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Archive for the ‘Intellectual Property’ Category

Similar drawings, copyright infringement? Art Seidel showed a jury the answer was NO.

I’m breaking my arm patting myself on the back … at least for being quick on the draw.

I was able to come up with an additional answer to the following question, moments after it was posted on Avvo.com:

Q: Can I use mythological creatures on a card game?: Are mythological creatures, such as chimeras, wyverns, cerberus, mermaids, spirits, dragons, etc. of public domain? What I mean with this is, may I use this concepts on a card game without facing any possible sues for trademark or copyright infringements based on the character concepts?

Considering the artwork won’t be exact copies of any existing card game or illustration made before. Just the concept like: dragon.

A couple of other lawyers had already responded within minutes, but brownie points were available for a third answer if provided immediately.  I recalled an excellent article about a successful copyright infringement defense that I’d read years ago in The Philadelphia Lawyer.  And I recalled that Art’s firm had posted the article on the Web.  So I immediately found the link to it and posted:

A: Gerry’s answer: This was a good question, and attorneys Jacobson and Michelen provided some good answers.

From a copyright standpoint, you want to minimize the likelihood that you’d be creating a “derivative work.”

See this article by attorney Art Seidel http://www.drinkerbiddle.com/Templates/media/files/publications/2001/a-case-of-variations-on-a-theme.pdf

It tells the story of how he successfully defended a claim that a particular artist had created a “derivative work” depicting cardinal birds from a copyrighted work that the artist had previously sold to the Franklin Mint.

If you haven’t already read Art’s story, now’s a good time to enjoy it.  What a brilliant litigator he was!

 

Gerry Elman and Josh Waterston presented cybersecurity seminar at Delaware County Bar Association on Feb. 24, 2016

Elman Technology Law attorneys Gerry J. Elman and Joshua D. Waterston

Here is the announcement we posted for the event:

We are proud to announce that Elman Technology Law attorneys Gerry Elman and Joshua Waterston will be presenting the legal seminar “Cybersecurity Ethical and Legal Challenges: How to Protect your Clients and Your Firm” at the Delaware County Bar Association on Feb. 24 from 12 p.m. to 2 p.m. (2 CLE credits: 1 substantive + 1 ethics). Come be informed and entertained by our knowledgeable and interesting panelists.

To register, click here for the DCBA registration page.


DELAWARE COUNTY BAR ASSOCIATION CLE SEMINAR

WEDNESDAY, FEBRUARY 24, 2016

“CYBERSECURITY ETHICAL AND LEGAL CHALLENGES: HOW TO PROTECT YOUR CLIENTS AND YOUR FIRM”

Bring your own brown bag lunch and beverage

PresentersGerry J. Elman, Esquire and Joshua D. Waterston, Esquire of Elman Technology Law.  Joshua Marpet of Guarded Risk.  Robert Wilner of Prevalent.

Law firms are treasure troves of sensitive information about their clients and themselves.  This seminar will enable you to confront today’s increased cybersecurity threats, comply with heightened legal and ethical requirements, and keep your clients’ information and your law firm’s information confidential and secure.  Topics will include:  1) compliance with PA’s requirement to understand the benefits and risks of technology you use; 2) tips to identify and secure sensitive information about your clients and your law firm itself; 3) compliance with data breach notification laws and updated HIPAA requirements; and 4) how to minimize your financial and legal risk from a data breach or data loss.

REGISTRATION: 11:30 a.m. – 12:00 p.m.; SEMINAR TIME: 12:00 p.m. – 2:00 p.m.; COST:  $75.00 for DCBA Members;  $95.00 for Non-Members of the DCBA;

WORTH:  2.0 CLE Credit Hours (1.0 Substantive Law and 1.0 Ethics CLE Credit Hours)

It’s Christmas Eve: Internet systems at patent offices in U.S.A. and Australia have crashed. Just coincidence?

"Lights Out: A Cyberattack ..." by Ted KoppelChristmas Eve 2015:  Why are the Internet services at the government patent offices in both the United States and Australia shut down right now?

Did you heed last month’s book release by Ted Koppel: “Lights Out
A Cyberattack, A Nation Unprepared, Surviving the Aftermath

Remember my talk in July 2011: “Are you legally prepared for the coming cyberwar?

Do the dots connect?

–Gerry J. Elman

Here’s the official announcement of the disaster at the U.S. Patent and Trademark Office, as posted December 24, 2015 on  home page of www.uspto.gov

A major power outage at USPTO headquarters occurred Tuesday, December 22, resulting in damaged equipment that required the subsequent shutdown of many of our online and IT systems. This includes our filing, searching, and payment systems, as well as the systems our examiners across the country use. We are working diligently to assess the operational impact on all our systems and to determine how soon they can be safely brought back into service. Status updates and alternative filing methods can be found on our systems alert page (www.uspto.gov/blog/ebiz/) as they become available, as well as on our Facebook (www.facebook.com/uspto.gov) and Twitter (www.twitter.com/uspto) accounts.Thank you for your patience as we work to restore full service as soon as possible.
———————————–

And here is what “IP Australia,” the government patent office Down Under, is telling the public:

eServices and Business to business (B2B) will be unavailable until Monday 4 January 2016.

This outage is due to a system issue.

We will enable the Alternate Lodgement Service (ALS) for eServices during this outage. The ALS is a simplified version of eServices that allows electronic submissions during outages and downtime. You will be automatically redirected to the ALS if you attempt to access eServices during the outage period. You will need to agree to new terms and conditions to use the ALS and you will not be required to sign in.

We sincerely apologise for any inconvenience. If you require further information please email eservices@ipaustralia.gov.au.

Don’t Let a Defective Provisional Sink Your Patent


Invest the time and money in crafting a complete provisional patent application. It will be the foundation for a strong and enforceable patent. Avoid the pitfall of filing a “quick and dirty” provisional. Whatever you imagine you’ll save upfront will be wasted in the long run when the patent turns out to be worthless.

Unfortunately, some companies and inventors have been taken in by the dangerous myth that a provisional U.S. patent application is but a first draft – that you can “just write something quickly and get it on file.” But in fact, a provisional application must describe the invention as completely as a non-provisional application. A “quick and dirty” description is likely to omit something essential. Instead of laying a foundation for a valid patent, the inventor could wind up with nothing.

Congress created the provisional application in 1995, to give American inventors a simplified initial patent filing. A supposed benefit was that provisional applications needn’t include formal patent claims, presumably lowering the cost of preparing this preliminary application. Nevertheless, a provisional application is defective unless its written description adequately supports the claims of the non-provisional application that will issue as a patent.

New Railhead Manufacturing learned this the hard way.  In 1996, their engineeringFig 4 label removed - Dont Let a Defective Provisional Sink Your Patentteam invented an improved bit to drill horizontally through solid rock. Before then, when a utility wanted to lay cables and pipes under a street, the entire street would be ripped open. With this tool, you could efficiently drill under the street without tearing up the pavement. In mid-1996, New Railhead began selling the new drill. Hoping to protect their revolutionary technology, the company filed a provisional patent application in February 1997, and then filed a non-provisional application in November 1997 with description and drawings that were more complete. The Patent Office examined the application and agreed the invention was patentable. The patent issued in May 1999.

New Railhead’s success quickly attracted copycats. Other companies, including Earth Tool Company, began to sell their own version of this drill. New Railhead wasted no time defending their turf: the day after the patent issued, they sued Earth Tool for infringement. But sadly for New Railhead, Earth Tool persuaded the judge that the patent was invalid.

Earth Tool’s lawyers had detected a defect in the patent applications. The claims that issued from the non-provisional application stated that the drill bit attached to its housing at an angle. Unfortunately, that aspect was missing from the provisional application. After placing the drill on sale in mid-1996, New Railhead needed to file a complete patent application within 12 months, or be barred from ever getting a patent. The provisional patent application was filed on time but, unfortunately, wasn’t complete. The non-provisional application was complete, but it was filed too late. The appellate court in Washington, D.C. agreed with the district judge that the incomplete provisional was too weak to serve as a foundation for the claims of the later-filed non-provisional application. So the copycats could continue copying with impunity.

Inventors need fully-descriptive patent applications to protect their precious inventions, but few inventors can see their inventions with a stranger’s eye. The patent attorney’s independent perspective complements the inventor’s vision, and together they produce a more complete description of the inventive concept and its various ramifications. Don’t go it alone: you and your patent attorney are more valuable together than apart. Partner up from the outset, to ensure that your provisional application provides a rock-solid foundation to support the patent you are hoping for.

Oct. 20, 2014 – Meet Steve Zeman and get tips about European Patent Office practice

Join us Monday, October 20, 2014,  for a presentation at noon by European Patent Attorney Steve Zeman, of the Grünecker firm in Munich.

Steven M. Zeman, Ph.D.

Steven M. Zeman, Ph.D.

We look forward to learning from Steve’s extensive experience with the European Patent Office in seeking to overcome “new matter” objections and other particular difficulties.

Though educated primarily in the United States, Steve is licensed as a German and European Patent Attorney and as a European Trademark Attorney.  He holds degrees in chemistry and biochemistry from the University of California at San Diego and from Yale (Ph.D. 1999).

This meeting is co-sponsored by Elman Technology Law and Bob Yarbrough’s Delaware County Pennsylvania Intellectual Property Forum.  Pennsylvania CLE credit will be available for existing and new members of the Forum.   Participation is free of charge, but preregistration is required.  Call 610-892-9942 for further information or to register .

Venue: the Delaware County Bar Association headquarters, 335 W. Front Street, Media, PA 19063, basement conference room.  You’re welcome to bring a “brown bag” lunch.

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