Washington Redskins, GoPro, DraftKings, FanDuel, patent litigation spike, Alice stats, monkey selfie – the week in IP

Also on the blog this week:

View our webinar on obviousness in US district courts and PTAB

Guest post: China’s patent revolution - from imitation to innovation

The Washington Redskins this week played what the Washington Post called the “Take Yo Panties Off” defence, in its bid to save its controversial trade marks.

In the opening brief in its appeal filed last week with the US Court of Appeals for the 4^th Circuit, Pro-Football listed names of porn, clothing and beer companies that have been granted trade marks by the USPTO.

“The notion that all two million currently-registered marks are government speech is astounding,” said the brief, submitted by Robert Raskopf of Quinn Emanuel Urquhart & Sullivan and Lisa Blatt of Arnold & Porter. “It is equally disturbing. The PTO has registered hundreds if not thousands of marks that the Team believes are racist, or misogynistic, vulgar, or otherwise offensive. By way of example only, the following marks are registered today: TAKE YO PANTIES OFF clothing … DANGEROUS NEGRO shirts … DUMB BLONDE beer … These are not isolated instances. The government routinely registers pornographers’ marks … None of this is government speech. Nor is the government subsidizing these marks. Registration of trademarks, like copyrights and patents, is not akin to a government loan, grant, or other type of gift.” [The passage included other trade marks that have been omitted by the author).

The brief also featured a footnote with 31 more trade mark registrations, including PARTY WITH SLUTS, REDNECK ARMY apparel and BOOTY CALL sex aids.

The Washington Post explained that the Redskins is making a two-pronged argument: How can the government allow federal trademark registrations for those inflammatory entities but strip the Redskins of their protections? And how can the government reject a registration without infringing on First Amendment rights, regardless of how offensive it is?

“A ban on registering ‘disparaging’ trademarks unconstitutionally burdens speech based on content and viewpoint, just as would a ban on registering copyrights for ‘disparaging’ books,” said the brief.

The makers of the Polaroid camera has filed a lawsuit against GoPro claiming infringement of its design patent, reports Fortune.

C&A Marketing filed a lawsuit in the District of New Jersey to halt GoPro’s sales of its Hero4 Session product as well as award damages. It was filed by Morrison & Foerster.

The company claims infringement of a patent for its new Polaroid Cube camera that it filed for in January 2014, which is directed to a cube-shaped camera with rounded corners and a front side camera lens with large buttons on top.

GoPro denied infringement and says that EU and US patents issued in March show that it “was working on Hero4 Session well before the competitor filed for its patent, which covers its own product – not GoPro’s”.

Another interesting patent infringement dispute arose this past week, when DraftKings, FanDuel and Fox Sports were sued in the Eastern District of Texas for patent infringement by Virtual Gaming Technologies, reports Forbes. It claims that the inventions of William Junkin, president of FanstasySports.com, have been infringed.

“The claims in the patents-in-suit are directed at systems and methods that enable participants in a fantasy sports league, sometimes referred to as a ‘rotisserie league,’ to interact with the contest system on a real-time basis,” Virtual Gaming said in a filing.

The lawsuit involves two patents related to real-time interactive gaming systems, one called “interactive system allowing real time participation” and the other called “interactive television system and methodology”.

This is not the first IP-related lawsuit FanDuel has faced. Last month, Washington Redskins wide receiver filed a right of publicity lawsuit against the company for using his name, image and likeness without consent.

Patent litigation filing will be a popular pastime this month, according to law firm Dykema. The reason? New pleading standards are set to come into effect at the start of December.

When the new rules come in, patent litigations will need to follow higher pleading standard as set out in the Supreme Court’s Iqbal and Twombly cases that a complaint must show that the cause of action is plausible.

“What constitutes a ‘plausible’ claim in patent litigation is very unclear at this point and will likely require many months of motion practice at the district and appellate levels before we see a consensus forming,” said Aaron Charfoos in a post on Dykema’s SerendIPity blog.

Charfoos said most people agree that a significant percentage of complaints filed today will not satisfy the new standard.

“That’s why we anticipate that many plaintiffs, particularly non-practicing entities, will not want to deal with the uncertainty of the new standard and the added cost and time from defending against a motion to dismiss. They only have one more month to file before the new rules take effect and may be working to get their complaints on file before then.”

Robert Sachs has posted the latest stats on the fallout of the Alice decision on Fenwick & West’s BilskiBlog.

There have been 34 district court decision in the past two months, with the percentage of invalidity decision constant at 70.5%. The number of patent claims that have been invalidated is now more than 11,000.

“There have been no new Federal Circuit Section 101 decisions, but we're going to see a flurry of activity in the next couple of months, as the court has recently heard oral argument in a number of patent eligibility cases, and more are on calendar for November,” noted Sachs.

He added that motions on the pleadings have soared, with 23 in the past two months, and the success rate has increased slightly to 71.4% from 70.1%. “The motions on the pleadings are the second scariest thing to a patent holder after the spectre of attorney fees under Octane Fitness,” said Sachs.

The post also included interesting statistics on invalidity rates by district and by judge.

The latest in the seemingly-never ending monkey selfie story came this week with a filing of a motion to dismiss by photographer David Slater, reports Techdirt.

Peta filed the lawsuit in September against Slater and relates to the infamous monkey selfie that was taken in Indonesian island Sulawesi in 2011. In the complaint filed by Irell & Manella on behalf of "Naruto, a crested Macaque", Peta seeks a court order allowing Peta to administer proceeds from the photos for the benefit of the six-year-old monkey. Although Slater believes he holds copyright to the photos, the US Copyright Office last year specified that a photo taken by a monkey would not qualify for copyright.

The motion to dismiss states: “A monkey, an animal-rights organisation and a primatologist walk into federal court to sue for infringement of the monkey’s claimed copyright. What seems like the setup for a punchline is really happening. It should not be happening. Under Cetacean Community v Bush 386 F.3d 1169 (9^th Circ. 2004), dismissal of this action is required for lack of standing and failure to state a claim upon which relief can be grated. Monkey see, monkey sue is not god law – at least not in the Ninth Circuit.”

Techdirt also delved further into the fuss over a takedown notice on CafePress related to George Orwell’s 1984, reported on this blog last week.

It seems that the story was not so much one of Orwell’s estate aggressively targeting internet radio host Josh Hadley for trying to sell T-shirts bearing the slogan “1984 is already here” but rather one of CafePress ordering the takedown after the Orwell estate had objected to another product that featured a photo of British English author.

“While many have reported on this story as the Orwell Estate being Orwellian, the truth here seems more like CafePress being Kafkaesque,” said Techdirt.

In our news and analysis this week:

Latest IP moves – Europe and Africa

Compulsory licensing of IP rights in China