September 2005

Submarines Sunk, Again

by Lee Gesmer on September 15, 2005

Is this the end of an era in patent law? Or just the dropping of the other shoe? Last week in Symbol Technologies, Inc. v. Lemelson Medical, Education and Research Foundation, LP, the Court of Appeals for the Federal Circuit (practically the court of last resort in patent matters, since the Supreme Court rarely takes a patent case) ruled that a number of machine vision patents of inventor Jerome Lemelson were unenforceable due to the patentee’s “unreasonable delay” in prosecuting the underlying patent applications before the U.S. Patent and Trademark Office. The ruling comes too late for various companies who had already paid millions of dollars to license these patents from Lemelson.

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Google Takes One From Mister Softie

by Lee Gesmer on September 14, 2005

“The thing to fear is not the law, but the judge”
Russian Proverb

Non Compete Agreements. The need to “spin” a litigation outcome to try to persuade the public that you won appears irresistible to large corporations. However, it’s hard to keep a straight face reading Microsoft’s pronouncements about the Seattle state court’s September 13th decision in Microsoft’s suit against Google and Dr. Kai-Fu Lee, until recently “the face of Microsoft in China.” Believe me, when your former employee is able to show up to work for your competitor the day after the decision on your preliminary injunction motion to enforce a non compete agreement, you have not won.

The fact is, a preliminary injunction seeking to enforce a non compete agreement is always highly uncertain. Some judges view non compete agreements as just another contract, to be enforced as written. Other judges have an almost philosophical antipathy to non competes, and will bend over backwards to find any reason not to enforce them.… Read the full article

Trademarks/Domain Names. Why did Jerry Falwell lose and Bill Cosby win?

Bill Cosby prevailed this week in a domain name dispute involving FATALBERT.ORG (William H. Cosby, Jr. v. Sterling Davenport). This dispute was resolved in an ICANN arbitration, which requires that the complainant prove both that the domain name was registered and used in bad faith in order to succeed. The arbitrator found that Mr. Davenport had no legitimate interest in the domain name, that he had registered it solely with the intention of trading on the fame of Cosby’s Fat Albert character, and that he sold sexually explicit products and drugs on the site, which the arbitrator found particularly offensive since the Fat Albert mark is so closely associated with children. Mr. Davenport’s for-profit conduct clearly constituted bad faith use and registration of the domain name, and he was ordered to transfer the domain name to Cosby.

Compare this with The Reverend Jerry Falwell’s attempt to gain control over FALLWELL.COM,… Read the full article

Webcasts of SJC Oral Arguments

by Lee Gesmer on September 14, 2005

The Supreme Judicial Court and Suffolk University Law School are webcasting oral arguments, both live and archived.

  • Link to the Massachusetts Supreme Judicial Court Oral Arguments Site here.
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