Here’s an article that demonstrates the need and the fact that the 101 must be addressed and those who are in the know, not only recognize it, but are Analyzing it and looking for ways on how to proceed and address the problem.
https://www.obrienpatents.com/judge-kavanaugh...perty-law/
JUDGE KAVANAUGH’S VIEWS ON INTELLECTUAL PROPERTY LAW
July 20, 2018 by Michael O'Brien
On July 9, 2018, President Donald Trump nominated Judge Brett Kavanaugh to the United States Supreme Court. Kavanaugh has a long resume, having previously worked under Ken Starr during the investigation of Bill Clinton, and subsequently in the administration of President George W. Bush. In 2006, he was confirmed to the D.C. Circuit Court of Appeals after having originally been nominated by President Bush in 2003.
With the likelihood that Kavanaugh will become the 114thSupreme Court justice, it’s worth taking some time to examine Kavanaugh’s previous rulings involving intellectual property. What can rightsholders expect from Kavanaugh if he ascends to the country’s highest court?
https://www.obrienpatents.com/wp-content/uplo...t.jpgJudge Kavanaugh and family watch as President Trump signs the document formally naming him as a nominee for the Supreme Court.
If confirmed, Kavanaugh may well be the most rightsholder-friendly jurist on the Supreme Court.
In looking over Kavanaugh’s rulings, I found five cases that involved the interests of rightsholders. Of those, Judge Kavanaugh ruled for the rightsholder in two cases, with the other three resulting in either neutral rulings, or in favor of the other party.
A 40%-win record for rightsholders certainly doesn’t make it sound like he is particularly IP-friendly. But consider that in the last few years, the Supreme Court has ruled 9-0 against rightsholders in several high-profile intellectual property cases. Such cases include KSR v. TeleFlex, Nautilus, Inc. v. Biosig Instruments, Inc., and Mayo v. Prometheus. The most notable of this avalanche of unfortunate rulings was Alice v. CLS, which has yielded the so-called ‘two-step test’ that makes most computer software unpatentable.
With the above in mind, ruling for rightsholders 2 out of 5 times makes Kavanaugh a relative win for those looking to protect their IP. But, not all IP cases are the same.
There are two basic types of cases. The first are those in which a rightsholder is suing an infringer. In these cases, rightsholders aim to show that they have a right to protect their work, and that the alleged infringer is infringing on that right.
In the second type, a rightsholder sues the government (or a government agency) in an attempt to show that they have a right to protect their work, and that the government should ‘appreciate’ this in some explicit manner.
Kavanaugh has tentatively sided with rightsholders when suing an alleged infringer.
The most notable example of a case of this type which Kavanaugh weighed in on was Estate of Coll-Monge v. Inner Peace Movement. This case involved a question as to which of two entities owned trademarks. Dr. Francisco Coll, a Christian pastor, founded two non-profit organizations, the Inner Peace Movement and the Peace Community Church. During his lifetime, Coll created and registered a number of marks that were used to market books, songs, and other creative works.
After Coll died in 1999, his estate sued the organizations he had founded, requesting that they cease the use of his trademarks. The organizations filed counterclaims in which they pointed out that the marks had been registered in the names of the organizations, rather than under his own name. Coll’s estate countered that because Coll had effectively controlled the organizations while he was alive, he was the controller of the marks.
A district court initially ruled in against Coll’s estate, stating that the ‘related companies doctrine’—under which a mark used by a company related to the mark’s originator should be attributed to the person—was inapplicable to nonprofit organizations.
Kavanaugh and his fellow judges reversed the lower court’s summary judgment, but remanded the case back to the district court for further proceedings.
Kavanaugh’s ruling was not necessarily ideal from the perspective of rightsholders, as it merely reversed a decision and sent it back for renewed deliberation. However, his broader application of the related companies doctrine is cause for some hope. In addition, the case was educational in that it demonstrated the need for careful segregation between personal and business interests, especially when a person is their business, in all practical respects.
In two cases filed against the U.S. Copyright Royalty Board (CRB), Kavanaugh ruled in favor of rightsholders.
The Copyright Royalty Board is essentially a very special type of court comprised of three copyright royalty judges who set the rates and terms for copyright royalties when rightsholders and infringers fail to come to an agreement. The CRB is quite respected, and generally creates decisions that are approved on appeal. However, Kavanaugh twice found against the CRB, in favor of rightsholders.
In SoundExchange v. Librarian of Congress, SoundExchange, a non-profit collective rights management organization which handles matters regarding digital performances, argued against a CRB ruling that so-called ‘ephemeral’ recordings did not require a royalty license. Ephemeral copies are temporary digital copies of music and other copyrights audio used in digital transmissions. These copies may be stored on servers, program editing stations, and the receivers of customers as data is downloaded and buffered. In this case, Kavanaugh ruled in favor of rightsholders, stating that ephemeral copies of sound recordings, like any other copy of a copyrighted performance used for commercial purposes, require a royalty license.
Kavanaugh sat on the bench for another case involving the CRB,Settling Devotional Claimants v. CRB. In this case, the plaintiff, a developer of religious programming, argued that the CRB had made errors in dividing shares of royalties amongst multiple rightsholders, and had unfairly rejected evidence they had submitted demonstrating that the distribution of royalties needed to be recalculated.
While Kavanaugh and the other judges ruled against some of the plaintiff’s claims, they found that the CRB’s royalty allocation “was arbitrary and capricious,” and had failed to use adequate reasoning in their royalty allocations.
The record shows that while Kavanaugh is certainly not an advocate, per se, for rightsholders, he certainly seems to be more even-handed in his rulings than the justices currently sitting on the Supreme Court.
Many aspects of intellectual property law require IP lawyers to not only consider the current state of the playing field, also to keep an eye on what changes may be on the way. Considering Kavanaugh’s potential impact on the SCOTUS and their rulings on IP-related matters is only one facet of this comprehensive, forward-looking approach.
If you need assistance with a patent, trademark, or copyright concern, the Law Office of Michael O’Brien can help. To learn more, contact us by calling(916) 760-8265, or sending us a message using our contact form.
https://www.obrienpatents.com/judge-kavanaugh...perty-law/
JUDGE KAVANAUGH’S VIEWS ON INTELLECTUAL PROPERTY LAW
July 20, 2018 by Michael O'Brien
On July 9, 2018, President Donald Trump nominated Judge Brett Kavanaugh to the United States Supreme Court. Kavanaugh has a long resume, having previously worked under Ken Starr during the investigation of Bill Clinton, and subsequently in the administration of President George W. Bush. In 2006, he was confirmed to the D.C. Circuit Court of Appeals after having originally been nominated by President Bush in 2003.
With the likelihood that Kavanaugh will become the 114thSupreme Court justice, it’s worth taking some time to examine Kavanaugh’s previous rulings involving intellectual property. What can rightsholders expect from Kavanaugh if he ascends to the country’s highest court?
https://www.obrienpatents.com/wp-content/uplo...t.jpgJudge Kavanaugh and family watch as President Trump signs the document formally naming him as a nominee for the Supreme Court.
If confirmed, Kavanaugh may well be the most rightsholder-friendly jurist on the Supreme Court.
In looking over Kavanaugh’s rulings, I found five cases that involved the interests of rightsholders. Of those, Judge Kavanaugh ruled for the rightsholder in two cases, with the other three resulting in either neutral rulings, or in favor of the other party.
A 40%-win record for rightsholders certainly doesn’t make it sound like he is particularly IP-friendly. But consider that in the last few years, the Supreme Court has ruled 9-0 against rightsholders in several high-profile intellectual property cases. Such cases include KSR v. TeleFlex, Nautilus, Inc. v. Biosig Instruments, Inc., and Mayo v. Prometheus. The most notable of this avalanche of unfortunate rulings was Alice v. CLS, which has yielded the so-called ‘two-step test’ that makes most computer software unpatentable.
With the above in mind, ruling for rightsholders 2 out of 5 times makes Kavanaugh a relative win for those looking to protect their IP. But, not all IP cases are the same.
There are two basic types of cases. The first are those in which a rightsholder is suing an infringer. In these cases, rightsholders aim to show that they have a right to protect their work, and that the alleged infringer is infringing on that right.
In the second type, a rightsholder sues the government (or a government agency) in an attempt to show that they have a right to protect their work, and that the government should ‘appreciate’ this in some explicit manner.
Kavanaugh has tentatively sided with rightsholders when suing an alleged infringer.
The most notable example of a case of this type which Kavanaugh weighed in on was Estate of Coll-Monge v. Inner Peace Movement. This case involved a question as to which of two entities owned trademarks. Dr. Francisco Coll, a Christian pastor, founded two non-profit organizations, the Inner Peace Movement and the Peace Community Church. During his lifetime, Coll created and registered a number of marks that were used to market books, songs, and other creative works.
After Coll died in 1999, his estate sued the organizations he had founded, requesting that they cease the use of his trademarks. The organizations filed counterclaims in which they pointed out that the marks had been registered in the names of the organizations, rather than under his own name. Coll’s estate countered that because Coll had effectively controlled the organizations while he was alive, he was the controller of the marks.
A district court initially ruled in against Coll’s estate, stating that the ‘related companies doctrine’—under which a mark used by a company related to the mark’s originator should be attributed to the person—was inapplicable to nonprofit organizations.
Kavanaugh and his fellow judges reversed the lower court’s summary judgment, but remanded the case back to the district court for further proceedings.
Kavanaugh’s ruling was not necessarily ideal from the perspective of rightsholders, as it merely reversed a decision and sent it back for renewed deliberation. However, his broader application of the related companies doctrine is cause for some hope. In addition, the case was educational in that it demonstrated the need for careful segregation between personal and business interests, especially when a person is their business, in all practical respects.
In two cases filed against the U.S. Copyright Royalty Board (CRB), Kavanaugh ruled in favor of rightsholders.
The Copyright Royalty Board is essentially a very special type of court comprised of three copyright royalty judges who set the rates and terms for copyright royalties when rightsholders and infringers fail to come to an agreement. The CRB is quite respected, and generally creates decisions that are approved on appeal. However, Kavanaugh twice found against the CRB, in favor of rightsholders.
In SoundExchange v. Librarian of Congress, SoundExchange, a non-profit collective rights management organization which handles matters regarding digital performances, argued against a CRB ruling that so-called ‘ephemeral’ recordings did not require a royalty license. Ephemeral copies are temporary digital copies of music and other copyrights audio used in digital transmissions. These copies may be stored on servers, program editing stations, and the receivers of customers as data is downloaded and buffered. In this case, Kavanaugh ruled in favor of rightsholders, stating that ephemeral copies of sound recordings, like any other copy of a copyrighted performance used for commercial purposes, require a royalty license.
Kavanaugh sat on the bench for another case involving the CRB,Settling Devotional Claimants v. CRB. In this case, the plaintiff, a developer of religious programming, argued that the CRB had made errors in dividing shares of royalties amongst multiple rightsholders, and had unfairly rejected evidence they had submitted demonstrating that the distribution of royalties needed to be recalculated.
While Kavanaugh and the other judges ruled against some of the plaintiff’s claims, they found that the CRB’s royalty allocation “was arbitrary and capricious,” and had failed to use adequate reasoning in their royalty allocations.
The record shows that while Kavanaugh is certainly not an advocate, per se, for rightsholders, he certainly seems to be more even-handed in his rulings than the justices currently sitting on the Supreme Court.
Many aspects of intellectual property law require IP lawyers to not only consider the current state of the playing field, also to keep an eye on what changes may be on the way. Considering Kavanaugh’s potential impact on the SCOTUS and their rulings on IP-related matters is only one facet of this comprehensive, forward-looking approach.
If you need assistance with a patent, trademark, or copyright concern, the Law Office of Michael O’Brien can help. To learn more, contact us by calling(916) 760-8265, or sending us a message using our contact form.
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