Intellectual Property, Technology, and the Law

Monthly Archives: April 2011

A Monster Medley – April 30, 2011

I’ve been meaning to blog about a number of interesting intellectual property related issues, stories and opinions I’ve read over the past week or so, but haven’t had the time until now. I am going to dispense with any clever segues and just post them along with some comments.

Have you seen The Hangover? If you have, you’ve probably seen the Hangover 2 trailer. Check this out — a tattoo artist is suing Warner Brothers over the design of the face tattoo he provided to none other than Mike Tyson, whereas said tattoo was used in The Hangover 2 by Stu Price, the dentist who lost his tooth in the original. Any time intellectual property gets crossed with a bachelor party, you just gotta write about it. You dig?

Among a plethora of stupid things our Government is doing, one of them is cutting the USPTO budget. Well, to me, few things make as much sense as the USPTO having a satellite office in one of the world’s most active innovation volcanoes, the Silicon Valley. But the Government isn’t going to do it. And that’s too bad. Job creation, better patents, more innovation, more investment… ah, the heck with it. You’re right. It makes too much sense. Click here for the link.

Read more of this post


The Shot Heard ‘Round the World: Apple vs. Samsung

Do you know the story of the “Shot Heard Round the World”? Most people think it’s Bobby Thompson’s home run that won the Giants the pennant in 1951. But it in fact refers to a Ralph Waldo Emerson poem called “Concord Hymn“:

By the rude bridge that arched the flood,
Their flag to April’s breeze unfurled,
Here once the embattled farmers stood,
And fired the shot heard round the world.

This shot referred to a shot fired in a confrontation between British soldiers and (soon to be) American citizens, and it quickly escalated the conflict into The Revolutionary War. (Which America won. Take that, Royal Wedding!)

Well, the first shot was fired two weeks ago, when Apple filed a lawsuit in the United States (Northern California District Court) against Samsung. Apparently, Samsung was probably expecting to get sued, because they filed retaliatory lawsuits in three different countries (South Korea, Japan and Germany). And just today, Samsung also filed a countersuit against Apple in the Northern California District Court. So lots of shots have been fired, and we’re only two weeks into this!

Read more of this post

10 Reasons Why I Love Intellectual Property

World Intellectual Property Day” begins here in San Jose, California in  just a few hours, on April 26, 2011. This particular day of the year was chosen because it was the day that the World Intellectual Property Organization (WIPO) was created.

In honor of this day, I put together a top 10 list of the reasons why I love practicing intellectual property. So, in no particular order, here they are.

  1. Living on the Edge. Well, ok, I’m blogging from my couch while watching the San Jose Sharks in the Stanley Cup playoffs. Not exactly Point Break material. But when you work in the IP field, especially in a technology related field, you’re surfing the cutting edge of innovation. I love receiving invention disclosures, because you never know what cool gizmo or method the geniuses at your company have come up with. Sometimes, when you see technology rolled out to the masses, you harken back on those meetings you had about it several years prior. Pretty cool. Love it.
  2. Coolness Factor. Let’s face it, any time someone asks you what you do, and the first word out of your mouth is “intellectual”, it’s not a bad gig. And since a surprising number of people have no idea what it is, you’re always explaining it to people. People always have questions to ask about it, and I enjoy answering them. Finally, my wife said she was never attracted to firefighters and police officers and other assorted men in uniform. She always wanted to marry an IP counsel because they’re all so sexy. That’s what I tell myself at least. Read more of this post

An Argument for the “Clear and Convincing” Standard

Earlier this week, on April 18, 2010, the Supreme Court heard oral arguments in the Microsoft v. i4i case. As with any patent related case that makes its way to the Supreme Court, the intellectual property community is eager to see what the outcome is, and what effect it might have on their day to day activities.

Unfortunately, as with most patent cases that make their way to the Supreme Court, the Court is likely to offer a very narrow opinion that leaves many important questions unanswered. Time will tell.

The issue at hand is best summarized by the question presented:

The Patent Act provides that “[a] patent shall be presumed valid” and that “[t]he
burden of establishing invalidity of a patent or any claim thereof shall rest on the party
asserting such invalidity.” 35 U.S.C. § 282. The Federal Circuit held below that Microsoft
was required to prove its defense of invalidity under 35 U.S.C. § l02(b) by “clear and
convincing evidence,” even though the prior art on which the invalidity defense rests
was not considered by the Patent and Trademark Office prior to the issuance of the
asserted patent. The question presented is: Whether the court of appeals erred in
holding that Microsoft’s invalidity defense must be proved by clear and convincing

The “clear and convincing” standard lies somewhere between the “reasonable doubt” standard for criminal cases and the “preponderance of the evidence” standard for civil cases.

Microsoft is essentially arguing that during litigation regarding the validity of a patent, that prior art not considered by the examiner during prosecution of the patent should be subject to the lower “preponderance” standard. i4i, of course, argues that the existing “clear and convincing” standard should remain intact. The rationale behind the current standard is that a certain amount of deference is provided to the United States Patent and Trademark Office (USPTO). Put another way, merely getting more than 50% of the evidence on your side should not allow you to overcome the opinion of an expert body such as the USPTO.

Yours truly isn’t nearly the first to comment on this topic and take a side.

Read more of this post


Welcome to my blog. This is blog post numero uno. If you want a brief background on this page and myself, please go to “About the Monster.”

Copyright 2011, Pav S. Athwal. All Rights Reserved.

%d bloggers like this: