USPTO Jumps in Line to Provide “Green” Initiatives, Ignores Climate Gate

by Jason Fischer

“Awe!  Come ON!  I made a movie about it.  That proves it’s true.”

Director Kappos, of the United States Patent & Trademark Office (USPTO), writes on his blog this week about how the Office intends to fast-track the examination of patent applications that deal with so-called “green” technologies.  Great headline for a month ago, when the popularized position was that anthropogenic climate change (formerly known as “global warming”) was a *proven* phenomenon.  However, recent developments have put those findings in serious doubt.

In case you haven’t been keeping up, as Director Kappos clearly hasn’t, emails were leaked last month from the University of East Anglia’s Climatic Research Unit – a world-renowned climate change research center – which reveal a “trick” being employed by researchers to massage temperature statistics (source).  Seems that a decline in temperature didn’t fit into the doomsday scenario that’s being thrown about to justify new grant money, new cap-and-trade legislation, and new taxes.  The emails openly discuss the deletion of historic source data and ways to discredit scientific journals that have published skeptic papers, as a couple of examples (source).

Moving back to the IP tie-in, the USPTO is continuing to drink the climate change kool aid by proposing that so-called “green” patent applications should be given priority treatment in examination.  Kappos’s announcement of the policy was timed to coincide with the start of the United Nations Climate Change Conference in Copenhagen, Denmark.  In that announcement, the Director explains the impetus for such an initiative:

As I have often said, the USPTO is committed to dramatically reducing the backlog and average patent pendency time across the board.  As we work toward this goal, we are going to pilot a program that will give priority to applications that combat climate change and foster job creation in the green tech sector.  The Green Tech patent pilot program will decrease the time it takes to obtain patent protection for green tech innovations by an average of 12 months.  (source)

One has to wonder what other types of applications will be “de-prioritized,” in order to let climate-change-fighting inventors skip the line.  It seems clear that this initiative would do absolutely nothing to improve the average pendency time across all patent applications.  It is truly odd that, at the Patent Office, where a science degree is required to prosecute or examine applications, they’re not letting a silly thing like the absence of a scientific foundation stop them from disparaging the majority of the inventing community.  It certainly isn’t stopping the charlatan proponents of climate change theory from generating a city-sized carbon belch to gather and talk about how to reduce carbon emissions.

Once again, the Director concludes his blog post, claiming that he welcomes comments and feedback, but somehow my comments thereto on this subject failed to clear moderation.

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This article was originally posted on GaneshaFish.com

The People’s Republic of Brooklyn

by Jason Fischer

“All your property rights are belong to us!”

Thanks to the socialist wing of our highest court, the language of the Fifth Amendment has been perverted to include economic development as a justifiable reason for disregarding private property rights.  In the latest episode of “how can the government make sex to me, without even buying me a drink first,” a developer in New York has convinced that state’s highest court that the New Jersey Nets need a new arena more than 146 people need to keep their homes (source).

In case you’re not familiar with United States property law, I’ll give a quick primer.  Owning “real property,” here in the U.S., essentially amounts to having the privilege of using U.S. laws and U.S. courts to enforce your rights against others.  If you don’t want your neighbor to build that fence 3 feet into your back yard, you can file a law suit and prevent him from doing that.  Since property rights come from the government, the government can potentially refuse to recognize your rights.  The Bill of Rights to our Constitution, recognizing this, includes a limitation on our government’s ability to just up and decide to turn you out of your house.  The Fifth Amendment states, among other things, that “private property [shall not] be taken for public use, without just compensation.”

Seems fair.  If your community needs a school or a road, and the only way that public utility can be built is to dispossess someone of their property, the government can do it, but they have to pay the fair value.  It would be better if property rights were inviolate, but clearly it’s going to come up occasionally.  The Founders came up with a plan, i.e., eminent domain, to make it reasonably just.  That worked just fine for 200 years — until some limousine liberal Supreme Court Justices decided that they knew what’s best for all of us, in their infinite paternal benevolence.

In 2005, the Court ruled 5 to 4 that handing people’s homes over to private real estate developers could be considered “public use,” within the meaning of the Fifth Amendment.  Luckily, most red states have reacted by providing state law protection for property rights (thanks be to his Noodly Goodness for the Tenth Amendment).  But the Empire State (guess which way they typically vote) is apparently okay with assisting private real estate developers in perpetrating a land grab in Brooklyn.  The following is a dramatization of what occurred:

So on this Thanksgiving, make sure you say thank you to Justice Stevens and his socialist, intellectual elitist colleges, Souter, Ginsburg, and Breyer, for taking a collective crap on the vision of our Founders — who gave King George the finger for, among other reasons, disrespecting property rights of non-royals.  (To this day, Britons still have to rent property from the Crown, rather than own it.)  It certainly is confidence inspiring to know that a real estate developer can march into a New York court, waving a page from Hugo Chávez’s playbook, and come away with an endorsement.  Clearly, we’re moving in the right direction as a nation.

Anonymous Hooker Blogger Outed

by Jason Fischer

If you’re a fan of Showtime’s adult series “Secret Diary of a Call Girl” (or even if you aren’t), you may be interested to know that the real-life anonymous author of the blog and book that inspired the series went public earlier this week.  (Source)

Dr. Brooke Magnanti, Ph.D. in informatics, epidemiology and forensic science, in an interview with The Times, talks candidly about how she got into the biz of having sex for money.

Dr. Brooke Magnanti
(a.k.a. Belle du Jour)

I was finishing my writing — I was getting ready to submit my thesis.  I saved up a bit of money.  I thought, I’ll just move to London, because that’s where the jobs are, and I’ll see what happens.  So I did.  I submitted the thesis but I was still preparing for the viva — there was quite a lot of writing and studying still to do.

I couldn’t find a professional job in my chosen field because I didn’t have my PhD yet.  I didn’t have a lot of spare time on my hands because I was still making corrections and preparing for the viva; and I got through my savings a lot faster than I thought I would.  The difference between living in the Highlands and living in London is massive.  I hadn’t really thought that one through.

I have a pathological aversion to being in debt.  My mother’s family are Jewish; there’s this hoarding thing, saving, being prepared — if you’re in debt somebody could come and knock at your door and take it all away tomorrow.  It got to the point where I didn’t have quite enough money for my rent.  I asked my best friend if I could borrow some money and he posted me a cheque.

I was looking at this cheque.  It wasn’t even the total of my rent; it was a quarter of it or something, some stupidly low amount like £120.  I thought, ‘But once I deposit this cheque, I’ll still need money for next month.’  And I couldn’t do it.  I couldn’t borrow this money knowing that I couldn’t pay it back and that I’d need more pretty much straightaway.  And that was when I started to think: what can I do that I can start doing straightaway, that doesn’t require a great deal of training or investment to get started, that’s cash in hand and that leaves me spare time to do my work in?  (Source)

The Times article, while a little on the long side, is still worth the read.  It discusses, in some detail, how Belle du Jour has *disproved* some of the time-honored preconceptions about the world’s oldest profession.  One of the reasons that she gives for coming forward is that so many doubt her story, claiming that it must be fiction.  How could a prostitute actually feel empowered by her career choice?  Even claim to enjoy the work?

When asked about whether she thought being a prostitute hurt her emotionally, Dr. Magnanti answers “I’ve felt worse about my writing than I ever have about sex for money.”  Somewhere, Andrea Dworkin is screaming in anguish, rolling over in her grave.

H/T Odie

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This story was originally posted on GaneshaFish.com

The USPTO Embraces the Blogosphere, Lobbies for First-to-File

Kappos: “Hey Ted, can you show me how these here tubes work?”

The U.S. Government Agency that is responsible for validating which technologies are new and useful has discovered a not so new, yet highly useful tool: web logs.

In an effort to open a line of communication between the USPTO and the practitioners who deal with the office on a daily basis, newly sworn in Director David Kappos published the inaugural post on his new blog.  In it, he takes up the long-raging debate over whether moving to a first-to-file system of prosecution would have a drastic impact on the U.S. patent system.

The United States is unique in its position that the first to invent, not the first to file an application, should be the person to receive a patent for her invention.  The rest of the civilized world holds the opposite view, giving patent protection to the first party to have her paperwork in.  The first-to-file system eliminates the possibility of complicated and expensive arguments over who can prove the date of her invention.  The downside is that someone could miss out on a patent for her invention, simply because she took an extra day to draft an application.

Congress has slipped this change into several proposed patent reform bills over the last several years, but it has failed, as of yet, to reach bicameral approval.

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This post was originally published on The Tactical IP Blog.

Mattel finally learns how to “chill”

by Jason Fischer

One of the chores inherent in the practice of law is that one has to read a lot of really REALLY dry court opinions. It’s always nice when you find judges out there who recognize this, and make some effort to keep it interesting. One of my favorites from law school has always been Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002). Well, this week saw an interesting footnote added to that opinion.

The Back Story

Most will probably remember that there was an annoying pop song, which was recorded back in the 90’s, called “Barbie Girl.” The group Aqua’s single claim to fame was a huge success, despite being about as appealing to listen to as nails on a chalkboard — don’t let the number of stars assigned to this YouTube clip fool you.

If anything, I have to admit that I find the song amusing, and unlike 2 Live Crew’s “Pretty Woman,” I can believe that Aqua actually created the song to poke fun at the materialistic nature of Mattel’s Barbie franchise, instead of coming up with that justification after a lawsuit has been filed. True to form in those days, Mattel was not amused with Aqua’s parody, and decided to do what it always did back then… file an infringement lawsuit. While the case was pending, a Mattel spokesperson went on record, criticizing the defendants for not respecting their intellectual property rights, which of course spurred a defamation counterclaim.

The trial court made short work of both sides’ allegations, dismissing all with a summary judgment. The court determined that the Aqua song incorporated Mattel’s trademark as a means of identifying Mattel, not to unfairly compete with the toy company. That’s fair use.

Everyone appeals, hilarity ensues

Hon. Alex Kozinski (who is probably better known for more recent events) sets the tone for his now-famous opinion in the first line: “If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.” From there, he explores a brief history of the Barbie doll’s origins as an adult toy, modeled after a German hooker — something I’m sure that Mattel would rather not have reported on. Moving on to an expert legal analysis of the balance between the First Amendment and intellectual property rights, Kozinski concludes by boiling down the defamation claim as unsustainable:

MCA filed a counterclaim for defamation based on the Mattel representative’s use of the words “bank robber,” “heist,” “crime” and “theft.” But all of these are variants of the invective most often hurled at accused infringers, namely “piracy.” No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo. In context, all these terms are nonactionable “rhetorical hyperbole,” Gilbrook v. City of Westminster, 177 F.3d 839, 863 (9th Cir. 1999). The parties are advised to chill.

Mattel slunk away, licking the wounds of its latest intellectual property litigation defeat. For the next several years, it appeared as if they had not learned their lesson (see, e.g., here, here, here, and here). However, yesterday morning, the doll maker launched an ad campaign that demonstrates that they may have finally hired a decent attorney who gives better advice grown up. (source)

New commercial with altered lyrics

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This story was originally published on GaneshaFish.com

Gov. Schwarzenegger tells the California legislature how he really feels

The Governator sent, along with some unsigned bills, the following letter to California lawmakers.

Check out the first letter of each line

(source)

Hiring a Legal Asistant 101

"Do you really think that I'm perfect for the job?"

Helpful hints for finding and hiring a legal assistant:

• Make sure you use an online listing service.  Craigslist is always a good one.
• Always do a good job of describing what you’re looking for.  Use explicit language, whenever possible.  For example, stating that you are seeking an “energetic woman” for “general secretarial work, some paralegal work and additional duties for two lawyers” seems to be a winner.
• Next, in addition to a resume, be sure to ask for some personal information, such as photographs and “a description of your physical features, including measurements.”
• When you receive applications, always follow up with an email, including more information about what the position entails.  Here’s a great example of the kind of thing you should write:
  

  In addition to the legal work, you would be required to have sexual interaction with me and my partner, sometimes together sometimes separate.  This part of the job would require sexy dressing and flirtatious interaction with me and my partner, as well as sexual interaction.

• To be sure that everyone understands what is expected, you will want to make performing sexually a part of the interview process.

(source)

H/T Becky

…and after you’ve hired your dream assistant, here’s some advice on keeping her.

Immoral or Scandalous Matter?

by Jason Fischer

One of the "peculiarities" of U.S. trademark law is that the government has a stick up its collective ass about recognizing trademarks that may be suggestive of dick-and-fart humor.  Section 2 of the Lanham Act (the federal statute that creates trademark rights) provides:

No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it –

• (a) Consists of or comprises immoral, deceptive, or scandalous matter . . . .

15 U.S.C. § 1052 (2008).

Presumably, you can decide for yourself whether the above image is offensive or (as I did) worthy of a snicker or three.  It looks like, from the license plate and unfamiliar make/model of the van, this company is doing business overseas, but rest assured this mark would never appear on the principal register of trademarks in this country.  Now, don’t misunderstand me; if this business opened up an office on this side of pond, they could likely prevent others from using the same mark, based on any common law rights that could be established, but our federal government would never give them the benefits of a federal registration for the mark.

Now, you may be asking yourself, "Wait; isn’t that the whole point of trademark law — preventing others from using your mark?"  That is true, but the game gets much, MUCH easier when you have a federal registration.  Establishing common law rights is generally an extremely lengthy and expensive evidentiary process, which involves paying your attorney to prepare and file a phone-book-sized amount of paperwork in any infringement suit.  Compare that with the single sheet that must be presented by the owner of a federally registered trademark, and you begin to see some of the benefits of registration.

Lots of hardcore civil libertarians that I know pound the table and froth at the mouth while denouncing the puritanical nature of our trademark regime.  Even though I don’t get as worked up, personally, I do happen to agree.  What difference does it make that someone wants to call their business "Butt Drilling"?  Do we really need the federal government to discourage that guy from doing what he wants with his entrepreneurial humor?  Should we be shielded from this "attack of immorality" at the expense of his freedom?  Trust me, plenty has already been written on whether there is even a rational basis for Section 2(a), by people way smarter than I — enough that I won’t bore you with any more.  Suffice it to say, it is something that must be given careful consideration when choosing your brand.

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This story has also been published on The Tactical IP Blog.

It’s official… The Nobel Prizes have lost all significance

You know what would be cool? If I could use my fortune to establish a prize for doing nothing! Imagine it... 'And the Nobel Prize for doing Jack Shit goes to..... .

by Jason Fischer

Maybe I’m just too young to realize that it’s always been effed up this way, but when I was a kid, I used to think it meant something to hear that someone had won a Nobel Prize. Now it is clearly just a leftist love fest with no real accomplishment value whatsoever.

Congratulations, President Obama, on your meaningless award that you got for playing basketball with the boys in the White House instead of bowling giving the world hope. Great Success!! High Five!!

The North Face claims that consumers don’t know their heads from their asses

by Jason Fischer

Clothing producer, The North Face (TNF), recently got a lesson in how bad trademark enforcement decisions can make a company look silly. It seems a St. Louis teen thought that it would be amusing to create a clothing line parody, calling it “The South Butt,” — south being the logical opposite of north and butt being… well… you get the idea. TNF was not amused, however, and they set their attorneys to attack mode, sending a cease and desist letter to the college freshman (source).

TNF’s letter asserted that use of the “South Butt” logo (pictured below) constitutes an infringement of their own federally registered trademark (pictured above). On its face, TNF’s claim is not so unreasonable. As any trademark owner (who has a decent attorney) can tell you, trademark rights can be lost if you don’t enforce them. TNF must, in order to maintain its ability to sue legitimate infringers, actively look for unauthorized uses of its logo. However, owning federal trademark rights does not mean you can stop every use of your mark that you don’t like. Federal trademark law was created to prevent consumers from becoming confused about the source of goods, not give complete exclusionary rights in logos, words, and phrases. It certainly wasn’t meant to give companies the power to stifle criticism — a point that corporate attorneys seem to frequently fail to explain to their clients.

In order to be actionable as an infringement, the South Butt logo must be likely to cause confusion in the minds of the consuming public. In other words, if “an idiot in a hurry” would not be able to tell the difference between these two logos, then TNF could conceivably stop South Butt from using their logo. I think South Butt’s attorney states the issue with TNF’s claim pretty well:

I did try to explain with a great deal of candor to counsel for the North Face that the general public is aware of the difference between a face and a butt. (source)

The irony is that, as many other companies have learned in the past, over enforcing your trademark rights can have the exact opposite effect from the one that you intended. In this case, only a few people were even aware of the “South Butt” brand before TNF took any action. Presumably, TNF wanted to suppress this innocent gibe at their popular brand, but instead, they only managed to boost web traffic at shop.thesouthbutt.com.

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This story has also been published on The Tactical IP Blog.

New Copyright Czar, Background in Trade and Education

by Jason Fischer

Victoria the Not-so-Terrible

On Friday, President Obama appointed the first “Intellectual Property Enforcement Coordinator,” a new position created last year by the Prioritizing Resources and Organization for Intellectual Property Act (a.k.a. the PRO-IP Act). While many criticized that legislation as further enlisting U.S. law enforcement to do the dirty work of the RIAA and MPAA, some of those same voices are praising the president’s choice of Victoria A. Espinel as a fair compromise.

“We believe she will be fair in her approach to intellectual property enforcement issues,” said Gigi Sohn, president of Public Knowledge, a left-leaning digital-rights advocacy group. (source)

This commentator hopes that Ms. Espinel’s understanding of the complex landscape of international trade, combined with a history in academics — where the value of citation and accretion is recognized over draconian exclusion — will help move copyright policy towards something a bit more sensible than life-plus-70.

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This story has also been published on The Tactical IP Blog.

Stormtroopers’ 9/11

@Left-wing Nutjobs: Disagreeing with the President does NOT make me a racist

by Jason Fischer

An extremely disturbing trend has started to develop in the U.S. political landscape, which needs to be addressed sooner rather than later. It seems that the the left would like to start playing the “race card” every time someone disagrees with President Obama. Not only is this behavior irresponsible and childish, it only serves to breathe new life into the real race hatred that we would all hopefully like to see eliminated in this country.

Like most political rhetoric, this started out at the fringes of the left, but in recent weeks, it has made its way into popular media. Personally, I was offended when I read the following, which appeared in an early-August issue of the New York Times:

[T]he driving force behind the town hall mobs is probably the same cultural and racial anxiety that’s behind the “birther” movement, which denies Mr. Obama’s citizenship. (source)

Now I can’t say that I’m surprised that Paul Krugman would stoop to these kinds of distraction tactics, but I hoped that this was isolated. After all, Krugman is a second-rate political hack, who should stick to poorly reporting on economics. Whenever he starts pontificating about other subjects, most people know to ignore him. Unfortunately, his comments were just foreshadowing.

The most recent allegations of racially motivated dissent stem from Rep. Joe Wilson’s (R-SC) “outburst” during President Obama’s health care address last week. Again, the New York Times ran forward, pointing and shouting “RACIST!!!” rather than admitting that people may have legitimate reasons to disagree with the president’s proposed plan for reforming the health care system:

Wilson clearly did not like being lectured and even rebuked by the brainy black president presiding over the majestic chamber. (source)

The author of this piece of irresponsible journalism, Maureen Dowd, even suggested that Rep. Wilson’s behavior is clearly racist because no one has ever shouted at white presidents. Apparently, she didn’t cover
President Bush’s 2005 State of the Union Address or his appearance at Obama’s inauguration in January.

Now, I agree, yelling out “YOU LIE!!!” in the middle of Obama’s speech may not be the most constructive way of voicing Rep. Wilson’s opinion, but you have to admit that claiming we won’t be paying for medical coverage of illegal immigrants under the proposed plan is more than a little disingenuous. However, instead of debating the truth of the president’s claim, everyone’s clamoring about whether Rep. Wilson is a member of the KKK.

Now, the Congressional Black Caucus is getting on board, claiming that anyone who doesn’t support some kind of reprimand for Rep. Wilson must be a racist also:

And so I guess we’ll probably have folks putting on white hoods and white uniforms again and riding through the countryside intimidating people. … That’s the logical conclusion if this kind of attitude is not rebuked, and Congressman Wilson represents it. He’s the face of it. (source)

I could not disagree more. The “logical conclusion” that I see is an environment where everyone is loathe to voice any original thought on political issues, for fear of being branded a bigot. If you are the least bit paranoid, you would recognize that as thought control, and it should be called out as such whenever it rears its ugly head.

DHS Issues New Border Search Rules for Electronic Media

by Jason Fischer

The Fourth Amendment to the U.S. Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . (source).” Since 9/11, a good number of feathers have been ruffled, debating what constitutes an “unreasonable search.” Pundits a plenty have been ranting about “privacy this” and “warrantless that,” but the simple truth is that there are many situations where it is not “unreasonable” for the government to conduct a “search,” without first obtaining a warrant.

A classic example is when officials, employed by U.S. Immigration and Customs Enforcement (ICE) or U.S. Customs and Border Patrol (CBP), search your possessions upon entry into the United States from a foreign country. Mechanically, the presumption is raised that you consent to the search by entering the United States. If you don’t want to be searched, don’t come in. Ostensibly, the goal is to prevent certain items from being smuggled into the country — drugs, explosives, etc. — or, in the words of our Department of Homeland Security (DHS), “to combat transnational crime and terrorism . . . (source).” That all seems reasonable, but a hardcore civil libertarian would likely quote Benjamin Franklin in opposition: “Anyone who trades liberty for security deserves neither liberty nor security (source).”

Hang on there, Benji — an act of “terrorism” in your day was dumping some Lipton in the harbor. It’s pretty hard to uphold the standard of the Founders in the face of more modern concerns (e.g., dirty bombs, heroin, anthrax), but try we must. Unfortunately, it seems like our government doesn’t try very hard sometimes, as demonstrated recently by DHS, which is responsible for controlling ICE and CBP.

In the face of these more modern threats, coupled with advances in technology that make it possible to transport large amounts of data, ICE and CBP have in recent years begun detaining and searching digital media — e.g., laptops, portable hard drives, thumb drives, CDs, DVDs, iPods, yadda, yadda, yadda. What are they looking for, you ask? Answer:

Searches of electronic media, permitted by law and carried out at borders and ports of entry, are vital to detecting information that poses serious harm to the United States, including terrorist plans, or constitutes criminal activity—such as possession of child pornography and trademark or copyright infringement. (source)

Terrorist plans — I get it. IP infringement — I don’t. Child porn — really? Gotta throw that one in, so that anyone who makes a stink will look like a pedophile, I guess.

Come on, people. Get mad. They’re insulting your intelligence here. DHS is charged with protecting the security of the homeland, not carrying out the marching orders of the MPAA or RIAA, all without the procedural protections of a warrant. We’re not just talking about rifling through my dirty underwear anymore, looking for that kilo of cocaine. You’re potentially reading my emails, skimming my privileged work product, or ogling the naughty pictures I took of my wife while we were having sexy time — all without a lick of probable cause that I’ve done anything illegal. Not Cool.

So the question remains: How do you authorize customs officials to look for the really bad stuff (e.g., shoe bomb schematics), and, at the same time, protect the stuff that they should need a warrant to view?

To quiet concerns about potential violations of privacy, DHS issued directives this week to ICE and CBP, supposedly ordering those agencies to behave. The new directives contain a number of “safeguards” that are designed “strike the balance between respecting the civil liberties and privacy of all travelers while ensuring DHS can take the lawful actions necessary to secure our borders (source).” They read like a bunch of false measures (to me, anyway). A few examples:

• Providing a leaflet to travelers, whose digital media has been detained, explaining any available administrative recourse
• Hanging signs around borders and ports of entry, informing that digital media is subject to search and potential detention
• Requiring approval of a supervisor to extend a detention of digital media beyond thirty days
• Allowing only a supervisor to copy information from detained digital media
• Directing a customs officer to consult with local counsel or the U.S. Attorney’s Office, if a traveler asserts that the information contained in the digital media is subject to attorney-client privilege

You can read the entire “Privacy Impact Statement” here.

I don’t know what the right answer is to the question posed above, but I do know that I expect my government to respect the notion of freedom that this nation was founded upon. We left Britain, at least in part, because the police could stop anyone on the street at any time and demand to see their papers. The Fourth Amendment was carefully crafted to prevent this type of abuse in the United States. @DHS: ur doin’ it wrong.

That’s right… Broward County, FL

Parental Rights Fail

(source)