(U.S. Fed. Cir., False Advertising, Intellectual Property, Manufacturing, Patent) In a licensed patent attorney’s qui tam action under 35 U.S.C. section 292 alleging that defendant had falsely marked its products with expired patent numbers for the purpose of deceiving the public, district court’s judgment is affirmed in part and vacated in part where: 1) summary judgment of no liability in favor of defendant was proper as false marking, combined with knowledge of the falsity, merely creates a rebuttable presumption of intent to deceive the public, and here, defendant provided credible evidence that its purpose was not to deceive the public with either the expired patent markings or the “may be covered” language, and plaintiff raised no genuine issue of material fact showing otherwise; and 2) district court’s determination on the meaning of the word “offense,” in holding that defendant could have committed at most three offenses is vacated as Forest Group, 590 F.3d 1295 holds that every false marked product constitutes an “offense” under section 292.

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(U.S. Fed. Cir., Civil Procedure, Health Law, Intellectual Property, Patent) In a patent infringement suit, summary judgment for defendant of invalidity of the asserted claims of a patent relating to an implantable device used to set bone fractures is reversed where: 1) the district court improperly resolved genuine issues of material fact in favor of defendant; and 2) reassignment is advisable to preserve the appearance of justice as the district court has now been reversed twice after entering summary judgment against plaintiff, in both instances simply signing defendant’s proposed statement of law and facts relevant to the decided issues, a disfavored practice in the Ninth Circuit.

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(U.S. 9th Cir., Contracts, Copyright, Entertainment Law, Intellectual Property, Media Law) In an action alleging copyright infringement under federal law and breach of contract under California law based on defendants’ alleged misappropriation of plaintiffs’ screenplay, summary judgment for defendants is affirmed in part where, even if defendants had access to the screenplay, plaintiffs did not show sufficient similarity between the screenplay and the film (The Last Samurai) to maintain an infringement claim under federal copyright law. However, the judgment is reversed in part where novelty was not required for an implied-in-fact contract claim arising out of unauthorized use.

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(U.S. 9th Cir., Civil Procedure, Copyright, Entertainment Law, Ethics & Professional Responsibility, Intellectual Property, International Law, Sanctions) In plaintiff’s counsel’s appeal from an order by the district court sanctioning him for his five-year bad faith pursuit of a frivolous copyright infringement claim, the order is affirmed where: 1) had counsel, a self-described experienced copyright lawyer, made even a cursory investigation into the circumstances of plaintiff’s 21-year old composition, he would have known plaintiff had no copyright interest in music he composed for hire; 2) counsel’s repeated misrepresentations of Indian copyright law clearly evidenced his recklessness and bad faith; and 3) the district court carefully excluded inadequately documented costs, as well as taxable costs not included in defendants’ bill of costs.

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(U.S. Fed. Cir., Contracts, Intellectual Property, Patent) In an infringement action concerning a patent related to a graphics system and process that mainly operates on a floating point format, judgment of the district court is affirmed in part, vacated in part and remanded where: 1) because the district court erroneously construed two of the three contested limitations, summary judgment on claims with those terms is vacated; 2) district court erred with respect to the effect of the Microsoft license on direct infringement; and 3) district court’s judgment is affirmed in all other respects.

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(U.S. 8th Cir., Contracts, Copyright, Food & Beverages, Intellectual Property) In an action alleging copyright infringement and breach of contract arising out of defendants’ alleged misappropriation of plaintiff’s restaurant designs, summary judgment for defendants is affirmed where plaintiff unambiguously conveyed all contested copyrights to defendants by written contract.

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What a shock.  Lobbyists always get all of the best legislation through.  A House committee passed proposed legislation last week, the “Pro IP Act,” which would increase the penalties for illegally copying and distributing  movies and music.  The bill would also create a White House-level position termed an “Intellectual Property Czar.”  And therein lies one of the bills more serious stumbling blocks.

The bill heads to the House floor for a full vote this summer.  The Senate version of the bill is currently in committee.  Even if it passes Congress, there’s no guarantee that the President will sign it into law.  The White House reportedly has “very serious concerns with the legislation.”  So a veto is still possible.

Not surprisingly, the bill is championed by the music and movie business, as well as by other industries that have a great deal invested in their intellectual property (“IP”).  However, the Department of Justice has serious misgivings about the bill, particularly when it comes to a White House official who could interfere with the DOJ’s independence in matters involving criminal enforcement of IP laws. 

 The DOJ is rightly concerned that such a position could become “easily politicized.”  But what can’t in Washington anymore?  The DOJ certainly isn’t immune either.  Remember the Alberto Gonzalez scandal last year regarding the politically-motivated firings of federal prosecutors who were not perceived as being loyal enough to the Republican party and the current administration?  So politics is inescapable.  It’s only a matter of degree.

But the DOJ has a point and common sense will hopefully prevail.  While the DOJ is obviously not immune from political pressure either, it’s certainly more immune than a White House official is—at least in theory.  And installing an official beholden to the concerns of certain industries only sends yet another message to empower special interest groups with large checkbooks.  At a time when election-year politicians, watchdog groups, and voters alike are decrying the massive influence of lobbyists, installation of an “IP Czar” will only serve to escalate the rhetoric.   

Second, as a general matter, never trust the title of any position that has the word “czar” in it, even informally.  I regard that as somewhat—oh, what’s the word?— “undemocratic.”  Few will deny that IP theft and infringment threatens the viability of numerous industries.  But creating a special Cabinet-level position is not the answer.

Despite the House’s attempt to “clarify” and limit the czar’s role to “coordinat[ing] anti-piracy efforts across government” and not to “making policy,” what does this really mean from a practical perspective?  Wide scale coordination efforts seem to imply a certain amount of policy-making authority.  And historically, “czars” usually haven’t been subject to too much control.

Besides, why an “IP Czar” anyway?  Why not create an “Outsourcing Czar?”  With some studies estimating that 1 million to 2.5 million American jobs have been lost due to outsourcing, this issue affects far more people across many more industries.  Or how about a “Healthcare Czar?”  That’s an issue which affects everyone.  Oh yes, that’s right.  The common man has no lobbyist.  All we have are legislators.