Not long ago, the only smart phone that people knew about was the BlackBerry. Now, it’s been recently reported that BlackBerry has fallen to #4, behind Windows, Android and Apple. What happened? Decentralization and resulting dilution.
BlackBerry was experiencing tremendous growth in the marketplace. However, rather than delivering a consistent message that leveraged off its tremendous name recognition, BlackBerry decentralized its product line, offering a host of models that appear to have cannibalized BlackBerry’s market share. To this day, it’s hard to know the differences between the Curve, Bold, Torch, Tour and Storm models.
Apple and Samsung, on the other hand, went on a marketing frenzy, bombarding consumers with more centralized messages around their iPhone and Galaxy products and reportedly spending ten times that of BlackBerry. Armed with a new CMO, BlackBerry appears to be on the mend, focusing on regaining brand recognition. As the weeks unfold, we will see more about the BlackBerry Q5 and BlackBerry Z10. The company is returning to the brand that put it on the map. The question is whether it can regain its lost ground.
What can be learned? If you have a strong brand, leverage it. Focus on what works and resist the temptation to diversify to the point of cannibalizing your own market share. We’ll see if BlackBerry can regain its position as #1.
My children often use my iPhone to ask Siri the most bizarre questions. No matter what the question, however, Siri always seems to have an immediate answer. Had I thought about it in any detail, I probably would have figured out that there was some form of back end data gathering/analysis being performed in order for this to have happened. Yet, I must confess that I had no idea that my Siri voice requests were being gathered, analyzed and more importantly, stored for any length of time.
Late last week, it was reported that Apple disclosed just how long it keeps this data- 2 years. Apple allegedly anonymizes the data by assigning random numbers to represent the user and associates the voice request files with that number. After 6 months, Apple allegedly disassociates the number from the voice file. The disassociated files are allegedly kept for up to another 18 months for “testing and product improvement purposes.” If Siri is turned off, the associated data is allegedly deleted.
I was so spellbound by the technology that I forgot to inquire about the related privacy issues. The ACLU is pushing for greater disclosure of Apple’s privacy practices on its Siri FAQ page. Meanwhile, hopefully Siri can keep a secret.
What happened at the Boston Marathon last week was horrific. And even though unfathomable, there are some people that will try to profit from this tragedy. As the FTC warns, refrain from giving cash donations to unknown sources and consider these simple rules provided by the FTC when solicited in person, online or on the phone:
- Ask for the name of the charity if contacted by phone and the telemarketer does not provide it promptly;
- Ask what percentage of your donation will support the cause described in the solicitation;
- Verify that the charity has authorized the solicitation;
- Do not provide any credit card or bank information until you have reviewed all information from the charity and made the decision to donate; and
- Ask for a receipt showing the amount of the contribution and stating that it is tax deductible.
Giving to those in need should be encouraged. Give from the heart, but be smart.
The FTC has limited resources. Knowing what it has focused on in the last year can give you a sense of the types of issues that might be more likely to trigger a FTC inquiry. As Chairwoman Ramirez recently explained, in 2012, the Agency brought actions in the following areas:
- Privacy, especially in the digital arena
- Data security failures, collecting personal information and children’s online privacy;
- Health care mergers and anti-competitive health care provider conduct;
- Standard setting and pharmaceutical pay-for-delay patent settlements;
- Health and safety claims;
- Business opportunity and “get rich quick” schemes;
- Tech support scams; and
- Marketing of healthier food choices to children and teens.
As can be seen, health care antitrust, privacy, health claims and marketing to children continue to be important areas of focus for the Commission. There is no reason to believe that this will change in 2013. If your company operates in any of these areas, it should proceed with caution.
Additionally, as consumers become bombarded with more online and mobile advertising, the Commission will continue to be concerned about marketing in this new media. Indeed, the Commission recently updated its .com Disclosures to include, among other things, examples of adequate disclosures in mobile contexts. An upcoming blog post will address some of the highlights from this guide.
Your company has just developed a new invention that it intends to unveil at your annual industry trade show. In advance of the show, your marketing department sends out a press release describing your new invention in detail and launches photos of your invention on your website. The problem is that your marketing department is not in sync with your intellectual property strategy and you never filed a patent application prior to these public disclosures.
There is a great demand for your product and now your CEO wants you to seek patent protection in the U.S. and China. The problem is China, like many other non-U.S. countries, is an “absolute novelty” country and as such, requires a patent application to be on file before the invention is first publicly disclosed. While certain countries, like the U.S., have a limited grace period, many do not. Thus, you should always make sure that your global patent strategy tracks your marketing efforts or you may forfeit your ability to seek foreign patent rights.
The America Invents Act significantly expanded the “Prior Use” defense under 35 U.S.C. § 273 to patent infringement. Prior thereto, the defense was limited to use against claims of business method patents. Now, a litigant may assert this affirmative defense if it commercially used, in good faith, a process, machine, manufacture, or composition of matter that is asserted to infringe the patent-at-issue.
While this sounds good on paper, there is a catch. If it is shown that a defendant failed to have a “reasonable” basis for asserting this defense, the “court shall find the case exceptional for the purpose of awarding attorneys’ fees under section 285.” 35 U.S.C. § 273(f)(emphasis added). The problem is that the Courts have failed to address what “reasonable” means. Thus, companies facing patent infringement claims must decide whether it’s worth the risk. If they don’t produce enough information to sustain the defense, they might have to pay the patentee’s attorneys’ fees- a remedy generally available only in instances of willful infringement.
Patently O has recently reported that there could be over 200 pending patent applications that have filing dates that pre-date June 8, 1995. See l. Why should you care? If these patent applications mature into patents, they will have a term of 17 years from issuance. As Patently O points out, they could be quite valuable because they could be directed at technology dating back over 15 years ago. Indeed, whole industries might have developed around such technology. Finding prior art to invalidate these patents could be difficult.
There’s no need to believe that the sky is falling. However, if you are licensing technology from someone else, it might be advisable to get strong, uncapped indemnification provisions in case one of these patents emerges.
We hear it all of the time. How is this illegal if everyone is doing it? As I tell my children, the “everyone else is doing it” defense rarely works. Sure, it eventually worked out for those of us old enough to remember the Betamax home videocassette recorder battle in which consumers came out on top. However, more recent scenarios have not worked out as well for the consumer. Those who illegally downloaded movies or songs can attest to this. Now, comes Pinterest. Copyright infringement or fair use? While the company seems to be taking steps to address its own liability, it remains to be seen what will happen to its users. Read a recent discussion of this issue. Investigate the issue for yourself and don’t rely on others’ use as your sole defense should you face a claim of copyright infringement.
Last week, the Federal Circuit, sitting en banc, gave a shot in the arm to patentees with regard to the “intervening rights” doctrine in its Marine Polymer Technologies, Inc. decision. The Court confirmed that “intervening rights” (which limits a patentee’s ability to recover for past damages) only apply when there are new or amended patent claims as a result of reexamination. Prior thereto, a three judge panel of the Fed Circuit held that the doctrine had been triggered by the patentee’s arguments made during reexamination even though no amendments had been made. In light of this decision, patentees will sleep easier, knowing that they can make arguments during reexamination without losing their claims for past damages.
Sometimes during the patent process, inventors will perform their own searches of non-patent literature (NPL). While they are just trying to advance their applications, they may have just incurred a large, unexpected cost.
Most inventors understand that they have a duty to provide all known, material, non-cumulative prior art to the USPTO during the patent process. In the past, inventors would merely provide copies of NPLs that they found in their own searches to their patent counsel, which, in turn, would disclose such information to the USPTO. Now, it is not that simple.
There is a wave of concern over the copying and use of such NPLs. Many firms have adopted policies requiring inventors to have licenses permitting the copying and distribution of such references before they will submit them to the USPTO. Indeed, just last week, several law firms were sued over this very issue. While the USPTO has taken the position that copies submitted to the USPTO fall within the ”fair use” exception to copyright infringement, it took no position with regard to copies made for clients or a firm’s internal use. Read a recent discussion of the issue.
So, inventors are left with a dilemma. If they conduct a search that inadvertently reveals 100 potentially relevant references, then they might be faced with being charged a license fee for each reference before this prior art may be submitted to the USPTO as part of the patent process. What’s the downside if they decide to save some money and don’t disclose these references? They could be charged with inequitable conduct and have their patent deemed unenforceable if it’s later determined that these references should have been disclosed to the USPTO.
Here’s the lesson. Until these lawsuits get cleared up, inventors should be weary of conducting off-the-cuff searches. If they do, they should be prepared for the additional cost of potential licensing fees.