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Ice Miller is a proud sponsor of the Center for the Business of Life Sciences at the IU Kelley School of Business conference focusing on Informatics/”Big Data” Uses and Challenges in the Life Sciences. Attorney Tom Walsh is moderating the afternoon panel on “Implementing Big Data Issues” on May 9, 2014 at the Indiana Government Center.

Tom’s discussion will show how the use of business analytics is revealing a wide range of insights across a variety of industries.  He will answer questions such as:  How applicable is the “crunching of big data” to the pharmaceutical and medical device sectors? Do privacy requirements make it more difficult to glean information? Can such insights point to potential new products or different uses for ones already on the market?

Afternoon Panel Members Include:

·         Tom Walsh, Partner, Ice Miller LLP, Panel Moderator

·         Michael Mattioli, Associate Professor of Law, Indiana University Maurer School of Law

·         Buck Woody, Senior Technical Specialist, Global, Microsoft Azure Team

·         Titus Schleyer, M.D., PhD, Director of the Center for Biomedical Informatics, Regenstreif Instritute

·         Stacey Yout, Covance

To see the full agenda and to register please click here.

Ice Miller attorney  TJ Johnson was recently featured on Fox Business News for being the co- creator of ‘The Pocket Drone.’

TJ and his partner Timothy Reuter created a personal drone that makes high definition action photography accessible and convenient for consumers.  The Pocket Drone is the first ever drone that folds to the size of a 7-inch tablet, but still has the ability to carry a high-quality camera. The $495 retail price includes everything a consumer needs to fly the drone, except the camera.  In the three months since The Pocket Drone was introduced, Reuter and Johnson have booked orders of nearly  $1 million.

TJ asserts that “Designing and building products like ‘The Pocket Drone’ helps ensure that I am up to date with current technology and have some fun in my free time.  Personally experiencing the same challenges as our clients helps me understand their process and be better prepared to assist them throughout their business and product development.”

As an engineer with a background in designing and building electronic control solutions for motion control systems, Johnson has always been involved in projects such as this one.  Before pursuing a legal career, he started his own business designing and building embedded systems in his hometown of Reno, Nevada.

To see the interview, please follow this link: http://bit.ly/1n8oUHY, or visit www.airdroids.com for more information on The Pocket Drone.

Ice Miller Proudly Supports Junior Achievement

Posted by L. Marcum On March 31, 2014

Ice Miller was the proud VIP sponsor of Junior Achievement’s 26th Annual Central Indiana Business Hall of Fame event on February 20, 2014 at the Indiana Roof Ballroom. Close to 600 business leaders and their guests gathered to honor outstanding men and women who epitomize success in the business world, high moral and ethical standards, and dedication to important civic causes, thereby improving the quality of life in our community. Congratulations to our clients who were named 2014 Laureats:

  • Billie Dragoo – Founder, President and CEO, RepuCare
  • Dave P. Lindsey – Founder, President and CEO, DEFENDER Direct
  • David E. Simon – Chairman and CEO, Simon Property Group, Inc.
  • Michael Smith, Retired EVP/CFO, Anthem

The evening began with an exclusive VIP reception where Ice Miller Chief Managing Partner Phil Bayt spoke about Ice Miller’s appreciation of Junior Achievement. The mission of Junior Achievement aligns with Ice Miller’s efforts in the community, and our firm is grateful to past and present Laureates.

Junior Achievement students participated in the evening’s events, which included stories about the advancements made by the organization. Many Ice Miller attorneys attended the event to support the work  Junior Achievement and the Laureates do for the community.

2014 Laureates enjoyed meeting and listening to Junior Achievement students at the 26th Annual Central Indiana Business Hall of Fame event.

(left to right: Michael Smith, Phil Bayt, Andre Lacy)

Chief Managing Partner of Ice Miller, Phil Bayt, with 2014 Laureate Michael Smith and Chairman of the Board of LDI, Lt. Andre B. Lacy.

(left to right: T.J. Cole, Jason McNiel, Holiday Banta, Jessica McNiel, Joshua Christie, Julie Gasper, Andrew Vento, George Gasper)

Ice Miller attorneys and their guests attended the black tie affair to support Junior Achievement and the 2014 Laureates.

Chief Managing Partner of Ice Miller, Phil Bayt, speaking at the VIP reception in front of distinguished guests and the 2014 Laureates discussing his appreciation for Junior Achievement, what it contributes to the community and how Junior Achievement aligns with Ice Miller’s goals for civic involvement.

Ice Miller attorney Melissa Proffitt Reese and Eric Bedel of the Greater Indianapolis Chamber of Commerce at the Junior Achievement 26th Annual Central Indiana Business Hall of Fame event.

Ice Miller Supports TechColumbus Entrepreneurs

Posted by S. Rector On March 27, 2014

Technology-focused entrepreneurs in Columbus, Ohio, have a great resource in TechColumbus. Each year, more than 500 emerging technology companies reach out to TechColumbus for services and funding to grow into sustainable, profitable businesses.

Ice Miller is proud to support TechColumbus through the TechColumbus Expert Network (EN). EN is made up of like-minded professional service firms who understand the importance of helping emerging technology companies in Central Ohio grow into the economic drivers of tomorrow.

As part of EN, Ice Miller offers pro-bono and specially priced legal services to TechColumbus’ startup clients. Our firm helps entrepreneurs with a full range of services, including intellectual property protection, labor law advice, business structure and capital formation.

When we meet with TechColumbus clients, we begin with a discussion about the business itself—where the company is with its business plan and the entrepreneurs’ near-term and long-term goals. From there, we work closely with the client to develop a strategic plan to accomplish legal goals in an efficient and effective way.

To learn more about resources available to your business through TechColumbus, contact Susan Rector at susan.rector@icemiller.com.

The U.S. Supreme Court agreed to hear arguments in American Broadcasting Companies, Inc. v. Aereo, Inc. sometime in April 2014. The online streaming copyright infringement case has been watched closely by many in the entertainment and technology industries, as the Supreme Court’s ruling may change the way broadcast companies do business.

Background

Originally filed in New York in 2012, several broadcasters, including ABC, NBC, CBS and Fox, sued Aereo for copyright infringement. Aereo is an online streaming subscription service that functions much like the infrastructure in the landmark Cablevision decision. Aereo owns thousands of standard television antennas, just like the ones an average person would use to receive broadcast stations. Aereo then assigns customers an individual antenna for a fee of $8-$12 a month. Customers can record and stream live broadcasts through the internet and view on his or her computer, tablet or smartphone.

Although a customer could use an antenna the same way as Aereo without legal implications, the plaintiff broadcast companies argue Aereo is guilty of copyright infringement because it is retransmitting performances in violation of the plaintiffs’ public performance rights. The plaintiffs sought a preliminary injunction two weeks before Aereo was set to launch in the New York area. The district court denied the injunction, holding that while the broadcasters would likely suffer irreparable harm if Aereo was allowed to launch, they did not show a likelihood of success on the merits of their copyright claims. The court relied on its prior decision in Cablevision, which held that a system where customers could record television broadcasts on a remote hard drive assigned to each individual customer was not a retransmission because the potential viewing audience was limited to that specific customer. The 2nd Circuit Court of Appeals upheld the district court’s decision in April 2013.

While Aereo was being appealed in New York, two other cases involving nearly identical subscription streaming services reached the courts in Los Angeles and Washington, D.C. The broadcasters were successful in both of those cases, and the courts held the streaming companies violated the broadcasters’ public performance rights when they did not pay to retransmit the broadcasts. As a result of these conflicting opinions among the circuits, Aereo was ripe for the Supreme Court.

Impacts of Supreme Court’s decision

The road to the Supreme Court was unusual because typically, the party who won in the appellate court fights a petition for certiorari. Here though, Aereo joined the petition so that the case could be resolved on the merits and Aereo would know once and for all if other suits could be brought against it in other jurisdictions. Other parties are more concerned by the underlying issues of the case and filed briefs in support of the petition for certiorari. Some of the parties that filed amicus curie briefs in support of the broadcasters include the National Football League and National Baseball League; the American Society of Composers, Authors and Publishers (ASCAP); Broadcast Music Inc. (BMI); Time Warner; Metro-Goldwyn-Mayer; and the Screen Actors Guild. While no briefs have been filed yet in support of Aereo, the Computer Communications Industry Association, which includes members Yahoo, Google, Facebook and Amazon, initially filed a brief supporting Aereo with the Court of Appeals.

The broadcasters believe a verdict upholding the 2nd Circuit decision will destroy the business models of all broadcasting companies. Fox went so far as to threaten that the company would convert to a cable pay-tv channel if Aereo was not forced to shut down. The underlying problem for the broadcasters is that a significant portion of their revenue comes from retransmission fees paid by cable and satellite providers to rerun shows. The 2nd Circuit’s ruling opens the floodgates for other services to use an Aereo-like infrastructure to avoid paying the broadcasters. Therefore, the broadcasters fear that soon, no one will pay to retransmit copyrighted shows and the broadcasters will lose a significant portion of their revenue.

Aereo argues that the case is about the right of every American to use a television antenna. In so doing, it frames the issue around putting the control and choice back into customers’ hands as to what television programming the customer wishes to watch. Significantly, Aereo also raises the argument that customers have a right to use new technology, which includes the cloud, to access broadcasts through an antenna and DVR.

The Court’s decision will likely have far reaching implications. If the Court upholds the 2nd Circuit’s ruling that the broadcasters are unlikely to prevail on their infringement claims, broadcasting companies will have a strong incentive to abandon their free-to-customer business model in favor of pay-tv stations, just to recapture the lost retransmission fee revenue. While this will reduce the free content available to the public, a Forbes article reporting a recent SNL Kagen statistic shows that of the 114 million homes with a television in the United States, 103 million already pay for cable or satellite services. Therefore, a very small percentage of TV’s would be affected.

From the other side, companies that rely on cloud technology are following the case closely as a decision overturning the Second Circuit may impact how companies can offer cloud-based services to customers. Specifically, the Court has the opportunity to overrule Cablevision, which may alter a company’s ability to use the cloud without violating copyright laws.

The Court will hear arguments in April and is expected to reach a decision this year.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

Trademark Owners’ Options as New gTLDs Launch

Posted by S. Rector On January 2, 2014

New domain name endings began being launched Nov. 26, 2013, and are expected to be released in batches of roughly 20 new gTLDs each week or 50 gTLDs each month thereafter during 2014.  Trademark owners should be attentive to this now to not miss the launch of a new domain ending for which they intend to file a new domain name.  The English language domain names with the first of seven new endings –  .bike, .clothing, .guru, .holdings, plumbing, .singles, .ventures — is expected to issue by the end of January 2014.

This post highlights considerations for trademark owners in connection with the launch of 1,400 new generic top level domains (gTLDs), i.e., the suffix of domain names to the right of the dot (for example: .com and .hotel).  Here is a link to an alphabetical link of all proposed domain names: http://www.newgtldsite.com/new-gtld-list/.  Due to potential abuse in this new domain name real estate, special provisions have been put in place for trademark owners.  This post provides background, describes the risks and opportunities and articulates a high-level conceptual approach to analyze how this development affects your business and how to proceed.

Background.  The April 16, 2013, post contained an overview of the new gTLD launch program and an explanation of the Trademark Clearinghouse.  In short, in order to record a domain name within the first 60 days that a new gTLD launches (the Sunrise Period), a trademark owner must first register its mark(s) in the Trademark Clearinghouse and provide validation of use of the mark prior to registering the domain name.  For the most up-to-date information regarding the launch of the new gTLDs and their respective Sunrise Periods and trademark claim periods, see http://www.trademark-clearinghouse.com/sunrise that is updated periodically.

Why should I care?  There are clearly two camps each with a school of thought on the new gTLDs.  One camp believes trademark owners should offensively register domain names useful to their business and defensively file domain names such as .gripe, .suck and .porn to block others from doing so.  They believe the costs incurred up front and on an annual basis to register and maintain the domain names are less expensive in the long run than pursuing infringers to stop use of a domain name in bad faith or that causes confusion with the brand.  The other camp views the launch of these thousands of gTLDs as another land grab by large domain name registrars solely to create demand for their registration services and to profit from provision of the new Trademark Clearinghouse services.

Analysis of how to proceed.  Before you make a determination as to which camp you are in and how to proceed, think through each of the steps below.  Like all business decisions, this decision necessitates ascertaining the degree to which benefits to your business outweigh the costs.  By reviewing each of these considerations in light of your existing trademark portfolio, your current and future marketing plans and your current and future search engine optimization (SEO) plans, you can determine whether and to what extent to register new domain names and whether to record a trademark or trademarks in the Trademark Clearinghouse.

  1. Identify new gTLDs among the 1,400 names to launch in the next two to three years in which one or more domain names should be filed.
  2. Identify new gTLDs within which defensive, blocking domain names should be filed to preclude others from filing, such as .gripe, .sucks or .porn.
  3. Develop a budget for recording marks in the Trademark Clearinghouse.  The filing fees per mark to record are as follows:
    • $150 for 1 year
    • $435 for 3 years ($15 savings)
    • $725 for 5 years ($25 savings)
  4. Because the new gTLDs are expected to take over two years to roll out, we suggest registering marks in the Trademark Clearinghouse for at least three years.
  5. Record marks to be used for filing and blocking in the Trademark Clearinghouse.
  6. Prepare and file evidence of use with the Trademark Clearinghouse (must be submitted prior to beginning of the Sunrise Period).
  7. Consider engaging a trademark watching service to monitor all domain names registered in the new gTLDs, because trademark owners will only receive Trademark Claims Notices for exact matches of trademarks registered in the Trademark Clearinghouse.
  8. As gTLDs of interest launch, promptly register your desired domain names during the relevant Sunrise Period.
  9. During the first 90 days after each gTLD launches, be prepared to promptly respond to each Claims Notice sent by the Trademark Clearinghouse giving you notice of domain names filed that contain your mark(s) registered in the Trademark Clearinghouse.

Please note that the only domain names that may be recorded and reserved during a Sunrise Period are those that (1) are an exact match for the trademark registered in the Trademark Clearinghouse or (2) were the subject of a successful Uniform Domain Name Dispute Resolution Proceeding (UDRP) and registered in the Trademark Clearinghouse.  Special rules exist for domain names that contain characters that are not permitted domain name characters, such as commas, spaces, apostrophes and some periods.  Rules permit up to 10 variations per mark for domain names containing these characters.  We can assist you to determine whether to register trademarks and which variations make the most sense.

Please contact Susan Rector at Susan.Rector@icemiller.com with any questions.  We are prepared to help you determine the best way to proceed to protect your marks and register new domain names that are most beneficial for your business.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

Ice Miller LLP’s client InfoMotion Sports Technologies d/b/a 94Fifty has developed a smart basketball that hit the online retail market and Apple Stores nationwide in late November. It is a unique regulation basketball with embedded sensors that precisely track the movement of the ball in real time for use in training, recreation and competition.

Sports Illustrated featured the product in the Dec. 9, 2013, issue titled “Ball Coach, A sensor-filled rock can polish your game.”

Sports Illustrated writers called the 94Fifty basketball “a training tool that’s both useful and, frankly, really cool.”

In the article, Founder and CEO Mike Crowley explained how the technology works: “There’s the equivalent of a missile-guidance system in there,” says InfoMotion CEO Mike Crowley. “The sensors are processing what’s happening and spitting out the results in a hundred milliseconds. . . .Not only can the sensors count the number of times something is happening, but the algorithms and software will discern how well you’re doing it against a standard of statistics we’ve collected over years.”

The article also announced that 94Fifty is working on a “live game experience in which the ball is used in competition, allowing coaches, broadcasters and fans to track data via second-screen.” 

Click here for more information on InfoMotion Sports Technologies Inc. and 94Fifty’s smart basketball.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

In Jan. 2012,  the United States Patent and Trademark Office (USPTO) published proposed multiple sets of rules aimed at implementing the America Invents Act (AIA), which was enacted on September 16, 2011.  The publication is the first in a series of Notices of Proposed Rulemaking in the Federal Register related to proposed rules implementing various provisions of the AIA.  The proposed new rules address five provisions of the new law.

Specifically, the newly-published proposed rules focus on the following AIA provisions:

  •  Inventor’s oath and declaration – Revises and clarifies the rules of practice relating to the inventor’s oath or declaration, including reissue oaths or declarations, assignments containing oath or declaration statements from inventors, and oaths or declarations signed by parties other than the inventors.  Namely, the new rules allow an application to be filed by a person to whom the inventor has assigned, or is under an obligation to assign, the invention or by a person who otherwise shows sufficient proprietary interest.  Moreover, the new rules authorize an individual who is under an obligation of assignment to include certain required statements in an executed assignment in lieu of filing these statements in a separate oath or declaration.  Furthermore, identification of each applicant’s citizenship would no longer be required by statute.  Lastly, the requirement of without deceptive intention has been deleted from all related sections.  As proposed, these rules would apply to any patent application that is filed on or after Sept. 16, 2012.

 

  • Third party submission of prior art in a patent application – Allows third parties to submit printed publications of potential relevance to examination and requires a concise explanation of the asserted relevance of each document submitted, to pay the associated fees, and to include a statement by the submitting third party that the submission is being made in compliance with new 35 U.S.C. 122(e).  The new rule further requires that such a submission be made before the earlier of:
  1. the date a notice of allowance under 35 U.S.C. 151 is given or mailed in the application; or
  2. the later of:
    1. six months after date on which the application is first published under 35 U.S.C. 122, or
    2. the date of first rejection under 35 U.S.C. 132 of any claim in the application.

As proposed, these rules would apply, effective Sept. 16, 2012, to any pending patent application.

  • Citation of prior art in a patent file – Expands the scope of information that any party may cite in a patent file, to include written statements made by a patent owner before a Federal court or the USPTO regarding the scope of any claim of the patent, but limits the use of such written statements to determining the meaning of a patent claim in ex parte reexamination proceedings that have already been ordered and in inter partes review and post grant review proceedings that have been instituted.  As proposed, this provision would become effective on Sept. 16, 2012.

 

  • OED Statute of Limitations – Requires that disciplinary proceedings be commenced not later than the earlier of the date that is 10 years after the date on which the misconduct forming the basis of the proceeding occurred, or one year from the date on which the misconduct forming the basis of the proceeding was made known to an officer or employee of the USPTO, and specifies when the one-year statute of limitations commences depending on the type of complaint that initiated the disciplinary proceeding.  As proposed, this provision would become effective on Sept. 16, 2012.

 

  • Supplemental Examination/Ex Parte Re-Exam – Sets forth how the supplemental examination process will work. Specifically, the rules note that only the patent owner can request supplemental examination and each supplemental examination request may only identify up to ten items to be considered, reconsidered or corrected. If a patent owner has more than ten items, the patent owner will need to submit multiple requests, which can be filed simultaneously. At the time of filing, the patent owner will need to pay $5,180 for the request and $16,120 for the ex parte re-examination fee. While both are required at the time of filing, the re-examination fee will be refunded if a re-examination is not ordered. Not only are the filing fees high, there are additional fees for documents over 20 pages in length and fees for petitions filed in connection with the proceeding. The rules define the  requirements that must be met to file the request – a cover sheet, identifying the patent to be examined, a list of the items to be considered, identifying any other prior or concurrent post patent USPTO proceeding involving the patent to be examined, identification of each issue raised by each item of information, a separate/detailed explanation of the issues, explanation of the relevancy of the identified information, a copy of each identified information, and a summary of any submitted document over 50 pages in length.  In addition, these set of rules provide that the ex parte re-examination fee will be increased from $2,520 to $17,750. As noted in Ice Miller’s original summary of the America Invents Act, it is not surprising to see high fees associated with the new supplemental examination process and fee increases for the ex parte re-examination procedures in view of the new responsibilities of the USPTO. 

 

Publication of these proposed rules officially opens a 60-day public comment period for each rule package.  The USPTO has encouraged the patent community to provide feedback on the proposals, as is the intent of the sixty-day comment period.  Once the comment period ends, the USPTO will draft final rules, which are targeted to be published by the end of July 2012.

In the coming weeks, the USPTO will publish additional AIA-related proposed rules in the Federal Register for public comment.  The soon-to-come proposed rule publications cover supplemental examination, post-grant review, inter partes review, transitional program for covered business methods, and derivation proceedings.  Stay tuned to The Ice Loop and the Ice Miller Web site for additional information on those proposed rules as they are published. 

Full text of the current proposed rules can be found at:

http://www.gpo.gov/fdsys/pkg/FR-2012-01-05/pdf/2011-33811.pdf

http://www.gpo.gov/fdsys/pkg/FR-2012-01-05/pdf/2011-33813.pdf

http://www.gpo.gov/fdsys/pkg/FR-2012-01-06/pdf/2011-33815.pdf

 http://www.uspto.gov/aia_implementation/77fr3666.pdf

 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

Top-Level Domain .XXX Available Soon – Protect Your Brand!

Posted by Nick Merker On September 15, 2011

Although the intent of the .XXX top-level domain is for it to be used in the adult context, brands not in this space may wish to protect their image by proactively registering a .XXX domain containing their registered trademarks. The new top-level domain .XXX will become available to the adult community starting on November 8th, 2011 and then open to the general public on December 6, 2011.  The ICM Registry, sponsor of the .XXX top-level domain, is giving registered trademark owners a special window of time (open now until October 28, 2011) to reserve domains ending in .XXX which contain their registered trademark.  Such special registration will protect registered .XXX domains from falling into the hands of a third party.

An applicant wishing to protect its rights in this reserved window must submit a reservation request with ICM corresponding to its trademark before October 28, 2011.  Registration through GoDaddy costs approximately $200 and requires a trademark owner to apply for registration by filling out a form online.  Only registered trademarks having registration dates before September 1, 2011 and still in full force and effect qualify for this special domain registration.  Further, the trademark registration must be issued as a national registration in a respective country, not simply a pending national trademark application or a State trademark registration. For example, an applicant with a United States trademark registration issued before September 1, 2011 that is still in full force and effect may seek protection under this reserved window.

After December 6, 2011, any registered .XXX domain through this early registration process will resolve to a standard informational page reflecting the status of the domain as reserved.

If trademark owners do not register a .XXX domain in this special window of time, any available .XXX domain will be allocated to members of the adult community submitting a request.  Then, starting on December 6, 2011, registration opens to the general public and anyone, whether in the adult community or otherwise, may register these domains.  Although trademark owners may be able to obtain domains registered using their trademark after this special registration window, it may be a more involved path than taking advantage of this reservation process prior to October 28, 2011.

For more information about protecting your brand on the Internet, please contact info@theiceloop.com.

Despite its recent defeat in the “jail-breaking” ruling issued by the Library of Congress, Apple, Inc. continues to seek protection for its technological developments.  According to a July 28, 2010 article in Bloomberg Businessweek, Apple Inc. has filed a lawsuit against companies it alleges are selling unauthorized accessories for Apple electronic products like iPhones, iPods and iPads.  According to the article, Apple’s complaint alleges that many of the accessories are “of inferior quality and reliability, raising significant concerns over compatibility with and damage to Apple’s products.” 

Bloomberg Businessweek’s article explains that Apple maintains a program called “Made for iPod” which allows manufacturers to obtain licenses for Apple devises.  The Businessweek article cites Shaw Wu, an analyst with Kaufman Brothers LP, who has stated that Apple gets a 20-25 percent royalty on each sale of a licensed accessory. 

Apple filed the lawsuit, Apple Inc. v. eForCity Corp., in the U.S. District Court for the Northern District of California on July 22, 2010.  So far, Apple has identified six sellers in California and Washington, and could identify up to twenty additional companies it believes are selling unauthorized products.

For more information on how Ice Miller can help your company protect and take advantage of its intellectual property rights, contact theiceloop@icemiller.com.

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