In re Bilski

Monday is the last day for Supreme Court rulings to issue for this term. So far, no opinion in In re Bilski, the major patent case this term, has come down. Some people are thinking that it'll have to come down Monday, because the Court won't want it to hold over into the next term. PatentlyO makes that argument. They also make the argument that it'd be better for the appellant here to drop the case before the ruling issues, and that the only reason for the appellant to pursue the case is that they want business-method patents to suffer a setback. I think Crouch is wrong, Bilski is appealing only because it's the only way to overcome the setbacks they've suffered thus far (see the documents on the case at Groklaw).

Crouch does make an interesting point, though, and one that gives hope that the Court will uphold the denial of the Bilski patent and, by extension, support the Patent Office's new position that purely abstract things like business methods aren't patentable. That's that Monday is Justice Stevens' last day on the Court. He's also the only Justice who's short on delivered opinions, if he's writing the Bilski opinion it'd bring him right into line with the other Justices. If that's so, Stevens also has a track record in opposition to things like patents on abstract ideas and non-physical things. If he's writing the opinion, it's likely because the opinion was in line with his track record and not favorable to Bilski. This'd be good news for software developers. These days one major problem in software development are patents that are over-broad and vague, with their holders trying to apply them to everything in sight. Or patents on blatantly obvious or long-existing things like a shopping cart (but in a Web browser!). Between Bilski and KSR v. Teleflex, the courts and the USPTO have given opponents of over-broad patentability a lot of ammo. That's also another point in favor of the Court upholding the appeals court in Bilski, that'd be in line with it's thinking in KSR.

The alternative, of course, is that the Court decided to give Stevens a light load because he's retiring and the Bilski opinion will be held over for next term. But we can hope that's not the case.

SCO v. Novell: stick a fork in them, they're done

It's official: the jury ruled in SCO v. Novell that Novell owns the copyrights that SCO was trying to claim. That pretty much puts paid to all of SCO's dreams of a litigation-lottery win in the IBM case too. IBM's not inclined to settle, and pretty much all that's left is IBM's counterclaims against SCO. SCO has a few scraps of claim left, but all the evidence they're presented put together doesn't amount to enough to make a porn starlet's bikini.

Here's the actual jury verdict form.

SCO v. world in a nutshell

To borrow from Darl's favorite cattle-rustler metaphor:

Darl had some cows on his ranch. He noticed that some of the cows on other people's ranches had the same brand as his, so he decided to get a posse together to go after those cattle rustlers who'd stolen his cows.

Then it was discovered that the brand wasn't Darl's, it was the brand of a completely different ranch that'd sold cows to just about everybody in the valley. And worse, as it turns out Darl hadn't even bought those cows, some of his own hands had found them wandering on his land and put them in with the rest of the herd. So now not only are the other ranchers mad at Darl for accusing them of stealing cattle when they hadn't, but some of them are accusing Darl of being the cattle thief.

But poor Darl's still positive that somebody somewhere had to have stolen some cows that should've belonged to Darl if he could've afforded to buy them.

Trademark ownership

An interesting decision about trademark ownership. What's interesting about it is that the judge ruled that trademark use trumped a registered trademark. A lot of companies have been treating trademarks as if registration, however recent, trumped all common use no matter how long-term and well-established. The judge here threw that reasoning out, ruling that the Dallas Cowboys, even though they didn't have a formal registration on the phrase "America's Team", nonetheless owned it by virtue of long use of the phrase and it's association with the team. This overturned the relatively recent registration of that phrase as a trademark by another company.

This is good news for people who've been using names and phrases associated with their products. When someone else comes along, registers that name or phrase as a trademark and tries to usurp your usage on the grounds that a registered trademark trumps an unregistered one, you can point to this decision and say "The courts say otherwise.".

aseigo on new MS/Novell deal

http://aseigo.blogspot.com/2008/08/microsoft-and-novell-reaffirm-pact.html

aseigo has some comments on MS's new deal with Novell to buy more Linux support coupons. I have to agree with him. One thing that has bothered me with MS's activites is their nebulous claims about their IP that's supposedly infringed upon by Linux. My first reaction is "I'm from Missouri. Show me.". Exactly what intellectual property does Microsoft claim to own that's being infringed upon, and exactly what in a Linux distribution infringes upon it and how? Lay it out and let's get it resolved. And yet Microsoft won't do that. They play coy, dodging around saying exactly what it is they're accusing Linux of. And my immediate reaction to that is to think that they really don't have any claim that'll stand up to public scrutiny, that if they had to actually lay it out all they'd end up with is "We got nuthin'.". And that makes me immediately suspicious of any deal that supports them in this. When someone's running a scam (which is what a false claim to get others to pay you is, a scam), there's only two kinds of people doing business with them: marks, and accomplices. I probably want to avoid both.

DMCA: copyright owners must consider fair use

Copyright owners must consider fair use before filing a DMCA takedown notice. The full decision is here. The basic upshot of this is that copyright owners are required to consider whether a use of their material would reasonably be considered fair use under copyright law. The DMCA requires that the copyright owner have a good-faith belief that the use is infringing before they can file a takedown notice, and if the use falls under fair use and a reasonable person would have concluded this beforehand then the "good-faith belief" test fails. That, BTW, leaves the copyright liable for damages and penalties if the target of the notice wants to push it. The downside, of course, is that showing bad faith is a difficult thing to do in court, but still it's nice to have the principle upheld.

The judge says he's not sanguine about the defendant's chances of proving bad faith on the part of the plaintiff. I'm not so sure, at least if the judge is unbiased about it. The infringement in question is a song playing in the background of a baby video posted to YouTube. The Supreme Court has set forth 4 factors to consider in determining fair use: the nature of the use (commercial vs. non-commercial), the nature of the infringed work, the amount and substantiality of the portion used and the effect of the infringement on the potential market for the work. It's going to be very hard for a record label to argue that people are going to put up with watching someone's baby video repeatedly just to save the cost of buying the song. They're also going to have a hard time arguing commercial use, YouTube may put ads on the page but the uploader doesn't get any money from them and has no control over them and the entity that does get the money (YouTube) isn't the one the plaintiff's making a claim against. Even the nature of the copyrighted work works against the label. The work is a song, and it's merely incidental background noise in a video whose point is to showcase the uploader's baby. The only factor that works anywhere near in the plaintiff's favor is the amount of the song audible, and that's countered by the fact that the song's purely incidental background. As I said, it's not likely anyone's going to look at this video mainly for the music, any more than anyone watches a football game mainly to see the advertisements pasted around the stadium. Given all that, if the defendant's got a good lawyer I think they can make a very strong case that plaintiffs couldn't reasonably have believed the use wouldn't meet the qualifications for fair use. And proceeding when you know or should know otherwise is the very definition of bad faith.

California IP and non-compete law

As a follow-up to the last post about non-competes, I thought I'd repost links to the relevant California codes on intellectual-property and non-compete agreements:

• California Labor Code 2870-2872 on intellectual-property agreements
• California Business and Professions Code 16600-16607 on non-compete agreements

Anyone in the tech field in California should be familiar with these, because tech companies routinely put terms in their employment agreements that exceed what these laws allow. I made sure, when I signed my intellectual-property agreement, to add a notation referencing the limitations in 2870-2872 and making my acceptance limited to only what was allowed by those sections of the law.