Tablet Wars

That’s the title of my Slaw post for today.  It reads as follows. 

Simon’s post earlier today mentioned the Apple vs Samsung patent lawsuits over tablets and smartphones. The reference to 2001 as prior art is amusing – lets not forget the Star Trek PADD as well. There is actually a Star Trek PADD app for the iPad.

Simon linked to a list of the various lawsuits between Apple and Samsung in various countries. Here is a graphic produced by Reuters that shows patent related suits between mobile manufacturers.

There is market share and a lot of money at stake here. A big reason behind the Google aquisition of Motorola was for its patents. The recent purchase of Nortel patents by a consortium including Apple, Microsoft and RIM for billions of dollars also attests to that.

Many (myself included) believe that smartphones and tablets are causing and will continue to cause revolutionary change in the way we work and go about our lives. Consider the following examples:

United Airlines and Apple announced that the airline will deploy 11,000 iPads for its pilots to replace paper flight manuals with electronic flight bags, or EFBs. This is expected to save 16 million sheets of paper and 326,000 gallons of jet fuel a year.

This CNET video lists the top 5 things that the smartphone replaces. MP3 player, personal planner, digital point and shoot camera, portable GPS, alarm clocks. Also video cameras, newspapers, landlines, books.

This All Things D article talks about how iPads are replacing cash registers.


Food for thought: Apple v Samsung lawsuit, and the state of broadband in Canada

That’s the title of my Slaw post for today.  It reads as follows.

Apple has sued Samsung claiming that Samsung’s tablets violate Apple tablet patents. Some of the features in question are actually part of the Android operating system, not just the tablet itself. In Australia, sales of Samsung’s new Galaxy Tab 10.1 are on hold pending court action. Setting aside the legal issues, and the debate over whether such patents are a good or bad thing for innovation, consider this point of view by Mike Masnick of Techdirt:

But, really, all Apple has done with this lawsuit is to signal to the world (loudly) that hey, we’re really freaking scared that Samsung has built a better product than we have.

Author Peter Nowak has published an article entitled “CRTC is peddling broadband Kool-Aid” that suggests that the state of broadband in Canada is not as rosy as the CRTC paints it. A CRTC report suggests that prices and speeds in Canada compare well against other countries. Peter points out that this was a result of comparing to only 8 countries. And that another report puts Canada in about 33rd place for download speeds, and 65th place for upload speeds. His conclusion:

The bottom line is Canada can’t even try to aspire to an innovation-based economy without first making sure it has proper upload speeds. This hasn’t occurred yet to the CRTC, which is obviously too busy peddling its Kool-Aid vision of a country with wonderful broadband.

For those on Google+, take a look at the comments on a post by Jacob Glick on this article where the consensus is that upload speeds increasing matter in a world where we are using cloud computing, and posting photos and video.

European Patent Office says Amazon “one-click” too obvious to patent

OUT-LAW news, a publication of the Pinsent Masons law firm, reports that the European Patent Office has rejected the Amazon “one-click” patent application.   The subject is a one-click shopping cart to reduce the amount of input one has to make on subsequent orders.

The US courts narrowed the scope of Amazons’s original patent claims, but ultimately allowed the patent.  In Canada, the Federal court allowed the patent last fall – but is has been appealed.

I’m not a patent lawyer, so weighing in here with my thoughts might be dangerous, but IMHO, the European Patent Office has it right.

Thorough search averts lawsuit

For the London Free Press –  July 4, 2011 – Read this on Canoe

You have designed the perfect logo for your business. Before investing more time and money in using and promoting your new logo, you want to make sure you have the right to use this trademark for a long time and you’re not infringing someone else’s existing trademark.

You start by doing a search of existing registered trademarks in the database of trademark registrations on the Canadian Intellectual Property Office (CIPO) website.

The search doesn’t turn up any similar marks relating to the wares and services you provide, so you file a trademark application. A few months later a CIPO examiner approves your application. CIPO then publishes your application in the Trademarks Journal to allow the public an opportunity to oppose it.

Two months pass without a challenge to your application and the trademark is successfully registered.

You are now the first person to register that trademark in Canada for your wares and services. You now have exclusive Canada-wide rights to use this logo for the next 15 years. Or do you?

In a recent decision from the Supreme Court of Canada, the registered trademarks of a retirement company in Ottawa were invalidated because of the likelihood of confusion with similar unregistered trademarks of a company in Calgary that had used them before the Ottawa company.

The Trademarks Act prohibits the registration of a trademark that is confusing with a trademark previously used in Canada, regardless of whether that trademark has been registered.

However, some people thought the test for confusion took into account the geographic region of the operations associated with the trademark. For example, if a Calgary-based retirement residence did not operate in Ontario, its trademarks would not be considered confusing with trademarks of a retirement residence in Ottawa.

The Supreme Court in Masterpiece v Alvida determined the Trademarks Act affords Canada-wide rights even if a trademark is only used locally.

The test is based on the assumption both trademarks under consideration are used in the same area. It was irrelevant the operations of the companies were in different provinces.

The companies had similar trademarks in the same industry, so the trademarks were deemed confusing. Since the unregistered trademark was used prior to registration and use of the registered mark, the registration was expunged.

This demonstrates importance of conducting searches for unregistered trademarks before filing a trademark application. It may be difficult to locate every potentially confusing unregistered trademark throughout Canada, but search services are available that perform reasonably comprehensive searches.

The case also demonstrates the usefulness of registering trademarks as early as possible. In this case, if the Calgary company had registered its marks when it first used them, it would have prevented the Ottawa company from registering its mark, thus avoiding a costly and time-consuming court battle.

Registered Industrial Design applications increasing

A newsletter from CIPO (Canadian Intellectual Property Office) says that industrial design applications are increasing.  Registered industrial designs are not as well known as trade-marks, copyrights, or patents, but can give valuable protection to product designs in the right circumstances. 

A registered industrial design protects unique features of shape, configuration, pattern or ornament applied to an article. For example, automakers often obtain industrial design registrations for things like the shape of a grille or taillight. A furniture maker might apply for the design of a chair. 

More detail is in this article I wrote a while back.

CIPO’s newsletter states:

“… in fiscal year 2010-2011 the Industrial Design Office has had its second best year in history in terms of growth. Highlights of the year included 5 138 new applications received and conformed – only 36 applications short of our record year in 2007 and approximately 5% more than 2009’s results.

Internationally, industrial designs are on an upswing, increasingly being recognized as an accessible form of IP protection and as an integral part of an IP strategy.” 


Today is World Intellectual Property Day

Tuesday April 26 is World Intellectual Property DayWIPO (the World Intellectual Property Organization) says:  “WIPO’s member states initiated World IP Day in 2000 to raise public awareness about the role of IP in daily life, and to celebrate the contribution made by innovators and creators to the development of societies across the globe. World IP Day is celebrated annually on April 26, the date on which the Convention establishing WIPO entered into force in 1970.”

“This year’s World Intellectual Property Day on April 26 celebrates the role of design in the market-place, in society and in shaping the innovations of the future.”

Patent ruling signals new way of doing business

For the London Free Press – November 22, 2010

Read this on Canoe

Traditionally, they have been reserved for inventions that are tangible

The recent Federal Court of Canada decision in Inc v. the Attorney General of Canada held that a “business method” can be patented in Canada.

This essentially allows an idea, without an actual physical manifestation, to be patented if the right tests are met. The Federal Court in Amazon overturned the previous ruling by the Commissioner of Patents that rejected Amazon’s efforts to patent a business method.

Patents have been traditionally granted for tangible inventions. In other words, they can be held in your hand or touched. Business methods are an intangible process.

“Business method” patents (BMPs) are a class of patents covering new methods of conducting business. For example, in the Amazon decision, Amazon sought to patent single-click online ordering as a proprietary invention.

“One-click ordering” allows users to make online purchases with a single click of the mouse, the payment information having already being entered by the user. The result is that users do not need to enter billing and shipping information every time a purchase is made; the information is entered once and future purchases require only one click to complete the check-out.

Amazon obtained a U.S. patent for the 1-click method years ago.

According to patent agent Natalie Raffoul, the reasoning and final decision in Amazon follow closely that of the leading U.S. case, re Bilski. Ms. Raffoul pointed out similar to Amazon, the U.S. Supreme Court in re Bilski decided an abstract idea is not patentable; so the business method in question must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing.

Business method patents have been controversial in both Canada and the U.S. They aren’t typical in that they do not attach to a tangible item but instead to a more abstract idea or process. Detractors have used this to support the claim that they should not be allowable under patent law. Critics have also voiced concern about the implications to start-up businesses.

In Amazon, Justice Phelan held the appropriate test to identify a business method patent is the test set out in the Progressive Games Inc. v. Canada (Commissioner of Patents) decision: 1) there must be a practical application; 2) it must be a method of applying skill and knowledge and; 3) it must have a commercially useful result.

Justice Phelan decided Amazon’s single-click ordering met these criteria and was a tangible new business method, not simply a scheme or abstract idea, which was put into action through the use of cookies, computers, the Internet and the customer’s own action.

The Amazon decision signals a divergence from the old process in Canada as it is the first case to recognize business method patents are patentable. The case bears watching because the decision has been appealed and could be overturned.

Plethora of Pending IT Legislation

That’s the title of my Slaw post for today.  It reads as follows.

Those who practice in the IT area have a lot of potential new law to digest.  The Federal government has several bills in various stages that will affect many businesses and organizations, and all of us as consumers.  These bills have been mentioned on Slaw, but I thought it was worthwhile listing them all in one place. 

Bill C-28    Fighting Internet and Wireless Spam Act.  

This bill brings in several anti-spam measures.  While this is welcome by most people, the language has the possibility to affect how typical businesses communicate.  Things that we may not consider to be spam might get caught by the act.  Since the penalties are significant, we will have to take a close look at this before it is in force to understand what it means for a typical business or organization. 

Bill C-29     An Act to amend the Personal Information Protection and Electronic Documents Act

This would make several amendments to PIPEDA.  Most of the amendments were expected, and are welcome as they address issues that have arisen from the current legislation.  There are a couple of new parts that could use some clarity, though.  Language that attempts to clarify what “lawful authority” is that allows one to release information to law enforcement doesn’t really seem to clarify what the threshold of proof is, or what to ask for.  It also contains language that requires notification of breaches in certain circumstances to both the privacy commissioner and the affected individuals.  The language has threshold tests – which on the surface are not as clear as they might be.   If this language stays, it may take a privacy commissioner decision and/or court decision to clarify the threshold.  The best source for more information is David Fraser’s blog

Bill C-32     Copyright Modernization Act.

This is the latest of several attempts over the years to amend the Copyright Act.  Controversial elements include digital lock provisions that will allow publishers to trump user rights.  There has been a lot written about this, including a book entitled From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda written by several copyright experts. The best source for more information about the bill is Michael Geist’s blog.

Bill C-51     An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act aka Investigative Powers for the 21st Century Act. 

There also appears to be at least one companion bill, C-52.  This is the latest incarnation of what has been dubbed a “lawful access” bill.   The bill essentially tries to give law enforcement more access to electronic communications.    Critics refer to the bills as “awful access”, and point to the erosion of privacy and the costs ISP’s will need to spend.  They also question the practical effectiveness of the measures.   This bill is hot off the press, and I have not had time to look at it – but in general I fall into the “awful access” camp.  Expect more commentary on this from both Michael and David.

US bills introduced to wiretap the net, and arbitrarily shutdown alleged infringers

We get upset when governments outside of North America insist on being able to monitor internet based communications.   But we shouldn’t get too smug about it, as the same thing happens in North America.  See these posts that talk about a new attempt to legislate backdoor internet access in the US, why its a problem, and links to other commentary.  CircleID       Techdirt

The three strikes concept just won’t go away either.  Basically it allows or requires sites or internet access to be shut down based on unproven allegations they are used for infringement.  A new proposed US bill would do that.  See the CircleID link above for their take on that.

Mike Masnick of Techdirt puts that bill in perspective by saying that the same logic used by the proponents of the bill would have in the past banned Hollywood itself, the recording industry, radio, the DVR, and other ubiquitous things.

UPDATE: Also see the EFF take on the backdoor bill.