33rd Annual ABA Intellectual Property Law Conference, April 18-20, 2018

33rd Annual ABA Intellectual Property Law Conference, Arlington, Virginia

[Kip Currier: 1st full day of this year's American Bar Association Intellectual Property Law Conference. Lots of intriguing sessions to choose from...case in point, the 10:15 AM slot has two concurrent ones I want to attend--Trademark/Ethics: Ethical Issues in Emerging Technology and Copyright: Copyright Law and Policy Developments.

I'm also attending the Mark T. Banner luncheon today, featuring Simon Tam of the band The Slants and his legal team, who last year won a major federal trademark law case, Matal v. Tam (previously Lee v. Tam), involving so-called disparaging trademarks. The case presented potentially significant implications for free speech and economic interests. Tam and his band spoke as part of a very thought-provoking panel at Duquesne University last April, before the U.S. Supreme Court had announced its decision in June 2017. The Slants prevailed, in a unanimous decision.

I talked with Tam after the April 2017 panel about the case and he insisted on having his bandmates sign the band's poster I'd purchased.

It will be interesting to hear thoughts from the various parties a year later, regarding post-Matal v. Tam implications...]


Thursday, April 19

7:00 am – 5:00 pm	Registration • Print Café • Sponsors
7:15 am – 8:30 am	Conference Connections New Members • First-Time Attendees • Young Lawyers
8:30 am – 10:00 am	Patent: Impact of Heartland on District Court Litigation
8:30 am – 10:00 am	Trademark: From the Practitioners' Perspectives: Managing Discovery in Trademark Cases: TTAB vs. Federal Court
8:30 am – 10:00 am	Copyright/Social Media: #Ad Disclosures
10:15 am – 11:45 am	Patent: Ask the Office: Hot Topics with the USPTO Commissioner for Patents
10:15 am – 11:45 am	Trademark/Ethics: Ethical Issues in Emerging Technology
10:15 am – 11:45 am	Copyright: Copyright Law and Policy Developments
12:00 pm – 1:30 pm	Mark T. Banner Award Luncheon Honoring Simon Tam and his legal team during a special presentation.
1:45 pm – 3:15 pm	Patent: Coming Together: Worlds Apart
1:45 pm – 3:15 pm	Trademark: Proving a Negative: Best Practices for Prosecuting and Defending Non-Use Abandonment Proceedings in the US & Abroad
1:45 pm – 3:15 pm	Copyright: The Right of Publicity
3:30 pm – 5:00 pm	Specialty: Growing Your Start-Up IP Practice
3:30 pm – 5:00 pm	Trademark/Copyright: Fictional Characters in 3D
3:30 pm – 5:00 pm	Specialty/Ethics: Multijurisdictional Practice and the Modern Ethical IP Attorney

A Nexus of Fan Culture and IP: Steel City Con Cosplay Pics...AND the Real McCoy--err, Eden; Steel City Con, April 13-15, 2018

Kip Currier, "A Nexus of Fan Culture and IP:
Steel City Con Cosplay Pics...AND the Real McCoy Eden": 

Chewbacca and Frenemies
James "Kip" Currier (c) 2018

Jurassic Park ranger "Show & Tell"
James "Kip" Currier (c) 2018

Star Wars Families: They're Just Like Us!
James "Kip" Currier (c) 2018

3 Jawas and a Stormtrooper walk into a Bar...
James "Kip" Currier (c) 2018

Holy Sith!
James "Kip" Currier (c) 2018

R2D2 chillin' at Steel City Con
James "Kip" Currier (c) 2018

Black Sheep of the R2D2 Clan

Enter the Marvel Heroes...
Captain America: The First Avenger
James "Kip" Currier (c) 2018

Spider-Man striking a pose
James "Kip" Currier (c) 2018

Don't Mess with Cap and Ms. Marvel
James "Kip" Currier (c) 2018

(Hey, Phoenix....We Told You--No Avengers v. X-Men dustup right now...the Disney/Fox merger HASN'T been approved yet!)
James "Kip" Currier (c) 2018

And at the other side of the Thunderdome...Enter the DC heroes...
(Green) Arrow and Black Canary
James "Kip" Currier (c) 2018

The 1st Flash....Jay Garrick
James "Kip" Currier (c) 2018

Clark Kent and Zatanna
James "Kip" Currier (c) 2018

The Joker...sporting REALLY good hair product!
James "Kip" Currier (c) 2018

Shades of a DC Marvel meet cute?...
--"Joker, say Hello to Silk"
--"Silk...meet Joker"
James "Kip" Currier (c) 2018

"Fox and Friends" 2.0...
It's "Flash and Friends"
James "Kip" Currier (c) 2018

Newt Scamander...Have Wand Will Travel
James "Kip" Currier (c) 2018

A magnificent Maleficent
James "Kip" Currier (c) 2018

"Uh, guys...I'm here for the Game of Thrones Season 8 Extras Audition..."

James "Kip" Currier (c) 2018

Freddy Krueger (...and Frozen's Elsa in the back left. Yikes!)
James "Kip" Currier (c) 2018

Michael Myers
James "Kip" Currier (c) 2018

Kylo Ren, Negan, and Lucille
James "Kip" Currier (c) 2018

Captain Kangaroo and Mr. Moose
James "Kip" Currier (c) 2018

King Ezekiel (AKA "not your king", "not your majesty", "just some guy") sans Shiva...
"Excuse me...Has anyone seen a really stealthy Bengal Tiger around here?..."
James "Kip" Currier (c) 2018

Seeing double...2 Jeannies
James "Kip" Currier (c) 2018

AND the REAL Jeannie herself...Miss Barbara Eden
James "Kip" Currier (c) 2018

Steel City Con 2018, Monroeville, Pennsylvania (Greater Pittsburgh Area), April 13-15, 2018

Kip Currier; Steel City Con 2018

April 14th I attended the Pittsburgh area's Steel City Con--a several-times-a-year gathering for comic book/toy sellers and eclectic entrepreneurs, celebrities, cosplayers, and pop culture enthusiasts of all ages.

James "Kip" Currier (c) 2018

As in previous years, I spoke with some very interesting and creative small business folks, who are using Intellectual Property in novel ways. Like this example, where iconic comic book covers are transformed by adding wrestlers:

James "Kip" Currier (c) 2018

James "Kip" Currier (c) 2018

I'll be posting an upcoming piece shortly that focuses on some of these entrepreneurs.

Cosplayers (i.e. translation: costume-sporting fans) were in abundance (on a much-welcomed warm weather day!), as you can see from my pics:

2 Deadpools in SPF-compliant costumes, basking in 80+ degree F. sunshine.
James "Kip" Currier (c) 2018

Colonel Sanders--after a 5K run
James "Kip" Currier (c) 2018

True Story:

Kip: May I take your photo, Colonel Sanders?

"Colonel Sanders": Yes--if you can name the 11 herbs and spices in my Original Recipe?

Me: (laughing) Uh, Colonel Sanders, I can't name them... because they're protected as one of the world's most famous trade secrets.

Colonel Sanders: (Big grin--while high-fiving me!)

Transcript of Mark Zuckerberg’s Senate hearing; Transcript courtesy of Bloomberg Government via The Washington Post, April 10, 2018

Transcript courtesy of Bloomberg Government via The Washington Post; Transcript of Mark Zuckerberg’s Senate hearing

"SEN. JOHN CORNYN (R-TEX): Thank you, Mr. Zuckerberg, for being here. I know in — up until 2014, a mantra or motto of Facebook was move fast and break things. Is that correct?

ZUCKERBERG: I don't know when we changed it, but the mantra is currently move fast with stable infrastructure, which is a much less sexy mantra.

CORNYN: Sounds much more boring. But my question is, during the time that it was Facebook's mantra or motto to move fast and break things, do you think some of the misjudgments, perhaps mistakes that you've admitted to here, were as a result of that culture or that attitude, particularly as it regards to personal privacy of the information of your subscribers?

ZUCKERBERG: Senator, I do think that we made mistakes because of that. But the broadest mistakes that we made here are not taking a broad enough view of our responsibility. And while that wasn't a matter — the “move fast” cultural value is more tactical around whether engineers can ship things and — and different ways that we operate.

But I think the big mistake that we've made looking back on this is viewing our responsibility as just building tools, rather than viewing our whole responsibility as making sure that those tools are used for good."

The EU's latest copyright proposal is so bad, it even outlaws Creative Commons licenses; BoingBoing, April 11, 2018

Cory Doctorow, BoingBoing; The EU's latest copyright proposal is so bad, it even outlaws Creative Commons licenses

"The EU is mooting a new copyright regime for the largest market in the world, and the Commissioners who are drafting the new rules are completely captured by the entertainment industry, to the extent that they have ignored their own experts and produced a farcical Big Content wishlist that includes the most extensive internet censorship regime the world has ever seen, perpetual monopolies for the biggest players, and a ban on European creators using Creative Commons licenses to share their works.

Under the new rules, anyone who allows the public to post material will have to maintain vast databases of copyrighted works claimed by rightsholders, and any public communications that matches anything in these databases has to be blocked."

Intellectual Property and China: Is China Stealing American IP?; Stanford Law School, April 10, 2018

Paul Goldstein, Q&A with Sharon Driscoll, Stanford Law School; Intellectual Property and China: Is China Stealing American IP?

"How do you think this challenge is best addressed? How can China and other countries be made to adhere to IP agreements?

Within the confines of trade, that’s a hard question. A friend who oversaw IP policy for the USTR several administrations ago once commented to me that people thought of the USTR as John Wayne rushing into dens of IP iniquity, six-shooters ablaze, when the reality was that he was Archie Bunker shooting off nothing more than his mouth. The US and other countries have achieved important successes under the World Trade Organization’s TRIPs Agreement [Trade-Related Aspects of Intellectual Property Rights] with a dispute resolution process that is far more deliberate than the 301 process. But, although many sober voices have argued for this as the preferable route, it’s far from clear that TRIPs will cover all of the forms of IP appropriation that are the object of the current 301 process, or that the current administration has the will or the patience to follow this avenue. And there are other trade alternatives, such as a bilateral investment treaty with China that could draw on the IP provisions of the so-called TRIPs-Plus free trade agreements with other countries.

Paul Goldstein is the Stella W. and Ira S. Lillick Professor of Law at Stanford Law School. A globally recognized expert on intellectual property law, Paul Goldstein is the author of an influential five-volume treatise on U.S. copyright law and a one-volume treatise on international copyright law."

British Book Publishers Fear Brexit Will Bring a U.S. Invasion; The New York Times, April 13, 2018

David Segal, The New York Times; British Book Publishers Fear Brexit Will Bring a U.S. Invasion

"Much of the worry stems from a looming fight with American publishers over sales in Continental Europe. For decades, the British have had this market to themselves, selling English-language editions of books in France, Italy and every other country in the European Union.

That helped turn Britain into the largest book exporter in the world, with total sales equivalent to $6.8 billion per year, according to the Publishers Association, a British trade group. Just over half of that revenue came from exports, and the biggest export market is Europe.

Access to this market, without tariffs or the serious competition that comes with being part of European Union, has been a financial boon. Were British publishers to lose a substantial chunk of sales or face added costs on the Continent, the fallout could be dire."

Drug Company ‘Shenanigans’ to Block Generics Come Under Federal Scrutiny; The New York Times, April 14, 2018

Robert Pear, The New York Times; Drug Company ‘Shenanigans’ to Block Generics Come Under Federal Scrutiny

"At a time when researchers are using sophisticated science to develop new treatments and cures, the fight over physical samples — a few thousand pills — sounds mundane. But it has huge implications for consumers’ access to affordable medicines.

The F.D.A. says it has received more than 150 inquiries from generic drug companies unable to obtain the samples needed to show that a generic product works the same as a brand-name medicine. Some of the disputes over samples involve drugs that are costly to patients and to the Medicare program and that have experienced sharp price increases in recent years.

“Without generic competition, there is no pressure to drive down the costs of these medications,” the food and drug agency said. Under current law, it said, it cannot compel a brand-name drug manufacturer to sell samples to a generic company."

A Landslide of Classic Art Is About to Enter the Public Domain; The Atlantic, April 8, 2018

Glenn Fleishman, The Atlantic; A Landslide of Classic Art Is About to Enter the Public Domain

"The Great American Novel enters the public domain on January 1, 2019—quite literally. Not the concept, but the book by William Carlos Williams. It will be joined by hundreds of thousands of other books, musical scores, and films first published in the United States during 1923. It’s the first time since 1998 for a mass shift to the public domain of material protected under copyright. It’s also the beginning of a new annual tradition: For several decades from 2019 onward, each New Year’s Day will unleash a full year’s worth of works published 95 years earlier."

Former law student obtains $6.45M judgment in revenge porn case; ABA Journal, April 11, 2018

Debra Cassens Weiss, ABA Journal; Former law student obtains $6.45M judgment in revenge porn case

"A former law student in California has obtained a $6.45 million default judgment against a former boyfriend accused of posting her intimate photos after their breakup.

The woman, identified as “Jane Doe” in the case, was awarded $3 million in compensatory damages, $3 million in punitive damages and $450,000 for copyright infringement, report Law360 and CNN...

Besides infringement, the suit had alleged infliction of emotional distress, cyberstalking, and online impersonation with intent to cause harm.

Doe was represented by lawyers from K&L Gates’ Cyber Civil Rights Legal Project, a team of pro bono lawyers representing “revenge porn” victims. The award is the second-largest in a revenge porn case that doesn’t involve a celebrity, according to the law firm. The highest award, $8.9 million, was also obtained with the help of the project."

The Defend Trade Secrets Act: Five Key Lessons; JDSupra, April 10, 2018

Pierce Atwood LLP, JDSupra; The Defend Trade Secrets Act: Five Key Lessons

"The DTSA is a valuable tool for employers.  Indeed, it is clear that the DTSA provides employers with an effective avenue into federal court for trade secret disputes. However, employers must be aware of what the DTSA does not do. It does not relieve the employer’s burden to defend its information, manage its information, or articulate the importance of its information. While the DTSA is an effective tool, courts will first look to the steps the plaintiff took to avoid the necessity of using it at all."

Pennsylvania Federal Court Explores the Contours of the DTSA; The National Law Review, April 10, 2018

The National Law Review; Pennsylvania Federal Court Explores the Contours of the DTSA

"Recently, the U.S. District Court for the Eastern District of Pennsylvania determined a former employee did not violate the Defend Trade Secrets Act (“DTSA”) where she disclosed confidential information of her former employer to her husband and her attorney."

More Patent Trolls Are Targeting Startups. Here's What You Can Do.; Entrepreneur, April 10, 2018

Nathaniel Borenstein, Entrepreneur; More Patent Trolls Are Targeting Startups. Here's What You Can Do.

"Startups aren't typically founded by lawyers, so patent law isn't usually a front line issue for them. But I've come to realize that patent protection is at best No. 11 on the top 10 list of things for startups to focus on -- something they generally understand is important, but not quite important enough. Part of that is because the headlines focus on big lawsuits lobbed at big companies, which creates a false sense of security. As an inventor and a computer scientist with 25-plus years of practical experience, I'd like to think I've navigated the murky, complicated world of patents and come out on the other side wiser and more informed. And, as such, there is something I want entrepreneurs, inventors and early-stage businesses to know. Yes, you are a potential target for patent trolls, and yes, there is something you can do about it. Today."

China asserts firm grip on research data; Science, April 9, 2018

Dennis Normile, Science; China asserts firm grip on research data

"In a move few scientists anticipated, the Chinese government has decreed that all scientific data generated in China must be submitted to government-sanctioned data centers before appearing in publications. At the same time, the regulations, posted last week, call for open access and data sharing...

...[T]he U.S. National Science Foundation (NSF) is concerned. “NSF bases its funding and its international collaboration on the principle of the freedom for scientists to publish all of the data they generate with U.S. funding, regardless of where the data are collected,” Nancy Sung, head of NSF’s Beijing office, wrote in an email to Science. “We would be concerned about any potential impact to this principle.”"

EU copyright reforms draw fire from scientists; Nature, April 3, 2018

Quirin Schiermeier, Nature; EU copyright reforms draw fire from scientists

"An influential committee of the European Parliament is due to vote this month on changes to copyright regulations in the European Union, but the latest drafts of the rules have triggered a wave of criticism from open-science advocates. They say that the proposals will stifle research and scholarly communication.

Intellectual-property experts agree that existing EU copyright rules need an overhaul for the digital age, and a proposal first circulated by the European Commission in 2016 had this goal in mind. But critics worry that some provisions in more-recent proposals for the law — known as the directive on copyright in the digital single market — conflict with Europe’s principles of open science and freedom of expression."

European Copyright Law Isn't Great. It Could Soon Get a Lot Worse.; Electronic Frontier foundation, April 10, 2018

Jeremy Malcolm, Electronic Frontier Foundation; European Copyright Law Isn't Great. It Could Soon Get a Lot Worse.

"EFF has been writing about the upcoming European Digital Single Market directive on copyright for a long time now. But it's time to put away the keyboard, and pick up the phone, because the proposal just got worse—and it's headed for a crucial vote on June 20-21. 

For those who need no further introduction to the directive, which would impose an upload filtering mandate on Internet platforms (Article 13) and a link tax in favor of news publishers (Article 11), you can skip to the bottom of this post, where we link to an action that European readers can take to make their voice heard. But if you're new to this, here's a short version of how we got here and why we're worried."

Disney Can’t Use ‘Marvel’ in Disneyland Avengers Theme Park; Comic Book Resources, April 8, 2018

Kirsten Thompson, Comic Book Resources; Disney Can’t Use ‘Marvel’ in Disneyland Avengers Theme Park

"Disney California Adventure Park will be expanding in the next year or so and in the process, will be removing several attractions. The new space will showcase superheroes from Marvel Entertainment’s movies, comics, and video games. The Hulk, Iron Man, Spider-Man and other characters will be spotlighted. However, this theme park attraction won’t be called “Marvel Land,” even though such a title would encompass the entirety of the entertainment giant’s characters. This is due to legal fine print.

Although Marvel was purchased by Disney in 2009, there are still a myriad of licensing agreements with other movie studios that have to be followed. Some of these are with Disney’s rival, Universal Studios, and they put limits on the company’s intellectual property rights.

In particular, these agreements bar Disney from using certain Marvel characters in Disney theme parks east of the Mississippi River and prohibit them from using the word “Marvel” in the title of any other theme park land."

China And Intellectual Property; NPR, Weekend Edition Saturday, April 7, 2018

NPR, Weekend Edition Saturday; China And Intellectual Property

"NPR's Scott Detrow speaks about intellectual property theft and tariffs with Dan Eberhart, CEO of Canary, an oilfield services company. It manufactures precision valves in the U.S. and China."

NBA Player LeBron James And Alabama Football Coach Nick Saban Squabble Over Copyright; Above The Law, April 5, 2018

Krista L. Cox, Above The Law; NBA Player LeBron James And Alabama Football Coach Nick Saban Squabble Over Copyright

"[LeBron] James may be trying to assert protection over the idea of a series filming a conversation with sports stars in a barbershop. The problem here, of course, is that a very basic understanding of copyright involves recognition of the idea/expression dichotomy. Although a rightholder can hold copyright over the expression of an idea, he cannot copyright the idea itself. Not even all expression is protectable, since there may be a limited way to express a set of facts, for example. Talking in a barbershop is not only a non-protectable idea under copyright, but it’s not even a unique idea.

Talking in a barbershop is so common that Hollywood basically made a movie about it, entitled Barbershop. And then made two more sequels. Plus a spinoff called Beauty Shop. While there may be more to James’ claim, if his position really is that his idea is copyrightable, well, he’s unlikely to find a sympathetic judge."

THE TRICKY ETHICS OF THE NFL'S NEW OPEN DATA POLICY; Wired, March 29, 2018

Ian McMahan, Wired; THE TRICKY ETHICS OF THE NFL'S NEW OPEN DATA POLICY

"SINCE 2015, EVERY player in the National Football Leaguehas been part cyborg. Well, kind of: Embedded in their shoulder pads is an RFID chip that can measure speed, distance traveled, acceleration, and deceleration. Those chips broadcast movement information, accurate to within six inches, to electronic receivers in every stadium. Even the balls carry chips.

So far, that data has stayed within the walls of each individual team, helping players and coaches understand offensive and defensive patterns. But this week, the NFL’s competition committee made good on its intention to share data on all 22 players after every game—with all the teams.

That move will give competitors a greater understanding of player movement across the league. But it could also begin to change the essence of the game. Much of the challenge of sports is the ability to quickly process and react to information, an instinctual gift of great coaches and players. By stripping away some of the uncertainty of competition, data will shift who holds that analytical advantage—and introduce some new ethical questions."

Sweet settlement: Cookie shop trademark suit resolved; RichmondBizSense, March 29, 2018

Mike Platania, RichmondBizSense; Sweet settlement: Cookie shop trademark suit resolved

"Richmond-based Red Eye Cookie Co. earlier this month reached a settlement in trademark infringement case filed against it last year by Insomnia Cookies. Terms of the agreement were not disclosed.

Insomnia, which filed suit in Charlottesville federal court in January 2017, claimed Red Eye’s business model, logo and brand were too similar to its own. Each company offers late-night cookie delivery and their logos both feature a crescent circle."

RIP John Sulston, open science hero and father of the Human Genome Project; BoingBoing, March 9, 2018

Cory Doctorow, BoingBoing; RIP John Sulston, open science hero and father of the Human Genome Project

"Sulston won the Nobel in 2002 and was a force for open science and access to knowledge. His two claims to greatness were his contributions to genomics and his moral leadership. He will be missed."

Judge Refuses to Dismiss Copyright Lawsuit Over LeBron James Tattoo in 'NBA 2K'; Hollywood Reporter, March 30, 2018

Eriq Gardner, Hollywood Reporter; Judge Refuses to Dismiss Copyright Lawsuit Over LeBron James Tattoo in 'NBA 2K'

"When the lawsuit was first brought in 2016, no judge had ever firmly declared that tattoo designs are copyrightable. One tattoo artist once sued Warner Bros. over Hangover 2 for a reproduction of Mike Tyson's face tattoo. That case settled. Another dispute came from a tattoo artist who inked a UFC fighter and later asked a bankruptcy court to determine the value of his tattoo claim against videogame publisher THQ.

Copyright law protects original works of expression fixed in a tangible medium, but the question on a motion to dismiss filed by Take-Two was whether the use of tattoos was too fleeting to be considered an infringement.

U.S. District Court Judge Laura Taylor Swain isn't ready to adjudicate this quite so readily."