by Lee Gesmer | Aug 2, 2012 | Patents
The Internet has made following trials in real time feasible, more or less. For the press to cover controversial trials is nothing new, but in the past these were mostly criminal cases. Today, thanks to sites like groklaw.net, people can follow technology industry cases in detail – descriptions of what is going on in the courtroom, documents and (in the case of groklaw), unsparing commentary.
Groklaw is following Apple v. Samsung from a distance (at least compared to its recent coverage of Oracle v. Google), and the traditional press appears to be covering the case heavily, but only at a general level of detail. However, someone has put together a twitter feed consolidating the tweets of several industry reporters. It’s almost like a shadow jury, but a jury of people more knowledgeable about the companies involved than the average juror. And, in some cases, openly opinionated.
The lawyers involved in this case, and certainly in any case covered in detail by groklaw, must dread the possibility that jurors are reading these materials.
The twitter feed is here.
by Lee Gesmer | Aug 2, 2012 | Patents
It seems that Google’s “bounce back” patent is going to play a big role in the trial between Apple and Samsung, underway in federal district court in Palo Alto. References to it in Apple’s opening statement highlighted this patent. I wasn’t sure what the “bounce back” was, but I think I’ve tracked it down.
How do you know that you’ve reached the bottom or top of a page on an iPhone or iPad? The screen “bounces back” in the opposite direction. Or, as described in patentese in U.S. patent 7,469,381, issued to Apple in December 2008:
In accordance with some embodiments, a computer-implemented method for use in conjunction with a device with a touch screen display is disclosed. In the method, a movement of an object on or near the touch screen display is detected. In response to detecting the movement, an electronic document displayed on the touch screen display is translated in a first direction. If an edge of the electronic document is reached while translating the electronic document in the first direction while the object is still detected on or near the touch screen display, an area beyond the edge of the document is displayed. After the object is no longer detected on or near the touch screen display, the document is translated in a second direction until the area beyond the edge of the document is no longer displayed.
The patent is titled, List scrolling and document translation, scaling, and rotation on a touch-screen display.
“Bounce back” is a far more jury-friendly term than “an area beyond the edge of the document is displayed . . . .” Whether Apple can withstand Samsung’s challenge to the validity of this and other patents is the real question.
by Lee Gesmer | Aug 1, 2012 | Copyright
One of the thorny issues that comes up in copyright cases is whether a dispute actually falls under federal copyright law. What the plaintiff may claim to be copyright infringement the defendant may argue is a breach of contract, or vice versa. If copyright law does control, any state law claim based on rights that are the equivalent of those protected by the Copyright Act are preempted, and must be dismissed. A common example is breach of contract: if copyright law applies, a claim for breach of contract is likely to be preempted.
The consequences of a ruling one way or the other on this issue can have strategic consequences (whether the case proceeds in federal or state court) or substantive (the standard for liability, or the measure of damages). One context in which this issue arises involves idea submission – where the plaintiff pitches an idea idea hoping to persuade the recipient to purchase the idea for commercial development. When the defendant allegedly uses the idea to create a copyrightable work, is the claim one of copyright infringement or breach of an “implied contract”?
This was the issue in Forest Park Pictures v. Universal Television Network, Inc., decided by the Second Circuit in June. Actor Hayden Christensen had pitched Universal on a TV show about a concierge doctor to the rich and famous. He claimed that Universal breached an “implied contract” when it created the series Royal Pains, and then refused to compensate him. Universal argued that the dispute should be governed by copyright law, and therefore any state law claims (such as Christensen’s claim for breach of implied contract) were preempted. The Second Circuit disagreed with Universal (and the trial court), holding that a breach of implied contract claim concerning an idea was not preempted by copyright law, and therefore the case could proceed on the state law theory of breach of an implied contract.
One strategic consequence, in the context of this case, is that it may be more difficult for a defendant to persuade a court to dismiss an implied contract case case before trial, than a copyright case. In this regard, see my recent post, noting that the courts are receptive to a motion to dismiss a copyright claim if a comparison of the original and alleged infringing works can resolve the question of substantial similarity. Therefore the ruling in this case likely favors the plaintiff’s ability to avoid dismissal before trial.
Forest Park Pictures v. Universal Television Network, Inc.
by Lee Gesmer | Jul 29, 2012 | Copyright
Not long ago the Computer Lawyer published an article that made the case on how rare copyright trials have become. The article had an appendix listing cases that had been dismissed in favor of the defendant either on the pleadings or summary judgment. The bottom line was that judges are inclined to look at the works at issue in a copyright case early on, make a decision on similarity or dissimilarity, and end the case long before it has the chance to get to a jury.
Two cases decided by the Massachusetts federal district court thus far this year show that, for better or worse, this trend in alive and well in Massachusetts. In McGee v. Andre Benjamin Massachusetts U.S. District Court Judge David Woodlock found that Cartoon Network’s Class of 3000 television series did not infringe an animated serial work titled The Music Factory of the 90’s. The Music Factory had been pitched to The Cartoon Network in long-form outline describing the plot and style. Judge Woodlock compared the works at issue and found that the plaintiff failed to establish sufficient similarities to proceed with a copyright claim. No jury, no trial – case dismissed.
In Greenspan v. Random House the plaintiff claimed the book, The Accidental Billionaires: The Founding of Facebook: A Tale of Sex, Money, Genius, and Betrayal, infringed the copyright in his book, Authoritas: One Student’s Harvard Admissions and the Founding of the Facebook Era. U.S. Magistrate Robert Collings found that there was evidence of access and of “probative similarity” (probative similarity being the first part of the two-part test for copyright infringement), but that Greenspan could not prove The Accidental Billionaires was “substantially similar” to Authoritas. No jury, no trial – case dismissed.
You were expecting an actal copyright infringement trial? Fagettabout it!
by Lee Gesmer | Jul 24, 2012 | Trade Secrets
When I think of trade secret cases I tend to think of “high end” stuff: secret manufacturing processes, software algorithms, chemical or biological secrets, maybe even the formulas for Coca Cola or Kentucky Fried Chicken. The truth, however, is more mundane, as shown by a case decided by Judge Nicholson in Barnstable County. In this case, which was dismissed in favor of the defendant hair stylist on summary judgment, the court held that a hair salon’s hair color formulas and customer contact information were not trade secrets. This was an easy case, since the stylist knew many of her clients socially outside the salon and there was no employment or secrecy agreement other than an employee handbook, which is a weak basis on which to make a trade secret claim. After all, how many employees read handbooks? The judge also ruled that the hair color formulas belonged to the stylist who had developed them for the salon’s clients, not the salon, since there was no agreement to assign the formulas to the salon. I find this latter rationale suspect, since “inventions” created within scope of employment and while on the job typically belong to the employer. However, I question whether the color formulas qualify as trade secrets in the first place. Case closed.
Esalon, Inc. v. Isolde Hoffman
