by Justine A. di Giovanni
In a March, 2011 white paper, the Obama Administration proposed changes to existing law that would enact harsher penalties for copyright infringement, as well as for pharmaceutical drug counterfeiting. Though the regulations increase the penalties for copyright infringement across the board, the most interesting and controversial aspects of the recommendations are those which apply to internet intellectual property law and the methods law enforcement may use to unearth intellectual property crimes.
The Administration recommends that the law be clarified to state that, “in appropriate circumstances,” unauthorized live streaming of intellectual property should be recognized as a felony. In addition, the Administration suggests that law enforcement should be given the authority to request a wire tap in cases of suspected criminal trademark and copyright infringements. These new regulations strongly tighten the existing noose of the law around the necks of intellectual property criminals. The serious tone struck by the administration is emphasized by the wire tapping recommendation, which, before this point, was a procedure only deemed appropriate in the investigation of a specific set of serious crimes. Many individuals are concerned that such regulations have a high potential for governmental abuse, but intellectual property right-holders see the recommendations as increasing protection for their valuable assets.
Other recommendations outlined in the paper relating to intellectual property law include:
- increasing the statutory maximum for “economic espionage” from 15 years in prison to at least 20. Numerous other property offenses have higher statutory maximums: mail fraud is punishable by up to 20 years in prison, bank fraud 30, smuggling goods 20 and counterfeiting currency 20. These are all tangible property crimes, however, not intellectual. Upping the maximum to 20 will make “economic espionage” via intellectual property crime a more serious offense (base offense level 7 versus level 6).
- increasing the U.S. Sentencing Guideline range to include harsher punishments for:
- the theft of trade secrets, including those transferred or attempted to be transferred outside of the U.S.
- trademark and copyright offenses when infringing products are knowingly sold for use in national defense, national security, critical infrastructure, or by law enforcement
- intellectual property offenses committed by organized criminal enterprises/gangs or that risk death or serious bodily injury
- those offenses involving counterfeit drugs (even when those offenses do not present risk of bodily harm)
- repeat intellectual property offenders
- increasing the U.S. Sentencing Guideline range to include harsher punishments for:
- authorizing the Department of Homeland Security (DHS) and its component U.S. Customs and Border Protection to share pre-seizure information about products and devices with right holders to help DHS to determine whether the products are infringing or the devices are circumvention devices; and
- creating a right of public performance for copyright owners for sound recordings transmitted by over-the-air broadcast stations which will allow copyright owners to obtain overseas royalties that are currently denied to them.
You can find the PDF text of the full white paper here: http://www.whitehouse.gov/sites/default/files/ip_white_paper.pdf
Facebook has grown decidedly litigious this past year in suing other companies that it claims are confusingly similar to its very famous ‘Facebook’ mark. While this past Summer it was Teachbook that was in trouble with Facebook’s heavy hitting legal counsel in a lawsuit, now their latest target is Lamebook, a site that hosts “the funniest and lamest of facebook.”
Facebook continues to make the claim that their mark is so strong that anyone who uses the term “book” in connection with social networking services will confuse consumers into thinking that the potential infringer is affiliated with Facebook. What makes this new case interesting is that Lamebook does not offer any social networking services, but rather entertainment services. In order to be successful in its claims, Facebook must either show that marks containing the suffix “book” in entertainment services in addition to networking services infringe on Facebook’s marks, or that Facebook’s marks are so famous that even a substantially different mark such as ‘lamebook’ dilutes their mark.
Lamebook and Facebook had been engaging in discussions regarding possible infringement for some time before these companies took their issues to court. Interestingly enough, it was Lamebook that first initiated a lawsuit by asking the US District Court for the Western District of Texas to declare that their use of ‘Lamebook’ did not infringe Facebook’s trademark. Facebook responded by filing its own lawsuit in the US District Court for the Northern District of California claiming that Lamebook is liable for trademark infringement, trademark dilution, and unfair competition.
Lamebook has file for registration of their mark with the USPTO and their application is still pending. Regardless of their USPTO application, it will be the result of these lawsuits that will determine whether Lamebook will be able to keep its name.
The US Justice Department filed an Amicus Brief with the US Court of Appeals for the Federal Circuit that surprised many of the people that have been closely following the case (link to full brief here). What surprised people was not that the brief was filed, but that it supported the party challenging the patents and goes against the policies of the US Patent and Trademark Office (USPTO) as well as decades of case law on the subject.
The Justice Department made the claim that human genes in their natural isolated state are unacceptable for patent protection because the genes are not human-made and thus are more akin to a discovery than an invention. This brief has received its fair share of criticism. While this will certainly have far-reaching effects on the bio-medical industry, it is not as far reaching as it may at first seem. While the brief states that the Justice Department feels that patents shouldn’t be granted for isolated genes, many of the valuable patents dealing with genes actually refer to scientific processes or altered genes, which the Justice Department states should be able to receive patent protection.
Many of those who oppose the patenting of genes say that it will stifle the ability of new medical techniques, such as the ability of a person to have their personal genome read and reviewed for various diseases. Proponents of gene patents claim that the ability to patent genes fosters innovation in the field by ensuring that those who do research will be compensated for their work.
Currently the USPTO is not following the opinion of the Justice Department as stated in their Amicus Brief, but with such a respected authority coming down on this side of the argument the industry is on very uncertain ground in their ability to receive patent protection in the coming years.
WILLIAMSBURG, VA The law firm of Bambi Faivre Walters, PC hires Antonio G. Vann to join its Williamsburg, Virginia, legal team. Vann focuses his practice on trademark, unfair competition, and copyright law as well as business and commercial transaction law. He offers services to assist with protecting, commercializing, and enforcing intellectual property assets.
In this Internet era, Vann understands the value of protecting and rewarding creative works as well as balancing economic and business interests. He counsels clients on the role of intellectual property in market recognition as well as managing and leveraging these assets. Vann’s legal background lends expertise and strengthens the firm’s copyright, trademark, trade secret and complex business litigation practice areas.
Vann received his B.A. in political science from Hampton University and attended The John Marshall Law School in Chicago, IL, receiving his J.D. with specific instruction in the area of intellectual property law. Prior to receiving his law degree, he worked for several large law firms in the Washington, DC area. Vann has over eight years of experience in the area of trademarks and copyrights and has worked with businesses, individuals, federal government, and others.
Antonio Vann is admitted to the Virginia State Bar (VSB No. 79765). He is a member of several professional organizations including the American Intellectual Property Law Association (AIPLA) and the Virginia State Bar Intellectual Property Law Section.
Mr. Vann is a Virginia native, born and raised in the Hampton Roads area. He is a graduate of Maury High School and remains active with the Boys & Girls Clubs of Southeast Virginia. If your organization is interested in discussing intellectual property or complex business issues, please feel free to contact the firm at 888-388-9614.
Filed under: Inventor & Entrepreneur Updates, Patent Articles
The United States Patent and Trademark Office (USPTO) has a pilot program that allows inventors to “speed up” the patent application process for examination of green technology inventions, including:
- Greenhouse gas reduction and/or environmental quality;
- Energy conservation, and
- Development of renewable energy resources.
Currently, an application pertaining to environmental quality, or energy conservation, development of renewable energy resources or greenhouse gas reduction will not be advanced out of turn for examination unless it meets the requirements of the accelerated examination program. Under the Green Technology Pilot Program, applications pertaining to environmental quality, energy conservation, development of renewable energy, or greenhouse gas emission reduction, are advanced out of turn for examination without meeting all of the current requirements of the accelerated examination program (e.g., examination support document). The USPTO will accept only the first 3,000 petitions to make special in previously filed new applications, provided that the petitions meet the requirements set forth in the notice published on December 8, 2009, in the Federal Register.
If you have questions about the Green Technology Pilot Program, please feel free to email email@example.com or call 888-388-9614.
A copy of the Petition application is attached. USPTO Petition to Accelerate Green Tech form sb0420
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