Another Video Game Ban Struck Down

A Louisiana judge has struck down yet another state ban on the sale of violent video games to minors. Judge James issued a preliminary injunction against the Louisiana law noting the long line of cases holding video games are constitutionally protected free speech. Entertainment Software Association president Douglas Lowenstein applauded the ruling, noting the irony in giving video game companies tax credits to locate in the state, only to create a hostile environment for their business. Democratic Representative Janet Peterson of Iowa introduced a similar game ban bill in Iowa, only to have it fail to clear committee over similar constitutional concerns.

A major problem with such bills is that they are often introduced by legislators with little or no knowledge of how these video games are played. While some video games are indeed designed with violence as a main factor, mainly otherwise innocuous video games would fall under such bans as a result of a ten second clip of a ten hour game taken out of context. As there is no way for a video game seller to review every portion of every video game they sell, such laws would force video game retailers to stop selling any video games to minors.

Legislators select the most salacious games in support of their bills which actually cover a much much broader range of much more innocuous games. Subjecting video game retailers to the mercurial mores of a particular town is not the way to resolve the problem. The solution rests with parents. Taking time to play the games WITH your children will not only allow you to judge for yourself what is and what is not appropriate. It will also give you much needed credibility when you lay down the law with respect to which games are not appropriate. Relying on misplaced legislation or video game rating systems is a recipe for disaster. Plus, who knows? You might accidentally have some fun with your kids.


Brett Trout

Other Related Topics:
Video Games, Game Ban, Constitutional Law, Children, Violent Video Games

Justice Department on the Prowl for Software Pirates

The Justice Department is cracking down on software pirates. No longer is the penalty a slap on the wrist. Software pirates are now doing real time in prison and paying millions of dollars in fines. As there is no telling when the Justice Department may expand its focus from distributors to users of illegally pirated software, now is the time for due diligence.

Check with your head of Information Technology to ensure your company policies are in order and that they includes provisions related to unauthorized use of computer software. Also check to be sure there is no pirated software running on any of your company's computers. Once you get caught, it is too late. While ignorance may mitigate some damages and criminal penalties, the civil damages can still be enough to bankrupt a company. Do not be that company.


Brett Trout

Other Related Topics:
Justice Department, Computer Policy, Copyright, Piracy, Software Piracy

Are You Watching Your Employees Surf the Web

In the past, employees might have had a reasonable expectation that their employers were not allowed to monitor surfing practices. Not so anymore. Internet surfing has become so ubiquitous, and the potential liability and loss of productivity so large, courts are siding with employers in cases where they have fired employees for surfing activities.

While it would obviously be best to include the companies surfing monitoring practices in the employees signed employment agreement, courts are becoming more lenient in what notice and warnings are required. As employer monitoring in now pretty much a given in the workplace, courts find that a computer use policy, distributed to the employees constitutes sufficient notice.

With the law in this area changing so quickly, it is important to update your computer use policy regularly. If your in-house lawyer or corporate lawyer is not up to date on the latest changes, ask them for help locating an attorney specializing in this area to review your current policy to determine if it is in line with your current practices.

Brett Trout

Other Related Topics:
Employee Monitoring, Computer Policy, Lawyer, Confidentiality, Right of Privacy

Trade Secrets and Non-Compete Agreements

You hire the wunderkind programmer away from your competitor and get a letter from your competitor's attorney stating that you are liable for damages associated with trade secrets the new programmer has divulged to you. What do you do? You do not even know exactly what a trade secret is, let alone that your new programmer might have given them to you.

The first step,which you unfortunately missed, was to have the programmer sign a statement that he is not bound by any confidentiality or non-compete agreement or duty to his former employer not to divulge trade secrets. If the new employee states there may be some restrictions, it is time to get a lawyer involved to determine how to ensure the employee does not breach any existing obligations. If you have already received a letter from your competitor, it is also imperative that you immediately contact your attorney to mitigate any damages that may be accruing.

What is a trade secret? Well, the exact definition is governed by state law and, therefore varies from state to state. Generally, a trade secret is information which:

1) derives economic value from not being generally known; and
2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy

A trade secret may be a customer list, algorithm, method, recipe, technique or anything that gives you a competitive advantage over your competition. Even if other companies discovered the trade secret on their own, it is still a trade secret if it meets the above criteria.

How may you be liable for "misappropriating" a trade secret? Like the laws governing the definition of trade secrets, the laws governing what constitutes misappropriation also vary from state to state. Generally, misappropriation involves:

1) the existence of a trade secret;
2) acquisition of a trade secret as a result of a confidential relationship; and
3) unauthorized use of the secret

Damages for misappropriation of a trade secret can be devastating. If you publish a trade secret, say, for instance, in a blog post, the trade secret may be destroyed, making the damages even greater. Damages associated with a lawsuit for misappropriation of a trade secret can cripple, or even destroy, your company.

Ask all new employees whether they may have any existing obligations with regard to trade secrets. Even if they deny any such obligations, if you have any doubt, consult your attorney before making the hire. It could be the difference between keeping and losing your company.


Brett Trout

Other Related Topics:
Trade Secrets, Software, Lawyer, Confidentiality, Noncompete

eBay and After the Auction Contracts

You purchase a car on eBay, you discover something is not right and all attempts to resolve the issue are unsuccessful. You decide to sue the seller . . . but wait a minute; there is a clause in the purchase agreement that says you cannot sue, you have to arbitrate. Was the deal done when the seller made an offer and you accepted it. Not so according to U.S. District Judge C. Weston Houck. Judge Houk has ruled that a purchase agreement, signed after the online auction, will prevent you from suing the seller if the purchase agreement contains an arbitration clause.

Be very wary of anything you sign after an online purchase. Although arbitration is designed to be cheaper, faster, and fairer, I personally have not found this to be the case. For me, taking the other party to court, has proven much more expeditious in resolving the matter quickly and efficiently. Indeed, I purchased a vehicle online, had a dispute with the other party and was unsuccessful in coming to a resolution. I sued the seller in federal court and the issue was resolved in a matter of weeks. If I had signed a purchase order mandating arbitration, resolution could have taken years and cost tens of thousands of dollars.

If you win an auction for a high dollar item, before you sign anything, contact a lawyer with experience in online contracting. Paying an experienced lawyer a few dollars early on can save you tens of thousands of dollars and much heartache down the road.

Brett Trout

Other Related Topics:
eBay, Online Auction, Arbitration, Lawsuit, Jurisdiction

Shop Rights

You use your employer’s computer and development software to develop a great new software program after work. Who owns the software? To balance the rights of employers and employees, and to maximize the incentive to invent, courts have developed the “common law” (a court made law not passed by lawmakers) of “shop rights.”

Shop rights give the employee ownership of the invention, but give the employer the non-exclusive, non-transferable, royalty-free right to use the invention in the employer’s business. The employer cannot sell or transfer its shop rights, use the invention outside the business or prohibit the employee from exploiting the invention. If the employee leaves, the employee can take the invention, but must leave the shop rights with the employer.

In determining whether an employer is entitled to shop rights, a patent lawyer looks at each case individually. Among other things, courts look at:
1) what time (on the clock or off) and tools went into the development of the invention:
2) any contracts (written or unwritten) between the employer and employee;
3) whether the employee allowed the employer to use the invention; and
4) whether the employee helped the employer use the invention.

Shop rights are not an ownership interest in a patent. They are merely a defense to a charge of patent infringement by the employee or an assignee of the employee’s patent rights. The employee does not have to have been hired to invent or even have an employment agreement with the employer. There must merely be an employer/employee relationship.

As with other types of rights, the employer and employee can contract to increase or decrease these shop rights. Many companies have certain employees sign an agreement stating the company owns all inventions of the employee. Some jurisdictions however limit companies’ ability to capture by contract those unrelated inventions employees invent on their own time, using their own tools.

Other Related Topics:
patent, shop rights, lawyer, employment, employee

Does Your Company Have a Blogging Policy?

1. Make it clear that the views expressed in the blog are yours alone and do not necessarily represent the views of your employer.
2. Respect the company’s confidentiality and proprietary information.
3. Ask your manager if you have any questions about what is appropriate to include in your blog.
4. Be respectful to the company, employees, customers, partners, and competitors.
5. Understand when the company asks that topics not be discussed for confidentiality or legal compliance reasons.
6. Ensure that your blogging activity does not interfere with your work commitments.

Brett Trout

Patent Examining with Wikis

CNN Money has posted an article by Fortune senior writer Nicholas Varchaver who reports the United States Patent and Trademark Office (USPTO) is embarking on a pilot software patent examination program. The program will allow those complaining about overly broad software patents to become part of the solution. The problem stems from patent examiners having too little time to review patent applications and not having a sufficient wealth of information regarding the state of the technology already in other patents or in the public domain.

The goal of the pilot program is to use a wiki to allow other inventors to sift through the volumous amount of available information and provide only the most pertinent information to the patent examiner. The pilot program uses a "wiki"format. According to Wikipedia, the free online encyclopedia (and a wiki itself), a wiki is "a type of website that allows users to easily add, remove, or otherwise edit and change some available content."

The pilot program will allow third parties to examine the proposed patent application. The third parties may then research pubicly available information to propose the most closely-related material and submit it to the wiki. Others may them comment upon and rate the quality of the submission. The examiner will then review the merits of the patent application against the highest rated submissions.

The hope is that this program will eliminate the problem the USPTO has had in the past issuing broad patents covering known technology.

Brett Trout

Other Related Topics:
Patent, USPTO, Wiki, Patent Lawyer, Patent Application

Free Book!

If you have not already, be sure to check out my book Internet Laws Affecting Your Company. Receiving rave reviews since its publication, Internet Laws Affecting Your Company answers many of the questions you would otherwise have to pay an expert $300/hr or more to answer.

While not a substitute for the advice of an attorney, Internet Laws Affecting Your Company brings you up to speed on the relevant issues before you speak with your attorney, helping you to ask the right questions and making every billable hour more productive. For attorneys, Internet Laws Affecting Your Company serves as a handy desk reference, helping you to identify issues and speeding your research.

To thank my loyal readers, I am offering a free copy of Internet Laws Affecting Your Company to the first person adding a comment to this post. Check out the customer reviews for this book. Don't miss out!

Brett Trout

How to Draft a Patent Application

Patent Applications are tricky. Even the United States Patent and Trademark Office recommends you get an expert to draft your patent application. It is possible to draft your own patent, heck if the late night informercial lackeys can do it, anyone can. While you do have to be a federally registered patent attorney or patent agent to draft a patent application for someone else, you can draft your own application yourself. Although you might draft your application, and might even get the patent, it would be very unusual to get a patent with broad coverage. Most likely, you will end up with a very narrow patent, unlikely to be useful in stopping anyone from doing anything.

Even if you did obtain some coverage, even a slight error in the your dealings with the USPTO in getting the patent could later invalidate the patent altogether. For those interested, I did find some information on drafting your own patent. I provide this link, however, as more informational than instructional. I would put drafting your own patent right up there with doing your own brain surgery. Although the information on the link is generally good, I strongly disagree with some of the information. One example would be writing the claims first and having your patent attorney "review" them. This usually takes longer and/or costs more than just having the patent attorney do them right the first time.

Even if you have the book right there, it is probably not going to avoid a catastrophe. The link is valuable, however, in allowing you to familiarize yourself with the process and follow along with what your patent attorney is doing.

Brett Trout

Other Related Topics:
Patent, Inventor, Invention, Patent Lawyer, Patent Law

Digital Millennium Copyright Act Take Down Notice

On October 28, 1998, President Bill Clinton signed HR 2281, the Digital Millennium Copyright Act (DMCA) DMCA into federal law. Title II of that law, otherwise known as the Online Copyright Infringement Liability Limitation Act (OCILLA) provides network service providers, such as internet service providers (ISPs) with a “safe harbor” to avoid conflicting suits for keeping infringing material on their network, or removing content erroneous accused of being infringing.

OCILLA contains specific procedures a copyright holder must follow to get infringing uses of their work removed under the DMCA. To gain the safe harbor provisions of the DMCA, ISPs must designate an “agent” to receive “take down notices” of infringement. If you identify an online infringing use of your copyrighted work, you can send a take down notice to the designated agent of the associated ISP to have the work removed under the DMCA. An appropriate take down notice must include:
1 A signature of the copyright owner or a person authorized to act on their behalf;
2 Identification of the copyrighted works or a representative list of such works;
3 Identification of the material that is claimed to be infringing sufficient to permit the ISP to locate the material;
4 Contact information for the complaining party (the party providing the notification letter);
5 A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6 A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the copyright that is allegedly infringed.
Under OCILLA the accused infringer has the option of providing a counter take down notice to the designated agent of the ISP if the accused infringer feels there exists a legitimate right to use the material. The counter take down notice must include:
1. A signature of the subscriber;
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
4. The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided the take down notice or their agent.
Once the subscriber files a counter take down notice, the originally complaining party has fourteen days to file a copyright lawsuit in federal court. If the originally complaining party does not file a lawsuit, the ISP then puts the accused material back up.
To earn the protection of the safe harbor provisions of OCILLA and DMCA, the ISP must:

1. Not have previous knowledge the material is infringing;
2. Not have facts that make it obvious the material is infringing;
3. Remove the material “expeditiously” upon receiving a take down notice;
4. Not receive a financial benefit from AND control the infringing activity;
5. File their designated agent with (and pay the fee to) the US Copyright Office;
6. Provide their designated agent contact information on their website;
7. Implement a policy to terminate subscribers who are repeat offenders; and
8. Accommodate technical measures designed to protect copyrighted works.

Brett Trout

Other Related Topics:
Take Down Notice, DMCA, OCILLA, copyright, Infringement

Wholaw Blawg Seminars

Wholaw is a new blog promoting legal seminars in Des Moines, as well as other cities in Iowa. Attorney Rush Nigut of Sullivan and Ward and I have teamed up to unveil the first in a series of seminars dedicated to twenty-first century legal issues. Our first seminar covers the nuts and bolts of "blawging" and why it should be important to the lawyers in your firm. The blawg seminar will include not only getting your blawg up and running quickly, but also tips on how to generate quality content and a base of avid readers.

Brett Trout

Other Related Topics:
Des Moines, Iowa, lawyer, Blawg, CLE

Criminals Making Real Money Stealing My Virtual Stuff

Games such as World of Warcraft allow players to increase their strength and abilities with gold which they gain through various in-game activities. Some players bypass the rules of the game and purchase gold directly from of other players. This buying virtual gold with real money has led to a cottage industry of players playing for gold, rather than fun. Although Blizzard Entertainment, the makers of the game, have flexed their legal muscles in an attempt to quash some of this activity, shutting down people capitalizing on the exchange of information has proven difficult.
Now a new threat has arisen. Hackers break into the game, steal a player’s account information and then proceed to sell all of the player’s virtual wealth for real money, sometimes amounting to several thousands of dollars. Microsoft security development engineer Dave Weinstein warned online gamers "Those of you who are working on massively multiplayer online games, organized crime is already looking at you."
One of the huge attractions for criminals is the legal’s system’s lack of understanding of computers. If someone stole my wallet or stole my identity in real life, the police and courts have experience with these situations and are equipped to handle them. If someone stole $10,000 worth of virtual property or sold my account information, the judicial system is unlikely to take action. Most police and judges understand very little about the online gaming environment and are unwilling to set new precedent in protecting online property.
Criminals exploit this lack of knowledge and unwillingness to intervene. The problem will continue to increase, with millions of dollars being taken illegally every year, until law enforcement and the courts decide to make this real-world theft a priority.

Brett Trout

Other Related Topics:
World of Warcraft, WoW, Crime, Virtual Crime, Gaming

See Into the Future of Television

The Phosita Blog has a great idea--search the Trademark Office to find the names of reality television shows before they hit the airwaves.
As an example, Phosita searched for the Trademark Electronic Search System for American Idol to find out who owned the trademar, then searched by that owner's name to see what other trademarks they were trying to get. Some new shows Phosita has found include:

* Bad Mothers of America;
* Celebrity Idol;
* American Caveman;
* Dallas Wives.

Brett Trout

Tips For New Inventors

Recently, I published a post covering Inventor's Digest offering a free booklet of compiling the Digest's best advice for inventors. As a blogging patent lawyer, I found myself perusing ip-updates blog and ran across the following selection from the Inventor's Digest booklet entitled Ten commandments of individual inventors.

1. Stay away from invention marketing companies that advertise on radio and late night TV.
2. Keep good records about your idea . . . some day they may be the back up you need to prove YOUR idea is YOURS!
3. Do your own patent search.
4. Build a model.
5. Have your invention evaluated by a non-biased professional (even if your Mom’s in the business, go to someone else!)
6. Read all you can about new product development.
7. Network with other inventors. Join a local inventors' organization.
8. If your patent search looked promising (see #3), make an appointment with a patent attorney.
9. Do what you do well and hire pros to do the rest.
10. Don'’t fall in love with your invention but if you're really sure you've got a winner(see #5), hang in there!

Brett Trout

Top Ten Reasons NOT File Your Patent Under the New Acceleration Rules

Earlier this month I wrote about the United States Patent and Trademark Office's new accelerated examination procedure for patent applications. Turns out, there are more than a few drawbacks to the new procedure. As noted in the Patently-O blog, the accelerated examination rules can significantly increase your client’s up-front costs, and may even cause your client to lose certain rights.

There are several reasons a reasonable patent attorney might think twice before filing for an accelerated examination procedure. In addition to being expensive, the new accelerated examination procedure requires you to:

10. File patent application electronically in condition for examination, along with the petition to make special (with all fees paid and appropriate declaration);
9. Conduct a search of, and submit all relevant, prior art (including expensive to search foreign references and non-patent material);
8. Identify where limitations in the claims are disclosed in the submitted references (with citation to the references);
7. Explain prior art teaching and how applicant's claims are different;
6. Explain the usefulness of the invention and how the written description supports the claimed invention;
5. Include a max of 20 claims (3 independent);
4. Agree to base claims of patentability only on the independent claims;
3. Respond to Office Actions within one month or risk abandonment;
2. There is no way to withdraw from special status. Once you commit to it you are bound by the special rules;
1. Not amend any claims outside the scope of the initial search, increase the allotted number of claims or direct claims to non-elected inventions without an updated accelerated examination.

Brett Trout

Other Related Topics:
Patent, Patent Lawyer, Patent Office, USPTO, Patent Application

Brett Trout

Sansone Blogging Workshop

Des Moines blog guru Mike Sansone is offering a FREE two hour business blogging workshop on August 17, and you are invited. The workshop will cover topics like:
• How to follow the conversations using social media search tools
• Why your company should engage in these conversations
• What are the differences between blog sites and (cob)web sites
• Questions to answer before you begin blogging
If you are interested, you can register here. Hurry, the workshop is limited to the first twenty five registrants.

Free Information for Inventors

Perusing Stephen Nipper's Patent Blog, I ran across a post I think most inventors would find very useful. Inventor's Digest is offering a free booklet of compiling the Digest's best advice for inventors. Hurry though; this offer ends with the month of August!

Other Related Topics:
Patent, Inventor, Invention, Patent Lawyer, Patent Law

Small Inventors - Let Your Voice Be Heard

The Professional Inventors Alliance (PIA) is very concerned that a patent reform bill introduced last week by Republican Orrin Hatch from Utah and Democrat Patrick Leahy from Vermont, is really just a "wish list" for "antipatent, washed-up tech companies" reports CNET. The PIA believes the bill undermines the protections patents provide to individual inventors. According to CNET, PIA president Ron Riley believes "the bill would reward those who can afford to file quickly and often...will tilt the balance of power in favor of well-heeled patent pirates and would greatly lower the ability of inventors to get fair compensation when they are forced to sue disreputable companies."

One of the main features of the bill is that it would change our procedure to award patents to the “first to file” rather than the “first to invent,” a measure supported by chief of the U.S. Patent and Trademark Office Jon Dudas. The bi-partisan bill also provides a post patent grant opposition period, allowing anyone to challenge a patent. The opposition would be before a board of administrative judges within the Patent Office, rather than in the federal court system. The hope is that the Patent Office can handle these matters more quickly and inexpensively.

The bill also attempts to stifle forum shopping and patent trolls by limiting the venues wherein a patent holder can file suit and limiting damage award to the pro rata value of the invention to the final product. Hatch has invited the public to assist in refining the bill to address potential problems with his recently introduced bill.

Other Related Topics:
Patent, Congress, Invention, USPTO, Patent Law

What if 2+2 really does not equal 4?

Tuesday, the United States Patent and Trademark Office issued Amazon a patent for Amazon's state of the art system for weighing packages. Apparently the patent covers a method for estimating how much a package should weigh, based upon the estimated combined weights of the books inside, and comparing this to the actual weight of the package. If the weight is outside the estimated range, you look inside and find the problem. Seems difficult to believe there exists no combination of prior art patents that would make this system obvious.

Other Related Topics:
Patent, Amazon, Invention, USPTO, Patent Law

Get More Out of Your Inventors

Inventors are typically overworked and underpaid. They do their job because they love the work. Encouraging inventors to be more creative or spend more time on patent protection paperwork can be difficult. I mean, who WANTS to talk to a patent attorney? Fortunately, time and money do not drive most inventors.

What inventors really desire is recognition of their creative efforts and their contributions to the company. Instead of cash or time off, try engraved patent plaques to hang on their walls or discounts on company products. Having something tangible recognizing their contribution is far more satisfying than money for most inventors. Be creative. Look at what non-monetary recognition your company may have to offer. A little thinking can increase your R&D output while at the same time making your inventors much happier.

Other Related Topics:
Patent, Inventors, Invention, Patent Attorney, Patent Law

Get Your Patents Faster

The Department of Commerce’s United States Patent and Trademark Office (USPTO) now gives patent applicants the option of getting a final decision on patentability within 12 months. To qualify for this “accelerated examination,” patent applicants who file under this procedure must conduct a patent search to determine the closest "prior art," submit all prior art that is closest to their invention, and explain what the prior art teaches and how their invention is different.

In addition to providing and explaining any prior art references, patent applicants must explicitly state how their invention is useful and must show how the written description in the application supports the claimed invention. The new regulation also limits the number of claims allowed in each applition and requires patent applicants to respond more quickly.

Jon Dudas, under secretary of commerce for intellectual property, explained the proposal by noting that “accelerated examination can provide innovators with the early certainty they may need to attract investors or protect their inventions against infringers.”

Inventors can patent any invention that is new, useful, non-obvious, and is accompanied by a written description disclosing how to make and use the invention. The USPTO presumes patent applications will be valid. To reject a patent application the USPTO must identify evidence indicating that the invention is not new or is obvious (known as “prior art”) and explain why the invention is not patentable in view of the prior art.

The USPTO has designed the accelerated examination procedure to give applicants quality patents in less time. In exchange for quick examination, patent examiners receive from applicants more focused and detailed information about the invention as well as the closest prior art. Increased disclosure upfront by applicants will help examiners make the correct decision more quickly about whether a claimed invention deserves a patent. For more information, check out the new patent reg.

Other Related Topics:
Patent, Patent Application, USPTO, Patent Attorney, Patent Law

Be the First Blog on Your Block with a Trademark

You have a great name for your blog, you have dozens of posts, your readership is growing by the day, your Google rank is climbing, then it all comes crashing down. Now, a competing blog using the same name ranks higher in Google, your readership dwindles and you have no recourse. What can you do? Well, if you had gotten a federal trademark registration on your domain name, you could simply write a cease and desist letter. With a federal trademark registration backing them up, cease and desist letters typically work wonders. Without a federal trademark registration, the cease and desist letters typically get thrown away.

Another advantage of federal trademark registration is that it serves as constructive nationwide notice of your trademark rights. You will not have the problem of someone else getting a federal registration on your name and then suing YOU over the name. The number of trademark registrations on blog names is increasing at an incredible rate. Do not miss your opportunity to protect your baby.

Other Related Topics:
Trademark, Trademark Lawyer, blog, USPTO, Trademark Office