CLE credits are available. Contact Daniel Devine to RSVP. Though the event is free to attend, seating will be limited.

Further details are below:

The Florida Bar Entertainment, Arts & Sports Law Section presents

DEMYSTIFYING COPYRIGHTS, TRADEMARKS,

AND PATENTS (Course No. 84821)

Norma B. Howard Center Conference

BCBA Offices

1051 SE 3rd Avenue

Fort Lauderdale, FL 33316

Monday, April 30, 2012

12 noon – 1:30 p.m.

Demystifying Copyrights, Trademarks, and Patents

The speakers will be discussing common misconceptions between the different types of intellectual property, namely copyrights, trademarks, and patents.  Mr. Scott Smiley will also briefly discuss some of the recent changes to the patent laws.

Moderator: Daniel Devine, Esq., Santucci Priore, P.L., Ft. Lauderdale

Panelists:  Michael I. Santucci, Esq., Santucci Priore, P.L., Ft. Lauderdale

Scott Smiley, Esq., The Smiley IP Law Group, P.A. Ft. Lauderdale

Allison Sinclair Lovelady, Esq., Santucci Priore, P.L., Ft. Lauderdale

Lunch and refreshments will be provided.

Registration is complimentary and seats are limited to the first 50 persons who RSVP.

Please RSVP to:  Daniel Devine at ddevine@500law.com

For questions call (954) 351-7474

CLE CREDITS

General: 2.0 hours

Ethics: 0 hours

CERTIFICATION PROGRAM

(Maximum Credit: 2.0 hours)

Intellectual Property: 2.0 hours

Corporate EASL Sponsors ($1,000):

Greenberg Traurig P.A.

Individual EASL Sponsors ($100):

Daniel Devine

Steven E. Eisenberg

Joseph Z. Fleming

Allison Sinclair Lovelady

Michael I. Santucci

Joseph V. Priore

Elliot Zimmerman

The phrase march Madness actually began use as early as in 1939 when the term was included in a poem about the March tournament. The Illinois High School Association (“IHSA”) later applied it to their annual basketball tournament. It was billed as the premier high school tournament of the United States. It was even broadcast on national television. The IHSA filed for federal registration in the early 1990s, and received protection a few years later.

As they included more teams, the event grew in notoriety. In the early 1980s a Chicago sports caster began referring to the event as “March Madness” and it stuck. Importantly, the term was widely applied to the event by the public before the NCAA ever used it themselves. So when the IHSA filed for trademark of the phrase March Madness, the NCAA objected under their common law usage. The IHSA then filed suit against GTE Vantage, Inc., which was developing a basketball sport video game, licensed by the NCAA, called “NCAA Championship Basketball”. The words ‘March Madness’ were included on the cover and in the game itself.

This was a case of reverse confusion. The NCAA was the more recognizable establishment than the IHSA so the trademark became associated with them by the public. Even though the IHSA used the term far longer than the NCAA, they worried that their trademark would suffer brand confusion, or their tournaments would be misinterpreted as sponsored by the NCAA. Normally the senior user of a mark would stop the junior from applying it. But when the case came to court, the judge ruled otherwise. The Central District of Illinois judge decided the IHSA’s brand had become diluted by the NCAA. Its connotation created by the public sphere made a ‘dual-use term’ that applied to both users equally. The IHSA couldn’t control what the public applied the term ‘March Madness’ to, no matter how much it might damage their brand.

Forced to share the mark, the two organizations eventually created a limited liability corporation, the Match Madness Athletic Association (“MMAA”), to control the trademark. Both partners were made permanent licensors. The MMAA has protected the term “March Madness” since in court cases against other prospective sporting events, car sales, and website name infringement. In latter cases they found from their focus group that 83.7% of people had heard of March Madness and 70% associated the term with basketball.

Though the mark is strong in popular culture, it’s important to remember how it can serve as a wider lesson. Do not let your trademark lose its public significance, and take all efforts to make sure the public is aware of its real intention and application. Allowing your trademark to become public domain or synonymous with another product is self-defeating. Just like how picking teams for your bracket based on the ferocity of their mascots doesn’t do you any good and is self-defeating. Or ‘self-defeating’ like Florida State. Or Duke. You get the picture.

According to reports, the federal suit additionally targets the Swap Shop landlord and principal company for turning a “blind eye” to the vendors selling knockoff goods.

Just last year, the Broward Sheriff’s Office and Federal Immigration and Customs Enforcement completed an undercover operation which ended in the seizing of thousands of counterfeit goods from the Swap Shop.

Coach is generally known for aggressive policing of its brand and Trademark and for filing hundreds of lawsuits against alleged counterfeit sellers and manufacturers. The past few years have also shown a surge in couterfeit crackdowns by many luxury brands.

The National Mortgage Settlement Agreement set funds aside to benefit qualifying homeowners. There are different ways for homeowners to qualify, and various terms of benefit.  More than $8 billion in relief is available in Florida, in the form of loan modifications, refinancing, and restitutions for foreclosed homes. Only mortgages with Citi, Bank of America, Ally/GMAC, JP Morgan Chase, and Wells Fargo will qualify. No mortgages backed by Fannie Mae or Freddie Mac will be accepted. This may change from five banks to nine banks at a later undecided date, which would raise the amount available to states and homeowners. All states except for Oklahoma qualify.

Out of Florida’s $8.4 billion, $7.6 billion will be paid as loan modifications, including principal reductions.  $309 million promised for refinancing underwater mortgages. Lenders will pay $170 million to people who lost their homes due to foreclosure from Jan. 1^st 2008 through Dec. 31^st, 2011, if they qualify. These payments will range from $1,500 to $2,000 on average.

The settlement promises immediate aid to homeowners needing loan modifications now but until more details are released, it isn’t clear how much banks will really help homeowners and when the help will come through.

People who lost their homes to foreclosure will be contacted by a national settlement administrator. They can receive up to $2,000. The exact amount will vary by qualifications and number of payments filed for. Over 750,000 are expected to file. These restitution payments will not require the person filing to waive the right to other possible claims against the servicer or lender.

The OCC (Office of the Comptroller of the Currency) supplies an independent review for foreclosures dated from January 1, 2009, to December 31, 2010. The exact amount of money borrowers can receive has not yet been determined. Again, it is possible to seek restitution from both the National Mortgage Settlement Agreement and the program described above through OCC. If you’d like to learn more, visit their website at here, or speak with your attorney.

Homeowners behind on mortgage payments may qualify for a principle reduction to their mortgages. They must owe more on their mortgage than their home is worth and be behind on payments or at risk of imminent default due to impending circumstances. The average payout for principle reduction is estimated to be around $20,000 per household.

Homeowners who are current, but struggling to make payments, may also qualify for a refinance if their home value is exceeded by the mortgage amount.

The first step has been completed, which was to choose an administrator for the settlement. President Obama selected Joseph Smith, formerly North Carolina’s bank commissioner. Over the next six to nine months he will work along with the various attorneys general and mortgage services to identify homeowners eligible for the immediate cash payments, principal reductions, and refinancing. Those eligible will receive letters. The settlement will be executed over the next three years, with penalties for banks who do not meet certain checkpoints.

Sadly, borrowers will still have to wait and see if they qualify. If they have not received a letter in the next year, their lending bank should be contacted and asked why they do not qualify. Anyone experiencing hardship and troubles with their mortgage should contact their attorney for expert advice. Losing one’s home to foreclosure is a traumatic

Some businesses will improperly use the trademark registered symbol for a wide range of reasons. Most often, they’re merely mistaken, or innocently using the symbol improperly. But to do so deliberately is fraud. As per Section 906.02 of the Trademark Manual of Examining Procedure:

“Improper use of the federal registration symbol that is deliberate and intended to deceive or mislead the public is fraud. See TMEP §906.04. However, misunderstandings about use of federal registration symbols are more frequent than occurrences of actual fraudulent intent.”

Some of the most common reasons for improper use that do not indicate fraud are:

• Confusion between application of trademark and copyright notices. For copyrights the © should be applied before publication.
• For trademarks many people mistakenly begin applying ® to their product while their trademark is still only an application. A trademark must be fully registered by the USPTO before ® can be used.
• Mistaken belief that registration in foreign country applies in United States, as well.
• Registration for only a portion of the mark
• Registering the mark for other goods

The USPTO prefers not to penalize persons who unintentionally apply the registration symbol incorrectly, but the USPTO is well within its right to do so. If the USPTO were to pursue a person who incorrectly applies a registration symbol, that person would have to prove their innocence and unintentional fraud. One may be found guilty of fraud, unclean hands, or suffer denial of registration.

If the USPTO decides that fraud was committed deliberately, a trademark applicant’s request for relief may be barred under the doctrine of ‘unclean hands’ and evidence of intentional misuse may be used to deny a trademark registration.

Do not allow yourself to be penalized for unintentionally committing fraud. Always speak to an attorney when filing for a trademark registration, or when considering doing so. If not, you may place your brand, or company at serious risk.

The AIA currently provides an applicant with two options when securing a patent. The first option requires the applicant to pay the cost of disclosing relevant information throughout the initial examination of patentability. The probable effect of this first option is likely to result in more expensive and time consuming prosecution as well as permit a narrower amount of claims. The second option provides an applicant with the choice of whether to pay the cost of disclosing relevant information throughout the initial examination of patentability. This option is likely to result in a cheaper and quicker prosecution as well as permit a broader amount of claims. The difference in the secondary effects of the two options can be found in option two, which throws the cost of information about patent scope and patentability from the applicant to “higher cost providers” such as the patent office, courts, and competitors. The problem with the AIA lies within the second option.

Before the program, patent law had a supplement to prevent the possible harmful effects of using option two, the inequitable conduct doctrine. This doctrine forced a “low probability but high cost sanction” on an applicant caught choosing the second option. However, under the new AIA procedure, patent applicants can choose not to disclose relevant information of patentability despite their knowledge of such information throughout the initial examination. Therefore, the patent applicants are obtaining a questionable patent at best and, depending on strategy, may disclose the information later on through in what Representative Waxman referred to as a “get out of jail free card” in his statement to Congress on June 24, 2011. This in turn averts the influence of inequitable conduct fundamentally and even though there remains the possibility of a criminal sanction, its effectiveness is skeptical given the extreme level of conduct that seems to be required in order to impose such a sanction.

By reducing the risk in choosing option two, the program now makes this option more appealing to the patent applicant. For example, if a patentee encounters a competitor who would like to take the matter to court subsequent monetization of a patentee’s broader claims, the patentee may go on the defensive and call upon a supplemental examination. The benefits of using a supplemental examination reveal its appeal to patent applicants as well as the risks associated with choosing an option two.

For one, it permits a patentee to erase the behavior they carried out during the initial examination, thus removing at least one option for challenging the patent, and therefore strengthening the patent by increasing the chances of it not being found unenforceable. Secondly, supplemental examination allows for a patentee to place an increased amount of “challenging art” into the file before litigation. As a result, the patentee benefits from both “patent office externalities that favor the allowance of claims” and “from judicial norms that express a reluctance to invalidate claims based on art that the patent office considered in connection with the patent.” Lastly, competitors will be unable to determine which choice a patent applicant made, whether it was option one or option two, therefore compromising their ability to respond strategically. Consequently, the inability of competitors to distinguish between option one and option two will make it improbable that an option one patentee will get the benefit of the cost acquired by selecting that option.

With this seemingly increased risk of augmenting the number of low-quality patents through AIA’s new procedure, an already well known relationship between low-quality patents and competition surfaces. The outcome being that low-quality patents can cause competition to be pricier due to the possibility of competitors having to pay “supramarginal” cost prices owed to patents that should have never been issued. Furthermore, the cost of research and development could also increase due to low-quality patents because future innovators may be required to pay rents on patents that should have never been issued. Finally, there is a possibility that low-quality patents would make market entry increasingly difficult and costly because new applicants may be also be required to pay rents for patents that never should have been issued, and have to defend “nuisance suits” against such patents, which may cost up to “four to five million for middle of the road cases.”

Lesser known but naturally flowing from logic is that in a world that permits supplemental examination there is a possibility that low-quality patents may also reduce capital investment grounded on a patent or small number of patents. This is because before supplemental examination is invoked, all patents should be thought of as slightly less likely to be enforced successfully because they are slightly more likely to be viewed as invalid and therefore worth. Therefore, in a world that permits supplemental examination “the value of a patent, or a small portfolio, such as a small business or a start-up might own, is worth marginally less” and investors would therefore be inclined to pay less for it.

On the other hand, the opposite effect is more likely to occur with firms that hold large portfolios of patents in a supplemental examination world because, despite the possibility that their portfolios could end up being slightly less valuable, if those portfolios remain large then there should be good chance of enforcing relevant patents. Therefore, large firms should be able to obtain lower-priced patents as well as enforce more of them. As a consequence, these larger firms may be preferred over the smaller firms and start-ups that attempt to enter a market in such a world.

In conclusion, possible exploitation of the AIA’s new procedure may result in the reduction of the quality of information available to the patent office when it is making its determination on whether to issue a patent, therefore perhaps increasing the issuance of more low-quality patents, and thus revealing risks that were previously non-existent. This is largely due to the supplemental examination alternative that is available to a patentee when choosing an option. Therefore, until further analysis of the AIA is made and its overall effects on the patent system are uncovered, the problem will remain.

For further reading, the full article can be found here.

Google’s strategy isn’t entirely new. Other companies have created open-sourced software before, and plenty others focused on making operating software for phones as well. But none of them combined the two, along with Google’s overall vision for unified devices and software. Android allows independent developers to make their own applications, without Apple’s app rules—which number well above a hundred. This allows higher innovation in the field, but with less regulation comes less safety for the user who chooses unverified applications. Despite these risks, and Apple’s larger app store, the Android operating system has steadily risen in market share. It currently makes up 53% of all devices, compared to iOS’s 29%.

But Apple is fighting back.

As reported recently in the Wall Street Journal[1], patents are taking a new role in litigation. Many patent lawyers formerly involved in corporate defense are now working for patent holding companies. These companies purchase intellectual property, and then seek earnings from their purchased intellectual property through litigation. Even at traditional corporate level, patents are being redefined. They were often viewed as a shield, protecting a company’s or inventors’ intellectual property and profits. But they’re finding that they’re also incredible tools for stymieing competition and making significant profits. TiVo has recently received hundreds of millions of dollars from Dish Network, AT&T, and EchoStar by claiming infringement on patents for DVR technology. They still have further lawsuits open against Verizon and Microsoft, with already existing long term licensing agreements with Comcast and DirectTV. Companies have responded by buying up patents in a bid to protect themselves, and earn revenue. Google spent $12.5 billion purchasing Motorola, as it had only a few thousand before, including those bought from IBM. Apple spent $4.5 billion on buying patents from Nortel. Unwilling to flat out sell its own patents, Microsoft has extensively licensed out its intellectual property, and now has 70% of Android running smart phones under its patent umbrella.

On the offensive against Google, Apple opened up lawsuits against many of Google’s hardware partners, such as Motorola, Nokia, and HTC. At the same time, though, Apple is being sued by Kodak, Motorola, Nokia, and various other technology patent holding companies. Motorola is suing, and being sued by, Microsoft; while Nokia, Samsung, Sharp, LG, Hitachi, and Toshiba all go at it. According to The Economist, mobile-phone related lawsuits have risen by 20% annually since 2006. Even more difficult to understand is exactly what Apple is suing over, and what their recent gains have actually been.[2]

In James Grimmelmann’s article[3], “Owning the Stack: The Legal War to Control the Smartphone Platform”, he describes how mobile technology is built in stacks of service providers, software, and hardware. At the bottom lie the networks, then the hardware and devices, the operating systems and how they interact with the other two come next, which culminates in the software written for the operating systems. That software would include the apps and programs that we easily recognize and utilize. Lawsuits in the field of mobile devices can be horizontal in nature: suing people on the same technological plane—such as two app developers suing each other for trademark infringement. Or lawsuits can be vertical in nature, claiming their own technology as the basis for other companies’ devices or software. The latter is exactly what Apple has attempted to do. Apple’s lawsuits are generally  over various extremely basic technologies, looking to shake down other companies for significant amounts of money—or put them out of business altogether.

Ultimately targeting Google itself, Apple has declared war on the ‘Open Handset Alliance’ with the lawsuits against HTC and Motorola.  This loosely applied term refers to a group of companies that have declared themselves proponents of open-sourced technology, and consists of companies like HTC, Sony, Dell, Intel, LG, Samsung, T-Mobile, Motorola, and Nvidia. Apple even made some gains against Samsung in Germany, where it temporarily blocked the release of Samsung’s Galaxy tablet. Their lawsuits against HTC and Motorola are even more interesting. Apple sued both companies through the U.S. International Trade Commission, where a positive verdict would ban the infringing technology from being imported to the United States. In early January, though, Motorola was ruled not to be infringing on Apple’s patents. They responded in celebration by opening a new lawsuit against Apple, this time in Florida. The case had already been tried, with success, in Germany a few months prior.

Apple’s case against HTC over ten alleged patent infringements in the US ITC was far more successful. Though all but two claims were ultimately thrown out, HTC must still race to rework their devices sans the infringed technology. HTC has until April 2012 to make the necessary changes, which they insist is entirely feasible while still retaining their products’ functionality. One might assume they’re also looking into filing another patent lawsuit of their own.

 The action figure consisted of life-like properties of Jobs, including wrinkles, hair, glasses and an apple. The figure also included removable hands, which also featured a replica of his wedding band.

 Since the date the figure was placed for sale, Jobs fans have been scrambling to secure their purchase. The website also indicated that the figurine was set to ship worldwide in February. It didn’t take long, however, for the Jobs family and Apple, Inc. to pressure In Icons to stop the promotion and sale of the item. An outline of the figure’s features is still up on the In Icon website: http://inicons.com/order.html.

 Due to the alleged pressure from Jobs and Apple attorneys, In Icon has since covered their website with an open apology and tribute letter to Jobs fans and those that have pre-ordered the figurine. Based on the public’s positive reaction to the figurine, the question remains whether any of Jobs team or Apple will create their own version of a Jobs memorabilia.

 You can read the recent In Icon letter here.

The goal of the program was to allow the borrower and lender one final chance at finding compromise before the case came before a judge. But, for many reasons, the system failed. A review published in September 2011 illustrated the difficulties in reaching agreement. While civil court mediations are often successful, with a near 70 percent conclusion rate, the foreclosures lagged behind. The state of Florida had a 3.6 percentage mediation success rate. In Palm Beach County: only 1.6 percent. Other sources showed that 67 percent of all mediations came to an impasse with no agreement, with only a 4 percent success rate overall.

Much of the low rate of success can be attributed to the fact that many borrowers simply could not be located. 59 percent of eligible borrowers were unreachable. Only 14 percent of those who were contacted opted to participate. Palm Beach County had a 60 percent rate for unfound borrowers, while retaining a higher 29 percent attendance rate.

It seemed that the system was doomed to fail from the beginning. Many Lenders saw the mediations as just another step in the lengthy foreclosure cases, rather than focusing on compromise.  They purported that before the foreclosures ever came to trial there would be earlier attempts to find some sort of agreement or modification to their loan structure. One South Florida foreclosure defense attorney, as quoted in the Palm Beach Post, agreed.  ”You have someone on the phone from the bank and the only thing they have is a computer monitor in front of them and the only thing they can do is modify,” he said. “It’s not mediation; its modification or bust.”

One big wrench in the mediation process was that homeowners may not qualify for these standard ‘modifications’ to begin with, while the lender had little incentive to derivate from its normal payment plans. Homeowner advocates also complained that many lender representatives weren’t authorized to make changes in the first place. In October, a committee of independent judges recommended an end to the program. All in all, the close of the program is of little probable importance. Avenues for mediation are still open, while the lengthy process for foreclosure mediations has been marginally streamlined. The program failed not for want of intent, but for lack of justification based on the low success rate.

As always, if you are in foreclosure or in the risk thereof, contact your attorney immediately. The offices of Santucci Priore, P.L. are always willing to aid any homeowner in their time of need.

A link to the full order signed by Judge Charles T. Canady can be found here.

Regardless of your views about the Iraq war, take time to reflect over and appreciate your holiday break, and the fact that our soldiers are finally returning home after years in Iraq, from brutal missions which are now concluded.  Think about Lieutenant Alvin Shell’s story the next time you find yourself complaining about the way your food is cooked in a restaurant, complaining about the economy or about your general lot in life.  Think about Lieutenant Shell the next time you take on a new task and ask yourself whether you are truly doing your best.  Be grateful for what you have, regardless of how little or insignificant.  Be grateful for true heroes like Lieutenant Alvin Shell.  We need more heroes.

Welcome home troops.  Happy Holidays to all.