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Blog by Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO Michelle K. Lee

I've been sued...I got a letter...Related Lawsuits
About Patent Infringement
About PatentsResourcesGlossary

The online Patent Litigation toolkit features several Web pages containing plain language answers to commonly asked questions about demand letters and patent infringement complaints, such as:
• what a patent is,
• what to do if sued for patent infringement, and
• what to do after receiving a demand letter.

To the extent that legal terms are included, the toolkit has a useful glossary to ensure that consumers and “Main Street” retailers are on the same page. By presenting the information in as straightforward a manner as possible, the USPTO sees this toolkit as a first-stop for people learning about their rights and trying to understand the various courses of action available under their circumstances.

The toolkit also features links to many external websites offering certain services free of charge (some with site registration required) that may assist persons faced with demand letters or infringement suits.

What is patent infringement?  Patent infringement is the act of making, using, selling, or offering to sell a patented invention, or importing into the United States a product covered by a claim of a patent without the permission of the patent owner. Further, you may be considered to infringe a patent if you import items into the United States that are made by a patented method, unless the item is materially changed by subsequent processes or becomes a trivial and nonessential component of another product. A person “infringes” a patent by practicing each element of a patent claim with respect to one of these acts.  Further, actively encouraging others to infringe patents, or supplying or importing components of a patented invention, and related acts can also give rise to liability in certain cases.

Have others been sued on the same patent?  if you’ve received a demand letter or patent infringement complaint and want to determine how best to proceed, it’s useful to collect as much information as possible about the patent being asserted. With this in mind, the toolkit provides links to sites that help identify whether others have been sued regarding the same patent. This can help you locate parties who might have faced similar issues. Additionally, the toolkit links to sites with information about other legal proceedings involving the patent, including proceedings before the USPTO.

What is a patent?

A patent is an intellectual property right granted by the U.S. Patent and Trademark Office that gives a patent owner the right “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted. The “invention” is set forth by a patent’s “claims” (described below), and individual claims of a patent or patent application may be challenged, as set forth below.

Basic information about patents and the process of applying for a patent can be found at the Inventor’s Resources webpage. Also you may find this video from the Federal Judicial Center helpful in explaining patents and the patenting process.

The toolkit provides access to a patent attorney database, and it features information about law school clinics that have programs to advise and/or represent entities such as small inventors and entrepreneurs who otherwise would not have access to high-quality intellectual property law services.

 

 

“ALEX AND ANI” STACKS ITS BANGLES INTO COURT

PATENT BY DESIGN™

Patent by Design™ is an educational column directed at issued designed patents and the people and events surrounding the design patents. Creator – Elizabeth Reilly

Rhode Island District Court: Opinion

I received my first Alex and Ani bracelet from my twin sister Annie. Living in Tacoma, WA I wasn’t familiar with Alex and Ani.  During a trip back home to N.Y. I learned about Alex and Ani in a special way.  Annie wished to memorialize her last chemo/radiation treatment against her breast cancer.  She presented me with my initial “E” extending from a bangle. I took the subway and went directly to Bloomingdales and purchased the Alex and Ani “Butterfly” bangle. Our mother loved butterflies and their delicate colorful wings. I wanted Annie to think of our beautiful mother as she delicately took her next steps of survival against breast cancer.
Alex and Ani are facing their challenges in Rhode Island District Court.

BUSINESS

A store employee displays some of Alex and Ani’s jewelry in 2012.

PROVIDENCE, R.I. — A U.S. District Court judge ruled Friday that he will allow a lawsuit claiming discount retailer BJ’s Wholesale Club and a group of distributors defrauded the high-profile Alex and Ani jewelry company.

In a 25-page ruling released Friday, U.S. District Court Judge William E. Smith dismissed attempts by BJ’s and the distributors to have the case dismissed. The ruling stems from a lawsuit Alex and Ani filed in late 2013 when the Rhode Island company discovered some  of its popular bracelets on sale at BJ’s stores in Rhode Island and Massachusetts.

U.S. District Court Judge William E. Smith
Photo: Frieda Squires / The Providence Journal

Cranston-based Alex and Ani claimed the distributors obtained some 26,000 pieces of its popular “positive-energy” jewelry improperly and at heavily discounted prices in what the judge described as “this bewildering ballad of bungled bangle banditry.”

Alex and Ani sells its popular bracelets and other jewelry at its own stores and through agreements with other retailers and distributors around the world.

Smith notes that, before Alex and Ani will affiliate with another company “it employs a rigorous screening process to ensure that jewelry is displayed in a manner that preserves (Alex and Ani’s) premiere-level brand.”

Alex and Ani on Monday afternoon released the following statement through spokesman Gregg Perry: “We are pleased with the decision by the Court allowing this lawsuit to go forward against all of the defendants. The company will continue to vigorously defend and protect the Alex and Ani brand and we will turn to the courts to do so when we believe the facts, such as those in this case, require us to do so. Alex and Ani looks forward to presenting its case in full before the Court.”

The company asserts that its goods came to BJ’s through a fraudulent scheme concocted by people trying to satisfy a BJ’s representative’s request for Alex and Ani goods.

In addition to BJ’s, the lawsuit names  Elite Level Consulting LLC, Travis J. Brody, J. Jonathan Weiss, Luxury Business Jets LLC, Roxy Inc., Genesis Sales Corp., JJ & M Corp.

Alex and Ani claims these middlemen duped them by claiming the goods would be handed out as gifts during a prestigious horse riding competition in Florida known as the Wellington Classic Fall Challenge and at the Austin Film Festival.

In the end, Brody and Elite bought 26,668 pieces of jewelry with a retail value of nearly $1 million for $250,000. The goods ended up in BJ’s, where they were sold at discounts.

Alex and Ani asserts BJ’s continued to sell the jewelry even after Alex and Ani notified the Massachusetts discounter that the goods had been obtained fraudulently.

In seeking to get the case dismissed, Smith wrote, Roxy, Genesis and JJM “stack arguments . . . like so many Alex and Ani bracelets upon the outstretched arm of a trendy woman.”

While dismissing some of Alex and Ani’s claims, Smith decided to let case proceed.

 

Alex and Ani claims that the local store’s bracelets – made by North Attleborough company Nori Fundraising Concepts – violate the company’s patent and are knockoff products.The store started selling the charm bracelets in September, when employee and 2005 North Attleborough High School graduate Christopher Wynn came up with the idea.Alex and Ani alleges that Northeast Jewelers is violating its 2004 patent for expandable wire bracelets.”I’m confident this one will be successful as well,” he said. “But we’ll leave that up to the professionals.””I’m not concerned at all,” Northeast’s Wynn said. “They’ve got nothing on us. They’re just trying to push the smaller guy around and bully us. But we’re not going to roll over.””We were a small operation working out of a basement as recently as 2010, so I don’t know what he’s talking about,” Feroce said. “Our hard work is what has made us successful, so if he’s saying our hard work should be ignored he’s out of touch with how I think most Americans would feel.””People have been coming out of the woodwork to bring us patents from the 1960s and 1970s that show that similar bracelets have been made locally for a long time,” he said. “We’re happy about the public reaction, with everyone rooting us on.””Everything they’re doing is in direct contrast to how we operate,” he said. “We’ve created between 3,000 and 4,000 jobs in southeastern New England and we’ve done a lot of good for the community. We certainly have a tremendous amount of local support.””We’re not here to start a fight,” he said. “We’re just trying to do a good thing. We’re not making millions here; we’re just trying to do some good in the world.””We donate millions of dollars, that’s what we’re all about,” he said. “So for him to hide behind a charity like this is despicable in my opinion. He’s just trying to make money on the back of the hard work of others.”Feroce is also accusing Northeast Jewelers of not paying Alex and Ani when the store carried its products years ago.Krauss said he thought his relationship with Feroce was amicable until recently, and he said Alex and Ani shouldn’t be using patent law to come after him now due to underlying issues.Krauss said this lawsuit reveals the true nature of Alex and Ani.Wynn said he will continue to go forward with expanding the fundraising line, and he has been encouraged by the public’s response to the concept.Wynn said the store will still have some retail and will continue to repair jewelry and buy gold on site, but the focus will be on Nori products.

  • “We’ve done no marketing,” he said. “And it’s still growing, with colleges and schools from all over the country calling us. We had no idea how popular this would be. We wanted to help North Attleborough’s schools, and it just blew up on social media.”
  • “Other companies make the exact same bracelets in the area, and they’re not going after them,” Krauss said. “Why would he be trying to bury us? Just because he’s angry that he forgave our debt and now we’re seeing some success? That’s horrible. He forgave my debt to help my business get back on its feet, and now that we’re back on our feet he’s trying to take us down?”
  • “I have nothing to hide,” he said. “He forgave my debt because I was having business difficulties and my wife was disabled, and we came close to losing our house. When all of that happened I thought Alex and Ani was a great company and I really appreciated what they did. But now they’re trying to make everything worse, and that’s a horrible thing to do.”
  • “This was a non-paying retail customer who I forgave,” he said. “I could have sued them. So for him to turn around and create this kind of local chaos is despicable.”
  • This dispute between the two companies goes deeper than a mere patent lawsuit.
  • Feroce said Alex and Ani has also donated to charity in the past couple of years through its Charity by Design program.
  • Wynn said it’s surprising Alex and Ani came after his company for two reasons: first, all the jewelry is made offsite, and second, his company is giving proceeds to charity.
  • Feroce said his company also has a lot of local support.
  • Wynn said the community has rallied to support his local business.
  • Feroce said he was offended by his company being called a bully.
  • Northeast Jewelers president Stephen Krauss said similar bracelets have been around for decades, so he hopes to prove that Northeast doesn’t infringe on Alex and Ani’s patent, and the patent may in fact be invalid.
  • Alex and Ani CEO Giovanni Feroce said his company has fought countless similar patent lawsuits, and has won every single one.
  • Now, less than five months later, the fundraising line has expanded to the point that the company is removing its retail line and almost exclusively becoming a wholesaler for Nori bracelets.
  • Northeast Jewelers sells around 100 different charm bracelets, each emblazoned with the logo of a school or charitable organization. A portion of each sale goes to the specified organization.
  • Downtown business Northeast Jewelers is planning to fight a lawsuit brought by jewelry giant Alex and Ani.

 

EXPERIENCE HENDRIX V. PITSICALIS

Experience Hendrix suit against Pitsicalis alleging that Pitsicalis was infringing trademarks in violation of the Lanham Act, 15 U.S.C. 1051-1127, and that the trademark infringement also amounted to an unfair or deceptive trade practice proscribed by Washington’s Consumer Protection Act (WCPA), Wash. Rev. Code 19.86.010-19.86.920. Determining that Pitsicalis had Article III standing, the court concluded, inter alia, that the WPRA was constitutional as applied to the narrow set of non-speculative circumstances at issue in this case; Pitsicalis was liable under the Lanham Act for using domain names that infringed Experience Hendrix’s trademark “Hendrix”; and Paragraph 5 of the permanent injunction failed to state clearly the terms of the injunction and did not describe in reasonable detail the acts that were and were not restrained. Accordingly, the court reversed the district court’s determination that the Washington statute was unconstitutional and remanded Pitsicalis’s declaratory judgment claims pertaining to the WPRA with instructions to enter judgment on those claims in favor of Experience Hendrix; affirmed the grant of partial summary judgment on Experience Hendrix’s claim that Pitsicalis’s use of domain names infringed Experience Hendrix’s mark; vacated the permanent injunction and remanded so the district court could revise the language at issue; reversed the Rule 50(b)(3) decision to strike most of the jury’s award of damages under both the Lanham Act and the WPRA; affirmed the district court’s order granting a new trial on damages under both statutes; remanded for a new trial on such damages; vacated the district court’s award of attorney’s fees under the WCPA; and remanded the fee request for further proceedings.

Also, see Jimmy Hendrix Official Site

PATENT TERM EXTENSIONS – PTO PARTLY CORRECT AND PARTLY INCORRECT

 USPTO Patent Term Calculator
 

Novartis AG v. Lee
Docket: 13-1160 Opinion Date: January 15, 2014
Judge: Taranto
Areas of Law: Patents

In 1999, Congress provided for extensions of patent terms to compensate for certain application-processing delays caused by the Patent and Trademark Office; 35 U.S.C. 154(b)(1) makes a “Guarantee of no more than 3-year application pendency,” The statute provides that “the term of the patent shall be extended 1 day for each day” that the PTO does not meet certain response deadlines, for each day after the PTO fails to issue the patent within three years, subject to exclusions, and for each day of delay due to an interference, secrecy order, or successful applicant appeal. Novartis challenged PTO determinations of how much time to add to the otherwise-applicable term 18 of its patents. The district court dismissed claims regarding 15 patents as untimely. For the other three, the court rejected the PTO’s construction of the statutory provision. The Federal Circuit affirmed with respect to timeliness, but held the PTO was partly correct and partly incorrect in its interpretation of section 154(b)(1)(B). Novartis was entitled to most, but not all, of three patent term adjustment. Read full Opinion

18th Annual Independent Inventors Conference Canceled

It is with great regret that the United States Patent and Trademark Office must cancel our 18th Annual Independent Inventors Conference scheduled for October 11th and 12th at our headquarters. While the USPTO remains open during the general government shutdown that began October 1, 2013 by using prior year reserve fee collections to operate as usual for approximately four weeks, difficult decisions have to be made to ensure core patent and trademark operations are maintained for as long as possible. It is this agency’s intent to reschedule this conference, which has long proven to be of great value to the U.S. innovation community, after the government resumes full operation. Stay tuned for more information as it is available.

USPTOCancelled It is

Salmonella Heidelberg Heist on Foster Farms

Visit NBCNews.com for breaking news, world news, and news about the economy

Video: Nearly 300 people in 17 states have been sickened by a serious salmonella outbreak linked to Foster Farms chicken processing plants in California, and the Centers for Disease Control says there may be many more instances that have gone unreported. NBC’s Tom Costello reports. Please, see, News Report presented by JoNel Aleccia, NBC News

According to CDC, as of October 7, 2013, a total of 278 persons infected with seven outbreak strains of Salmonella Heidelberg have been reported from 17 states.
42% of ill persons have been hospitalized, and no deaths have been reported.
Most ill persons (77%) have been reported from California.
Epidemiologic, laboratory, and traceback investigations conducted by local, state, and federal officials indicate that consumption of Foster Farms brand chicken is the likely source of this outbreak of Salmonella Heidelberg infections.
As of October 7, 2013, U.S. Department of Agriculture’s Food Safety and Inspection Service (USDA-FSIS) issued a Public Health Alert due to concerns that illness caused by Salmonella Heidelberg is associated with chicken products produced by Foster Farms at three facilities in California.
This investigation is ongoing. USDA-FSIS is prepared to take additional actions or expand the investigation based on new evidence.
The outbreak strains of Salmonella Heidelberg are resistant to several commonly prescribed antibiotics. This antibiotic resistance may be associated with an increased risk of hospitalization or possible treatment failure in infected individuals.
It is not unusual for raw poultry from any producer to have Salmonella bacteria. CDC and USDA-FSIS recommend consumers follow food safety tips to prevent Salmonella infection from raw poultry produced by Foster Farms or any other brand.

USPTO OPERATION STATUS PENDING

USPTO Operations Pending

USPTO does have a plan, namely, Plan for Orderly Shutdown Due to Lapse of Congressional Appropriations,(hereinafter, “The Plan”). The USPTO has sufficient funds from other than FY14 appropriations to continue full operations for approximately 4 weeks. Therefore, all 11,789 employees of the USPTO will be excepted for approximately up to 4 weeks following a lapse in appropriations. After this time period, the USPTO will execute the Plan as described in the “Plan” and excepted employees will be listed under the category of “Employees, not otherwise exempt, to be retained to protect life and property”.

18th Annual Independent Inventors Conference. October 11 – 12, 2013, USPTO, Alexandria, VA

Register now for the 18th Annual Independent Inventors Conference

USPTO 18th Annual Inventors Conference
18th Annual Independent Inventors Conference. October 11-12, 2013. USPTO, Alexandria, Va.
The United States Patent and Trademark Office’s (USPTO) 18th Annual Independent Inventors Conference will be held October 11-12, 2013. After taking place in various regions around the country, the annual conference comes home to the USPTO headquarters in Alexandria, Va.

For two days, independent inventors and small business owners will have an unparalleled opportunity to learn, network, and jumpstart their creative endeavors. Experts and senior officials from the USPTO, including Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO Teresa Stanek Rea and Commissioner for Patents Margaret (Peggy) Focarino, will present valuable information on patents, trademarks, and other intellectual property (IP) matters. Successful business owners and inventors will relate their inspiring personal experiences in bringing their dreams to market. In addition, representatives from government, legal, and business development entities will discuss commercial best practices and the various resources offered by their organizations. Each attendee will have an exclusive opportunity to meet one-on-one with a USPTO expert or IP professional and discuss innovation matters important to them. A pre-conference workshop is available the evening of October 10 to help conference-goers prepare for getting the most out of their experience.

Keynoting the event is prolific inventor Woody Norris, who is responsible for a wide range of technologies, including the hypersonic sound focusing device.

Attendees will also be able to choose from a variety of panels and breakout sessions that address specific intellectual property topics relevant to the modern inventor and small business owner. These sessions include hands-on workshops on patent and trademark application filing, prior art searching, and recent changes in legislation that affect business owners and inventors, among many other topics.

The 18th Annual Independent Inventors Conference promises to be a great opportunity. We look forward to seeing you in October!

For more information, contact the USPTO’s Office of Innovation Development at 571-272-8877 or 866-767-3848 or email independentinventor@uspto.gov.

 

Aaron Swartz…Peace Be With You…

 
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http://blog.reddit.com/2013/01/aaronsw-1986-2013.html

Sad News…NYT reported by Ravi Somaiya.

Aaron Swartz, was found dead in his New York apartment. Mr. Swartz, a wizard of the internet and only 26 years of age, had apparently hanged himself, and that a friend of Mr. Swartz’s had discovered the body. At 14, Mr. Swartz helped create RSS, the nearly ubiquitous tool that allows users to subscribe to online information.  He formed a company that merged with Reddit, the popular news and information site. He also co-founded Demand Progress, a group that promotes online campaigns on social justice issues — including a successful effort, with other groups, to oppose a Hollywood-backed Internet piracy bill.

Mr. Wolf said he would remember his nephew, who had written in the past about battling depression and suicidal thoughts, as a young man who “looked at the world, and had a certain logic in his brain, and the world didn’t necessarily fit in with that logic, and that was sometimes difficult.”