White House Consumer Privacy Bill of Rights provokes debate

In February 2015, Privacy Imagethe White House proposed a draft “Consumer Privacy Bill of Rights” that the Obama administration believes will provide a baseline of clear protections for consumers, as well as greater certainty for companies who currently have to navigate a patchwork of state privacy laws across the country.

The Consumer Privacy Bill of Rights is part of a policy memo titled “Consumer Privacy in a Networked World:  A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy.” The document calls on Congress to pass legislation that adopts the Consumer Privacy Bill of Rights. The document also asks Congress to give both the Federal Trade Commission (FTC) and individual state attorneys general authority to enforce the Bill, although only the FTC could seek financial penalties.

The Consumer Privacy Bill of Rights proposes specific obligations on companies who collect data from individual considers that will preserve the consumers rights to:

  • Individual Control (the right to exercise control over what personal
    data companies collect from consumers and how the companies use it);
  • Transparency (the right to easily understandable and accessible
    information about privacy and security practices);
  • Respect for Context (the right to expect that companies will collect, use, and disclose personal data in ways that are consistent with the context in which consumers provide the data);
  • Security (the a right to secure and responsible handling of personal
    data);
  • Access and Accuracy (the right to access and correct personal
    data in usable formats);
  • Focused Collection (the right to reasonable limits on the personal
    data that companies collect and retain); and
  • Accountability (the right to have personal data handled by companies with appropriate measures in place to assure they adhere to the Consumer Privacy Bill of Rights).

The Consumer Privacy Bill of Rights has been criticized by consumer advocacy and industry groups alike, as well as by the commissioner of the FTC. Nonetheless, it has provoked a discussion that may help establish a uniform standard for protecting consumer data across the United States. Just days after the administration released the proposal, a group of senators who criticized it re-introduced a bill that would regulate data brokers who collect and sell personal and sensitive information about consumers.

USPTO retires SAWS: will it have an effect on the USPTO’s effort to screen out poor quality patents?

The USPTO sealUSPTO’s recent announcement that it is retiring its Sensitive Application Warning System (SAWS) yielded mixed reactions from the patent community. While many noted that the announcement was a win for transparency and accountability in government, others (including some patent applicants) found little comfort after they incurred substantial time and expenses resulting from the USPTO’s delay of patent applications that were assigned to the secret program.

With roots dating to 1994, SAWS first came to light in 2006 after a leaked memo revealed that the USPTO was flagging certain patent applications that could be considered “controversial or noteworthy.” SAWS applications could not be allowed before the Examiner prepared a memo to the USPTO Deputy Commissioners for Patent Operations and Patent Examination Policy.

Some of the criteria for SAWS designation were straightforward:  applications covering perpetual motion machines, anti-gravity devices, and technologies that violate laws of physics were included in the list. Other criteria were more fuzzy: Continue reading

The trademark balancing act: Protecting your rights without enraging your customers

Trademarks symbolize the character and reputation of their owners and the quality of those finished products offered to the consumer. It typically takes years of careful cultivation to build a valuable trademark. This cultivation can include registering the mark with the U.S. Patent and Trademark Office, using the mark in a consistent and continuous manner, and taking action to prevent others from using the mark without permission. However, trademark owners often need to walk a thin line between strong enforcement and overly aggressive enforcement tactics (sometimes called “trademark  bullying”). One mis-step (or overstep) can quickly tarnish a mark’s goodwill and inflame consumers. Within days, the reputation of a strong brand built over decades can be destroyed by one over-zealous demand letter or lawsuit that finds its way from the recipient or courtroom to the Twittersphere.

AnLagunitas IPA example of this is the recent case of Lagunitas Brewing Co. v. Sierra Nevada Brewing Co.  In the case, Lagunitas alleged that Sierra Nevada’s new Hop Hunter IPA used a label that infringed on Lagunitas’ family of registered trademarks that each incorporate a stylized image of the acronym “IPA.” The complaint asserted that Sierra Nevada’s label used similar fonts to those of the Lagunitas mark, with the phrase “IPA” appearing in “prominent all-capital, large, bold, black, centralized” letters. The case included Continue reading

Are food recipes protected by copyright?

WPlatehen a chef develops a menu for a new restaurant, can the chef or the restaurant protect the recipes under copyright laws?

In a word, no. As a federal judge in Ohio recently explained, copyright protects the particular layout of a recipe in a published recipe book, or the photos that accompany the recipe. But copyright does not protect the idea or instructions that the recipe embodies.

In the case, two Cleveland restaurateurs opened a pair of restaurants serving casual fare like sandwiches, pizza, wings and salads. After three years, the founders split. The departing founder soon opened his own restaurant serving similar menu items. The remaining founder sued the departing founder, bringing claims of copyright infringement, breach of contract and misappropriation of trade secrets, among other things.

When addressing the copyright claim, the court quoted an unpublished Sixth Circuit opinion which stated: Continue reading

What does the USPTO’s 2014 Interim Guidance on Patent Subject Matter Eligibility mean for software inventions?

At the end of a year in which the patent eligibility of software inventions came under fire like never before, the USPTO finally issued its long-awaited 2014 Interim Guidance for Subject Matter Eligibility, which describes how patent examiners should assess whether a patent application includes patent-eligible subject matter. While the new Interim Guidance may not satisfy many inventors who wish to patent their software, it can help inventors identify the types of inventions that have a chance of success, as well as those for which a patent application may be an exercise in futility.

The new Interim Guidance was prompted in part by several U.S. Supreme Court decisions, including the Court’s June 2014 decision in Alice v. CLS Bank. In  Alice, the Court established a two-part test for patent eligibility. Under the Alice test, one must first “determine whether the claims at issue are directed to a patent-ineligible concept.” Then, one must determine whether there are sufficient limitations present in the claim “to ensure that the patent in practice amounts to significantly more than a patent upon the ineligible concept itself.” Since Alicecourts have overturned a significant number of patents covering software and business methods as lacking patent-eligible subject matter.

When it comes to software, the Interim Guidance provides direction almost exclusively by example, listing cases in which various courts have overturned or upheld patents relating to software.  However, some general themes are apparent throughout the document: Continue reading

Kimble v. Marvel Enterprises: a patent licensing case to watch in 2015

Expired2015 could prove to be a time of change for patent licensing law, as the Supreme Court recently agreed to review the long-standing rule that a patent holder may only receive royalties during the term of a patent, and not after it expires.

In the case that is the subject of the appeal, Kimble v. Marvel Enterprises, Inc., the inventors of a toy with Spider-Man-like web-shooting capabilities sold a patent covering the toy to Marvel Enterprises. The agreement imposed Continue reading

How long does patent and trademark prosecution take? (2014 edition)

At the end of each fiscal year, the USPTO releases a Performance and Accountability Report, which is loaded with data about patent and trademark allowance rates, average pendency, and other details. The USPTO recently released its Performance and Accountability Report for Fiscal Year  2014. This means that it’s time for IP Spotlight’s annual review of the question:  “how long does it take to receive a patent or trademark registration?”

To answer that question, here are a few highlights from the USPTO’s 2014 report:

Patents:  After several years of steep reductions in patent application pendency, the USPTO’s efforts appeared to plateau in fiscal year (FY) 2014. The average time between filing and first office action was 18.4 months, which was slightly above FY 2013’s average of 18.2 months. The USPTO fared better in reducing average total pendency from 29.1 months in FY 2013 to 27.4 months in FY 2014, but this was still short of the USPTO’s goal of 26.7 months.

The USPTO acknowledged that it faces challenges in continuing to reduce pendency. The challenges include the redirection of resources to other initiatives, such as and initiative to reduce the backlog of unexamined Requests for Continued Examination (RCEs), and the development of guidance relating to the changing law relating to patent-eligibility. The USPTO also received more patent applications and granted more patents in FY 2014 than in any previous year.

The pendency rates vary depending on the technology covered by the patent application. For example:

  • applications relating to biotechnology and organic chemistry (USPTO Technology Center 1600) have an average wait time of 15.0 months to first action, and an average total pendency of 26.2 months;
  • applications relating to chemical and materials engineering (USPTO Technology Center 1700) have an average wait time of 19.5 months to first action, and an average total pendency of 28.8 months;
  • applications relating to networking, multiplexing, cable and security (USPTO Technology Center 2400) generally wait 18.6 months to first action, and have an average total pendency of 30.8 months;
  • applications relating to communications technologies (USPTO Technology Center 2600) have an average wait time of 17.8 months to first action, and an average total pendency of 28.7 months; and
  • applications relating to mechanical engineering products (USPTO Technology Center 3700) have an average wait time of 21.3 months to first action, and an average total pendency of 31.1 months.

The total average pendency is highest for applications involving computer architecture, software & information security (USPTO Technology Center 2100), where total pendency averages 31.7 months.

The overall patent allowance rate was 54.4% in FY 2014– a slight decrease from FY 2013’s 55.2%.

Other interesting statistics include:

  • The number of appeals filed against final rejections declined by over 10% in FY 2014.
  • The USPTO’s efforts to reduce the backlog of RCEs appear to be paying off. The number of unexamined RCEs dropped by over 40% in the past year.

Trademarks:  In FY 2014 the average time from filing to first Office Action in a trademark application was 3.0 months, and the average total pendency was 9.8 months.  These numbers are similar to the statistics for the past three years, and better than the USPTO’s goals of 3.5 months to first action and 12.0 months of overall pendency.