Intellectually Legal: Technology | Law | Business

“Why this Kolaveri Di” – all about Slogans, Taglines, Branding, Trademarks and Viral Marketing !! #fb

Rahul Dev — Wed, 18 Jan 2012 11:33:27 +0000

“Why this Kolaveri Di” Song Lyrics Filed by Sony Music Entertainment India For Trademark Protection in India

Last month, when I was browsing Facebook, I saw one video being shared by many friends, ”Why this Kolaveri Di?’ I really didn’t get it initially. The video seemed to be Tamil. After doing some research, I found out that Song was officially released on 18 November, and then it spread like a fire through social networking sites. Within first week of release, it received 1.3 million views on YouTube, and roughly more than 1 million shares on face book. Interestingly, this is the first Tamil song to be premiered on MTV India.

Recently, I came to know that Sony Music Entertainment India, which recorded the Tamil-English song that has become an international YouTube hit, filed for trademark registration of ”Why this kolaveri di” last month. While searching the details of trademark registration, I found out very interesting facts:

1. Sony Music Entertainment India has filed for word mark protection of the song lyrics in Class 9 and Class 41, with description of goods and services as,

“THE TRADE LOGO TO BE USED FOR EXPLOITATION OF THE CINEMATOGRAPHIC CONTENTS THROUGH PHYSICAL FORMATS LIKE COMPACT DISCS, RECORDING DISCS, MUSIC CASSETTES, SD CARDS AND OTHER FORMS OF MAGNETIC DATA CARRIERS AND NONPHYSICAL/DIGITAL PLATFORMS THROUGH TRANSMISSION OR REPRODUCTION OF SOUND AND/OR IMAGES”, and

“ENTERTAINMENT BUSINESS OF TALENT DISCOVERY, TALENT MANAGEMENT AND EXPLOITATION OF THE FILM AND NON-FILM CONTENTS AND MATERIAL ON PHYSICAL PLATFORMS AND NON-PHYSICAL/DIGITAL PLATFORMS”, respectively.

The trademark application, filed under Class 9 and Class 41, will allow Sony Music Entertainment India to launch one or more products such as recording discs, music cassettes, compact discs, and SD cards, as well as film and non-film entertainment content and talent discovery programs under the brand name of the song lyrics “Why this Kolaveri Di”. If this trademark “Why this Kolaveri Di” gets registered will stop the competitors from using this tagline “Why this Kolaveri Di” for goods falling in Class 9 and services falling in Class 41.

The image filed by Sony Music Entertainment India for trademark protection is:

2.More interestingly, another company, Wunderbar Films Private Limited, has filed for exactly same word mark protection in Class 41, barely 8 days after Sony’s trademark applications,with description of goods and services as “EDUCATION; PROVIDING OF TRAINING; ENTERTAINMENT; SPORTING AND CULTURAL ACTIVITIES.”

The image filed by Wunderbar Films for trademark protection is:

Now, it is to be seen whether this spans out to be another case of trademark opposition and / or trademark infringement.

Apart from trademark protection, this Kolaveri song is an excellent example of Viral Marketing. The video song has shown “Making of Kolaveri Di” i.e. how this song is made by the Kolaveri team. It shows Dhanush practising the song, and Aishwarya, Shruti Hassan are sitting along with him to listen the song. Also, the sound and music is refreshing and pleasant, as it is composed by 21 year old young Anirudh Ravichander. The song results from an association of various celebrities, as it is sung by Dhanush, who is son-in-law of RajaniKant, while the movie “3” is directed by RajaniKant’s daughter Aishwarya RanajiKant. Shruti Hassan is co-star actress with Dhanush in the movie “3”. She is daughter of Kamal Hassan, and a classical dancer and famous Tamil actress. The song was quickly appreciated by Amitabh Bachchan when he stated it as a ‘mind blowing’ song on his blog and twitter.

Generally, viral marketing, viral advertising, or marketing buzz refer to marketing techniques that use pre-existing social networks to produce an increase in brand awareness or to achieve other marketing objectives (such as product sales) through self-replicating viral processes, analogous to the spread of viruses or computer viruses. It can be delivered by word of mouth or enhanced by the network effects of the Internet. Viral marketing may take the form of video clips, interactive Flash games, advergames, ebooks, brandable software, images, text messages, and the like.

There are various advantages of Viral Marketing, and the best part is that you can take benefit of this marketing technique without expensive software or technological expertise, and Viral Marketing involves giving away information to your customers and including back links to your site.

The video of Kolavari song may be seen here:

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PIPA and SOPA: Anti Piracy Bills; Controversy surrounding them; Wikipedia, Google Blackouts

Rahul Dev — Tue, 17 Jan 2012 23:09:31 +0000

In past few days, cyber world is hit by two buzz words, PIPA and SOPA. So I took some time out and did a research on these two topics.

PIPA means The PROTECT IP Act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011), also known as Senate Bill 968 or S. 968, which is a proposed law with the stated goal of giving the US government and copyright holders additional tools to curb access to “rogue websites dedicated to infringing or counterfeit goods”, especially those registered outside the U.S. The bill was introduced on May 12, 2011 by Senator Patrick Leahy (D-VT) and 11 bipartisan co-sponsors. The Congressional Budget Office estimated that implementation of the bill would cost the federal government $47 million through 2016, to cover enforcement costs and the hiring and training of 22 new special agents and 26 support staff. The Senate Judiciary Committee passed the bill, but Senator Ron Wyden (D-OR) placed a hold on it. The PROTECT IP Act is a re-write of the Combating Online Infringement and Counterfeits Act (COICA), which failed to pass in 2010. A similar House version of the bill, the Stop Online Piracy Act (SOPA) was introduced on October 26, 2011. More details on PIPA may be read by clicking here.

The Stop Online Piracy Act (SOPA), also known as House Bill 3261 or H.R. 3261, is a bill that was introduced in the United States House of Representatives on October 26, 2011, by House Judiciary Committee Chair Representative Lamar Smith (R-TX) and a bipartisan group of 12 initial co-sponsors. The bill, if made law, would expand the ability of U.S. law enforcement and copyright holders to fight online trafficking in copyrighted intellectual property and counterfeit goods. Presented to the House Judiciary Committee, it builds on the similar PRO-IP Act of 2008 and the corresponding Senate bill, the PROTECT IP Act.

The originally proposed bill would allow the U.S. Department of Justice, as well as copyright holders, to seek court orders against websites accused of enabling or facilitating copyright infringement. Depending on who makes the request, the court order could include barring online advertising networks and payment facilitators from doing business with the allegedly infringing website, barring search engines from linking to such sites, and requiring Internet service providers to block access to such sites. The bill would make unauthorized streaming of copyrighted content a crime, with a maximum penalty of five years in prison for ten such infringements within six months. The bill also gives immunity to Internet services that voluntarily take action against websites dedicated to infringement, while making liable for damages any copyright holder who knowingly misrepresents that a website is dedicated to infringement.

Proponents of the bill say it protects the intellectual property market and corresponding industry, jobs and revenue, and is necessary to bolster enforcement of copyright laws, especially against foreign websites. They cite examples such as Google’s $500 million settlement with the Department of Justice for its role in a scheme to target U.S. consumers with ads to illegally import prescription drugs from Canadian pharmacies.

Opponents say that it violates the First Amendment, is Internet censorship, will cripple the Internet, and will threaten whistle-blowing and other free speech actions. Opponents have initiated a number of protest actions, including petition drives, boycotts of companies that support the legislation, and planned service blackouts by major Internet companies scheduled to coincide with the next Congressional hearing on the matter. The House Judiciary Committee held hearings on November 16 and December 15, 2011. The Committee was scheduled to continue debate in January 2012. More details on SOPA may be read by clicking here.

Originally, the majority of technology corporations that put their input into these bills, were in support of it. Companies like Apple, Intel, Corel, Dell, Microsoft, Adobe, and 23 other big name tech companies are supporters under the BSA(Business Software Alliance). However, there is still hope in the realm of big name support of tech giants. Two of the biggest in Mozilla and Google, have gone public with their issues with these bills and their reasons why they can no longer offer their support after further research was done.

Mozilla is strongly against both acts because of its use of DNS filtering in both. Mozilla, like the majority of the tech world, believes that by using DNS filtering this will open up more security risks and slow down the system’s up and coming extension DNSSEC.

Some of the dangers posed by PIPA and SOPA include enabling U.S. government agencies and private companies to hunt for any little bit of possible copyright violation and will make it the blog owners responsibility for everything that is displayed on their site, including the comments of visitors. For example, if an article is published with a logo, or trademark, of corporation and that corporation doesn’t like that it is being put on display on the site. Even though the author of this article could have used it as a teaching method, critique, praising good design, or

anything you can think of, it doesn’t matter and these acts would be direct enough to give an area for attack.

As a part of the Protest Movement, several major websites, including Wikipedia, Reddit and TwitPic, said they would “go dark” on Wednesday, January 18, to show their opposition to the two bills in Congress. (A list of participants is at SOPAStrike.com.) Read more about Wikipedia protest here.

If you visit one of the protesting sites Wednesday, you may get an error message, but they’re more likely to post messages urging you to join them in opposition to SOPA and PIPA.

Others, such as Facebook, YouTube and Twitter, have not said they would join. Twitter’s CEO, Dick Costolo, made a widely-cited tweet on Monday: “Closing a global business in reaction to single-issue national politics is foolish.”

Google today said it would remain online, but show its opposition to the bills with a link Wednesday on its home page in the U.S. “Like many businesses, entrepreneurs and web users, we oppose these bills because there are smart, targeted ways to shut down foreign rogue websites without asking American companies to censor the Internet,” said a Google spokesperson. Read more about Google protest here.

SOPA, the House bill, is on hold for now, and a hearing to discuss how it would work technically has been delayed. In the Senate, a vote on PIPA is still scheduled for Jan. 24, but it’s a procedural matter (a Senate staffer, asking not to be named, said it’s “on whether to debate debating the bill”). Sen. Patrick Leahy, the Vermont Democrat who was one of the original sponsors, has said he would like to amend the bill.

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Public Notice Regarding Trademark Prosecution of Indian Trademark Applications by Controller General of Patents, Designs and Trade Mark

Rahul Dev — Tue, 10 Jan 2012 22:42:03 +0000

Public Notice Regarding Information to be furnished clearly in the Trade Mark Application(s) for Proper Trademark Prosecution of Indian Trademark Applications by Controller General of Patents, Designs and Trade Mark

The Controller General of Patents, Designs and Trademarks has issued a Public Notice dated 9th January, 2012 inviting the attention of Trademark Applicants and/or Applicant’s Trademark Agents in India regarding proper information to be furnished clearly while filing Trade Mark Application at the Indian Trademark Registries.

Currently, the Indian Trade Mark Registries are receiving Trademark Applications with lot of deficiencies which subsequently makes the Prosecution of Trademark Application(s) in India difficult and time consuming.

The Indian Trademark Application(s) which are deficient in one or more of the following points will not be processed by the Indian Trade Mark Registries for prosecution unless atleast the following information is provided in the correct format in the trademark application(s).

Description of Goods / Services:

The Controller General of Patents, Designs and Trademarks has notified that actual and factual description of Goods/Services in respect of which the trademark is proposed to be used or has been used should be mentioned in the trademark filing application.

Subsequently, it is recommended that the trademark applicant should refer to the Nice Classification for properly mentioning details about description of Goods/ Services in respect of which the trademark is proposed to be used in India or has been used in India in each class.

However, terms generally used in the current trademark application(s) like "all goods/ services", "etc", "all other goods/ services included in class " , "goods/services not limited to " shall not be entertained by the Indian Trade Mark Registries. The trademark application(s) mentioning the above terms shall not be processed by the Indian Trade Mark Registries

2. Trademark Applicant(s) Name in the trademark application(s):

The Controller General has notified that Applicant(s) Name in the trademark application(s) should be written in the following format as stated below.

Proprietorship firm – Names of one or more proprietors
Partnership Firm- Names of all partners
Trust-Name of managing trustee
Society- Name of person representing the society

3. Date of Usage of Trademark / Service Mark:

The Controller General has notified that actual date of usage of Trade Mark / Service Mark in India should be mentioned while filing the trademark application(s). The trademark application should specify the actual date, month and the year of the usage of Trade Mark / Service Mark in India. The trademark application(s) specifying just the year and the month won’t suffice the purpose and shall not be processed by the Indian Trade Mark Registries.

4. Proper Translation/Transliteration:

The Controller General has notified that all Non-English and Hindi characters appearing in the trade mark/ logo of the trademark application(s) should be provided and submitted by way of translation/ transliteration along with the trademark application(s).

5. Trademark Brand Logo / Mark Visibility in the trademark application(s) :

The Controller General has notified that the Trademark / Service Mark Application(s) should have clearly visible Trademark Brand Logo / Mark.

Click Here to access the public notice dated 9th January, 2012

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Government of India Approves 51% FDI in Multi-Brand Retail, 100% in Single Brand Retail; Opens gates for Walmart, Carrefour, TESCO to enter Indian market

Rahul Dev — Fri, 25 Nov 2011 11:29:03 +0000

Government of India Approves 51% FDI in Multi-Brand Retail, 100% in Single Brand Retail; Opens gates for Walmart, Carrefour, TESCO to enter Indian market

Indian government has opened the gates for Walmart, Carrefour, TESCO etc. to enter Indian market by allowing 51% FDI in retail. The cabinet has also allowed 100% FDI in single-brand retail, though the two recommendations come with riders like 50% of the investment and jobs should go to the rural areas, 30% of the inputs should be sourced from medium and small enterprises and investment in infrastructure.

Also, it is important to note that one of the riders of this recommendation is that such retail chains can only be opened in towns with population of more than 1 million, restricting the target segment to only 51 towns in India.

Corporate Affairs Minister Veerappa Moily on Friday said foreign investment in multi-brand retail will help improve supply and tame inflation. “It (FDI in multi-brand retail) will help to tame inflation and (promote) growth rate. A good, systematic supply chain will help in bringing down inflation and help farmers,” Mr. Moily told reporters. Mr. Moily noted there is a “need to prepare a huge supply chain under multi-brand retail”. The Cabinet also decided to allow 100 per cent FDI in the single-brand retail format under which companies in the food, lifestyle and sports business run stores.

The government has maintained that farmers will get higher remuneration and FDI will help in the development of logistics and cold chains in the country.

Corporate America has welcomed the bold move of the Indian Cabinet to permit Foreign Direct Investment (FDI) in multi-brand retail and remove the cap on FDI in single-brand business, noting that it will help bring down inflation and create thousands of jobs. "The singular act of opening the multi-brand retail sector to foreign direct investment will significantly benefit the Indian consumer by spurring the modernization of India’s vast agri-retail marketplace," said Ron Somers, the President of the US India Business Council. "Investments will now flow into India’s farm-to-market supply chain, which will usher in expertise and bring efficiencies to India’s supply chain infrastructure. Food price rise and inflation will now effectively be tamed," he said. "Opening the retail sector will create a larger market opportunity for Indian farmers, increasing quality and choice for India’s sophisticated consumers," Somers said.

Addressing the media in the Capital, the Commerce Minister, said the policy framework on FDI which is the official lay-out of the government, is in sync with all the stakeholders especially the small-time farmers and the kirana stores. Sharma said, Indian economy still continue to be agrarian in nature and due to the lack of sufficient infrastructure the post harvest lost is accounted for 45 percent in the country. Commenting on the plight of the farmers he said, due the presence of the intermediaries the producers hardly get 1/7th of the market value their products. He said as per the study of the World Bank, it is the intermediaries which hit hard the financial stability of the farmers.

In the press conference, he mentioned allowing FDI in the multi and single brand retail with greater proportion will address the woes of the farmers. The minister said "the policy is the need of the hour and is an investment in the present and the future". The policy on FDI in retail sector will create an integrated value chain as both the farmers and the consumers will stand to benefit out of it, said the commerce Minister. Comparing the policy decision with countries like China, Russia, Malaysia and Thailand, Sharma said the FDI framework on retail will help create more jobs and steer the course of the economy. He said no FDI cap in retail in countries like China, Russia and Thailand augured well for their economies.

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Indian Trade Mark Office Notifies Amendment in Trade Mark Rules for making e-fling of Trademark Application and other Trademark Registration documents Mandatory

Rahul Dev — Sat, 05 Nov 2011 22:31:05 +0000

Indian Trade Mark Office Notifies Amendment in Trade Mark Rules for making e-fling of Trademark Application and other Trademark Registration documents Mandatory

The Indian Trade Mark office recently notified via gazette notification about amendment in Trade Mark Rules 2002 for making electronic filing of trademark applications and other trademark registration documents mandatory. Once this notification is accepted formally by the Indian govt., it will reduce lot of hassles in the trademark registration process, namely:

· Faster and reliable trademark prosecution and registration proceedings in India

· Lesser chances of corruption and backdoor dealings with trademark officers

However, this will also add additional responsibility on the trade mark office to procure necessary resources to maintain electronic databases related to trademark filings, prosecution and registration proceedings.

Having said that, it is a highly positive development and we expect this to improve the trademark registration procedure in India.

The notification may be read by clicking here.

The notification explicitly states that “The following draft of certain rules further to amend the Trade Marks Rules, 2002, which the Central Government proposes to make in exercise of the powers conferred by sub-section (1) and sub-Section (2) of Section 1 57 of the Trade Marks Act, 1999 (47 of 1991, is hereby published, as required by the said subsection (I) of the said Act, for information of all persons likely to be affected thereby; and notice is hereby given that the said draft rules shall be taken into consideration after the expiry of a period of forty five days from the date on which copies of the Gazette of India in which this notification is published, are made available to the public; Any objection or suggestion which may be received from any person with respect to the said draft rules within the period so specified shall be considered by the Central Government; The objections or suggestions may be forwarded to the Joint Secretary, Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Udyog Bhavan, NewDehi-110011.”

The main characteristics of this notification are:

1. Leaving of documents etc.- (1) Any application, notice, statement, opposition, renewal, report, fee, form or other documents authorised or required to be flied, left, served, paid, made or given to the Trade Marks Registry or to the Registrar or to any persons under the Act or these rules, shall be tendered by using online electronic transmission duly authenticated.

2. The notification also provides that where an applicant or a legal entity who is not a trade marks agent or an advocate under the Advocates Act, 1961, he may use online electronic transmission, if he or it so desires without electronic authentication. However, in such cases, the modified documents shall be required to be filed and shall be duly signed and submitted in paper form also at the appropriate office within 15 days from the date of online submission.

3. Another important point states that where the applications or other documents have been filed using online system, additional copies of application or documents shall not be filed at the appropriate office" unless directed otherwise by the Registrar.

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Facebook Timeline: Conceptualized in 2005, Patented in 2010, All Set to Influence us in 2011

Rahul Dev — Mon, 03 Oct 2011 13:53:41 +0000

As and when Timeline rolls out, an individual user, who has a professional career and a Facebook profile, will have to manage the relationship between both with a totally new approach. This is so because Timeline will change the way Facebook impacts our professional life. For example, it may lead to over sharing of information by the user which may reveal a bit too much to user’s colleagues. The Timeline presents so much in an easy to navigate format that it will be used extensively as a crucial component of hiring process.

Interestingly, a quick search of US Patent Office (USPTO) database reveals that Facebook’s patent for Timeline was filed in 2006, which was subsequently granted in 2010. The patent is titled “Managing information about relationships in a social network via a social timeline” and can be seen here.

The patent primarily relates to a system, method, and computer program for generating a social timeline. The crux of this patent is illustrated in flowcharts depicted in fig. 6 and fig. 7. While fig. 6 is a flow diagram of an exemplary process for ordering data for a social timeline, fig. 7 is a flow diagram of an exemplary process for generating a social timeline.

This analysis of Facebook’s timeline along with corresponding patent sets a great precedent for business owners to file a patent during the early stages of technology conception, so that when the product is ready to enter market, the patent process is completed and the patent is ready to be enforced in case of misuse by competitors.

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LG Seeks to Ban BMW, Audi Car Sales in Korea #patent #automobile

Rahul Dev — Wed, 28 Sep 2011 20:27:51 +0000

The move opens a new front in the continuing legal spat between the South Korean companies and Osram over light-emitting-diode lighting technology, as they struggle for dominance in a fast-growing LED lighting market. LED lights, once used primarily in indicator lamps, are now installed in television screens and aviation and automotive lighting, as well as traffic signals.

"We’ve expanded the legal fight to auto makers using LED package products manufactured by Osram, as the infringed products are having an increasingly negative impact on the fast-growing local LED industry," LG Electronics said in a statement. The company asked the court to issue an interim injunction to block the sales while the case is being argued.

Osram’s Korean unit declined to comment. A spokesman for BMW said he couldn’t yet confirm that an injunction had been received, adding that the company would have to "examine the matter extensively" before it could comment. A spokesman for Volkswagen AG’s Audi brand said it hasn’t yet received an injunction.

Osram is a unit of German industrial conglomerate Siemens AG.

The lawsuit comes after Osram and an affiliate filed a complaint with the Korea trade commission against LG and Samsung Electronics Co. in August alleging that both companies infringed its patents for LED technology used in TVs and computer monitors.

Osram’s move was in response to a complaint LG had filed to the trade commission against Osram in July, seeking a ban on the importation of the company’s LED products into Korea. That in turn came after Osram initiated a similar lawsuit in June, when the German firm sued both Samsung Group and LG Group in the U.S. and Germany for infringing Osram’s patents over LED technology.

LG holds about 4,000 patents globally for LEDs, which are becoming increasingly popular as a source of light because they are small, energy-saving, have a long lifetime and emit less heat than compact fluorescent bulbs.

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President #Obama Honors Nation’s Top Scientists and Innovators #potus #uspto #patent #innovation #science

Rahul Dev — Tue, 27 Sep 2011 16:27:55 +0000

President Obama Honors Nation’s Top Scientists and Innovators

On September 27, 2011, President Obama named five inventors as recipients of the National Medal of Technology and Innovation and seven eminent researchers as recipients of the National Medal of Science, the highest honors bestowed by the United States government on scientists, engineers, and inventors. The recipients will receive their awards at a White House ceremony later this year.

“Each of these extraordinary scientists, engineers, and inventors is guided by a passion for innovation, a fearlessness even as they explore the very frontiers of human knowledge, and a desire to make the world a better place,” President Obama said. “Their ingenuity inspires us all to reach higher and try harder, no matter how difficult the challenges we face.”

The National Medal of Technology and Innovation was created by statute in 1980 and is administered for the White House by the USPTO. The award recognizes those who have made lasting contributions to America’s competitiveness and quality of life and helped strengthen the nation’s technological workforce. Nominees are selected by a distinguished independent committee representing the private and public sectors.

The National Medal of Science was created by statute in 1959 and is administered for the White House by the National Science Foundation. Awarded annually, the Medal recognizes individuals who have made outstanding contributions to science and engineering.

Winners of the National Medal of Technology and Innovation are Rakesh Agrawal, B. Jayant Baliga, C. Donald Bateman, Yvonne C. Brill, and Michael F. Tompsett. Read more about them by clicking here.

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Big win for #Monsanto in #seed #patent case

Rahul Dev — Fri, 23 Sep 2011 12:59:10 +0000

Monsanto Co. has scored a win for its genetically altered seed patents at the U.S. Court of Appeals for the Federal Circuit. The decision was also a victory for Wilmer Cutler Pickering Hale and Dorr, including leading appellate advocate Seth Waxman, the chairman of its appellate and Supreme Court practice group in Washington.

In a Sept. 21 unanimous ruling, the court denied a farmer’s right to replant seeds obtained from a grain elevator that weren’t sold under a Monsanto license agreement but contained Monsanto’s patented technology. It also tackled the concept of patent exhaustion, which is when a patent owner no longer owns the rights to a patented product because the owner has sold the item in an unrestricted sale.

In Monsanto Co. v. Bowman, the Federal Circuit upheld a September 2009 summary judgment ruling by Judge Richard Young of the Southern District of Indiana. That ruling found that Vernon Hugh Bowman infringed two patents owned by Monsanto, an agricultural biotechnology company, for genetically altered soybean seeds. Young awarded Monsanto $84,456.20.

The patents are for Roundup Ready soybean seeds, which resist herbicides such as Monsanto’s Roundup product. Crops grown from the seeds can withstand herbicide spraying, which makes it easier for the farmers to control weeds.

Growers who buy the patented seeds from Monsanto or its licensed producers must abide by an agreement barring them from selling the progeny of the licensed seeds, known as "second-generation seeds," for planting.

The agreement does allow growers to sell second-generation seeds to local grain elevators as a commodity — such as for feed. Grain elevator operators sell commodity seeds, which are a mixture of undifferentiated seeds from many sources.

According to the opinion, Bowman, a grower in Knox County, Ind., bought some of Monsanto’s seed from licensee Pioneer Hi-Bred during the years 1999 through 2007.

In June 1999, Monsanto sent Bowman a letter notifying him of its patents covering the soybean seeds, which stated that the "[p]lanting of seed that is covered by a patent would be making the patented invention and using the patented invention." In 2002, Pioneer required Bowman to sign Monsanto’s agreement. In accordance with the agreement, Bowman used the Monsanto seeds for the first crop of his growing season in 1999 through 2007, and he did not save seeds from those plants.

But Bowman also bought commodity seed from a local grain elevator to plant as a second crop in 1999. He saved seeds harvested from the second crop to replant second crops in later years, and continued to buy commodity seeds for each year’s second crop as needed.

Monsanto sued Bowman for patent infringement in October 2007 because the progeny of the commodity seeds contained its patented seed technology.

Judge Richard Linn authored the ruling, joined by judges William Bryson and Timothy Dyk.

The Federal Circuit agreed with the district court that patent exhaustion does not apply to Bowman’s second-crop plantings. "Even if Monsanto’s patent rights in the commodity seeds are exhausted, such a conclusion would be of no consequence because once a grower, like Bowman, plants the commodity seeds containing Monsanto’s Roundup Ready technology and the next generation of seed develops, the grower has created a newly infringing article," Linn wrote.

The court found that while farmers like Bowman may use commodity seeds as feed or for other purposes, "they cannot ‘replicate’ Monsanto’s patented technology by planting it in the ground to create newly infringing genetic material, seeds, and plants."

The decision is completely in line with long-standing precedent, said Waxman, one of the lawyers at Wilmer who represented Monsanto. "It underscores [that] meaningful patent protection for Monsanto’s self-replicating technology is essential to the advances in biotechnology that the overwhelming number of American farmers want," Waxman said.

The ruling is an important protection for innovation, not just for Monsanto, Waxman said. "It’s [good for] anybody who is innovating and producing useful new inventions in the area of biotechnology generally and self-replicating biotechnology in particular."

Lawyers at Thompson Coburn of St. Louis also represented Monsanto.

In a statement, Monsanto’s associate general counsel for litigation, Kyle McClain, said that the key issue in the case "was whether Monsanto’s intellectual property rights extend to second generation seeds."

"The decision by the Federal Circuit Court of Appeals reaffirmed important intellectual property rights of significance to the entire agricultural biotechnology industry," McClain said.

Mark Walters, a Seattle partner at Frommer Lawrence & Haug who argued for Bowman at the Federal Circuit, said he and his client are weighing their options, including filing a petition for an en banc re-hearing.

"We are disappointed that the decision follows the line of cases [that started with the Federal Circuit's 1992 decision Mallinckrodt Inc. v. Medipart Inc.], which stand in conflict with over a century of Supreme Court law on patent exhaustion," Walters said.

Mallinckrodt reversed a district court ruling that a patent holder’s restriction on reuse was unenforceable under the patent law.

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Google and publishers get closer to securing book settlement #google #googlebooks #lawsuit

Rahul Dev — Mon, 19 Sep 2011 08:29:12 +0000

Google and publishers get closer to securing book settlement

Google and publishers have told a US judge that they are close to settling a lawsuit over the internet giant’s controversial book-scanning scheme, but have agreed that the six-year old copyright infringement case will proceed to trial.

US District Judge Denny Chin in Manhattan approved a pre-trial schedule that calls for written submissions and depositions that extend into next summer, but he made it clear that he would prefer a settlement and offered to help the parties in their talks if it might help.

In the hearing Thursday morning, Judge Chin is said to have exasperatedly noted that "this means we will be litigating this case for another year, at least".

However, on a more positive note, talks between Google, the Association of American Publishers (APP) and the Author’s Guild about reaching a settlement on how to distribute millions of titles that might otherwise be forgotten have seemingly been going well.

"We’re encouraged by the progress we’ve made with publishers and believe we can reach an agreement that offers great benefits to users and rights holders alike," Google spokesman Gabriel Stricker said after a court hearing in New York.

"We’d like to resolve the issue reasonably promptly," said AAP president Tom Allen following the court hearing, adding that it could be a question of "weeks."

Michael Boni, a lawyer for the Authors Guild, told Judge Chin that it was preparing to file an amended complaint against Google in the copyright infringement case, but wanted to nevertheless continue negotiations towards a deal.

"We’d like very much to continue a settlement dialogue with Google to settle the case," Boni said. "We’d be on a parallel track with litigation to work on a satisfactory settlement."

In March, Judge Chin dealt a major setback to Google’s plans for a vast digital library and online bookstore by rejecting a proposed settlement reached between the internet company and authors and publishers.

The settlement called for Google to pay $125 million to resolve outstanding copyright claims and to establish an independent "Book Rights Registry," which would provide sales and advertising revenue to authors and publishers.

In his decision to reject the settlement, Judge Chin citied copyright, anti-trust and other concerns, saying that the $125 million settlement went too far. He said it would have granted Google a "de facto monopoly" and the right to profit from books without the permission of copyright owners.

The settlement is a result from a lawsuit filed in 2005 by the Authors Guild and the AAP, charging Google with copyright infringement over its scanning of millions of books in what was described in the lawsuit as "one of the largest copyright infringements in history".

Source: http://www.ipworld.com/ipwo/doc/view.htm?id=273506&searchCode=H

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