, we came up with the tanning lotion industry!

Here’s the official announcement:

The IPLS is proud to present RON COLEMAN, an IP litigator at Goetz Fitzpatrick and author of the likelihoodofconfusion.com blog, who will use a series of cases from the indoor tanning lotion industry to illustrate how IP laws can be used by incumbent businesses to try to thwart innovation and development within their field. Will the new models be allowed to bring evolution to the industry, bringing new products to market at lower prices, or will the dinosaurs prevail? The biggest question remains: what do the courts have to say about it?

When: 12 NOON, WEDNESDAY, OCTOBER 29
Where: Room 407