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Phosita IP Blog

RUMORS OF THE ANTICIPATED XBOX 720 INCORPORATING A DVR SYSTEM COME IN THE MIDST OF A SWIRL OF LITIGATION INVOLVING DIGITAL VIDEO RECORDING TECHNOLOGY.

As reported by Gamezone on January 4, a new rumor has surfaced about the development of the next generation Xbox, or Xbox 720 – a clever twist on the current Xbox 360 title, due to a patent recently granted to Microsoft. 

United States Patent No. 8,083,593 was issued on December 27, 2011, and describes the implementation of a DVR system allowing for the recording of media, including television programs. The following abstract briefly describes the DVR application as implemented in the new system:

                “An integrated gaming and media experience is disclosed, including recording of content on a gaming console. A digital video recorder (DVR) application running alongside a television client component allows users to record media content on the gaming console. The DVR application also integrates itself with the console menu. Once integrated, users can record media content while playing games. Alternatively, users can record content when the gaming console is turned off. The recorded content can include television programming, gaming experience (whether local or online), music, DVDs, and so on. When in the recording state, users can also switch between various other media modes, whether gaming, television, and so on.”

Although the new Xbox 720 sounds pretty cool, this patent gives rise to yet another issue in the current controversy between Microsoft and TiVo regarding digital video recorder (DVR) technology. As you may have heard, Microsoft filed a lawsuit back in January 2011 and in subsequent motions alleged that TiVo violated seven of Microsoft’s patents concerning digital video recording.  There is currently, however, a stay on the case due to the court’s having granted TiVo’s request for reexamination of the allegedly infringing patents. See Microsoft Corp. v. Tivo Inc., 2011 U.S. Dist. LEXIS 52619 (N.D. Cal., May 6, 2011).

What really makes this interesting is that AT&T (one of Microsoft’s major customers) was sued in 2009 for infringing TiVo’s DVR patents 6,233,389, 7,493,015, and 7,529,465 which ultimately resulted in a settlement on January 3, 2012.  Forbes reports that TiVo will receive approximately $215 million from AT&T with $51 million up front and recurring quarterly payments until 2018 to cover the rest. To add to the controversy, it has been suggested that Microsoft filed its suit in January 2011 in response to TiVo’s suit against AT&T because AT&T’s technology runs Microsoft’s Mediaroom client software. Thus, it raises the question that since AT&T settled and AT&T’s technology uses Microsoft’s technology, is it still feasible that Microsoft could win its suit against TiVo and be able to defend against TiVo’s counterclaim of patent infringement? Although I have not researched in depth the patents at issue in these cases, the settlement by AT&T, if anything, might shed some light on how Microsoft’s case will unfold once reexamination is complete.
Now back to the important stuff: video games. In light of all this litigation surrounding DVR technology, it seems like the video game community might have to wait even longer than the 2013-2015 projected release date of the Xbox 720 so that Microsoft can incorporate the rumored DVR feature without the risk of impending litigation. If Microsoft ends up winning the suit against TiVo before then, however, I, for one, hope that Microsoft passes some of the winnings on to the consumer in the form of discounted prices for the new system.

 Image by Fanchile on Flickr Creative Commons- some rights reserved.

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DC On Film Row

About DC on Film Row

DC on Film Row is a free event space open to everyone in our community.

We like to say that the space is a “home for creatives and innovators, home builders and the homeless, celebrators and the celebrated” so people understand that we are inclusive and want everyone from throughout our community using our space.

Our goal is to celebrate the incredible diversity of creativity, innovation, and passion within Oklahoma City and to provide a venue—free of charge—to those groups and individuals working to bind us all together and make our home a cooler and better place. No strings attached—no extensive rules to follow. We simply ask that all of our neighbors be honored and that all viewpoints be respected. Our criteria for use is simple: If the event, group, or meeting is something which strengthens our community and brings us all together, the space is available for use.

The space has hosted everything from charitable fundraisers to an underground nightclub party to celebrate Canterbury Choral Society’s 45th anniversary season. We host dinners for the OKC homeless population most Monday evenings where upwards of 250 people are served—we provide the space and soft drinks and a local church provides the food. We’ve hosted university planning retreats and monthly local rock concerts.

Every Wednesday, we open up the courtyard for lunch, invite a local food truck to set up outside our gates, and welcome our downtown neighbors into the space for a bit of socialization.

Our never-ending soda fountain seems to be the biggest hit with some of our neighbors while others spend time playing pool or simply chatting about what is happening on the weekend.

For October we turn the space into a haunted house and invite the neighborhood children to come out and trick-or-treat.

Got an idea for how to use the space? Just ask us – we’re almost certain to say yes!

Dunlap Codding Shareholder Emily Campbell Quoted in Law.Com

Dunlap Codding Shareholder Emily Campbell Quoted in Law.Com

Dunlap Codding Shareholder Emily Campbell was quoted in a Law.com article by Megan Spicer, published on July 29, 2016.  The article, “Copyright Counsel Eager for Clarity on Fair Use for Viral Videos,”  covered the fair use of viral videos, such as the cell phone video from the scene of the recent shooting in Dallas which claimed the lives of five police officers.  

As Spicer noted, there are no cases dealing with the monetization of viral videos that depict serious news.   Emily Campbell, who heads the trademark and copyright group at Dunlap Codding asked, “Will someone challenge these groups who are monetizing viral videos?”  She said that companies such as ViralHog [one of the startup companies that acquire video and capitalize on its popularity] are taking advantage of the uncertainty.

Emily Campbell Quoted in Inside Counsel

Dunlap Codding Shareholder Emily Campbell was quoted in Inside Counsel in an article by Amanda Ciccatelli published on July 26, 2016.  The article, “Melania Trump vs. Michelle Obama:  Does copyright law cover public speeches,” commented on the reports that “Melania Trump’s speech was very similar to the speech previously given by Michelle Obama at the Democratic National Convention in 2008.”  

Ciccatelli wrote, ” Does copyright law actually protect public speeches? The answer according to Campbell is yes.  Copyright law serves to protect various types of creative works, including speeches.”  

“The nuance here, though, is that copyrights protect works only when they are ‘fixed in a tangible medium,” [Campbell] explained.  “So what’s really protected by copyright is not the act of giving the speech but the video recording, sound recording, or antecedent written text of the speech.” 

Campbell also said, “Ultimately, the key questions to be answered are whether Melania Trump used enough of the speech to constitute infringement.”  She concluded by saying, “Be inspired by the works of others, but don’t copy them.  Don’t use the work of another—in whole or in part—without obtaining permission first.” 

Americans for the Arts Announces Honorees for BCA 10: Best Businesses Partnering with the Arts in America

Oklahoma City, Oklahoma—Americans for the Arts, the nation’s leading nonprofit organization for advancing the arts and arts education, announced on Tuesday that Dunlap Codding, an Intellectual Property boutique law firm,has been named a BCA 10: Best Businesses Partnering with the Arts in America honoree for 2016.  

Presented every year by the Business Committee for the Arts (BCA), a division of Americans for the Arts, the BCA 10 awards honor 10 U.S. companies for their exceptional commitment to the arts through grants, local partnerships, volunteer programs, matching gifts, sponsorships, and board membership.  

In 2015 alone, Dunlap Codding opened its doors to host weekly events involving the creativity and arts communities: Theatre opening parties and board meetings, jazz improvisation nights, The Mix Concert Series, underground theatre, video screenings, weaving classes, storytelling festivals, and more.  The highlight of the year was the firm’s sponsorship of the Glitter Ball, a gala benefiting deadCENTER Film Festival, Sunbeam Family Services, and OKC Girls Art School.  The firm has also sponsored “Premiere on Film Row”—a monthly Art Walk/Street Festival.  In addition to offering the use of the space for free, thousands of firm volunteer hours have been donated and the firm has contributed many thousands of dollars to hosting, supporting, and funding these events.   

The BCA 10 Awards will be presented by Americans for the Arts on October 5, 2016, at a black-tie gala at the Central Park Boathouse in New York City. The 2016 honorees are:  

Austin Energy (Austin, TX)
Badger Meter (Milwaukee, WI)
CopperPoint Insurance Companies (Phoenix, AZ)
Dealer.com (Burlington, VT)
Dogfish Head Craft Brewery (Milton, DE)
Dunlap Codding (Oklahoma City, OK)
Johnson & Johnson (New Brunswick, NJ)
M Powered Strategies, Inc. (Washington, DC)
Northern Trust (Chicago, IL)
Procter & Gamble (Cincinnati, OH) 

Dunlap Codding Shareholder Douglas J. Sorocco said, “Art and creativity enrich the soul and provide a means for community expression. By opening our doors to artists and creators, we help to foster a spirit of generosity, inclusiveness, empathy, and volunteerism. As we become more intertwined into this community, our own capacity for compassion and generosity is magnified.”

“We are grateful to honor these businesses for their exceptional involvement in ensuring that the arts thrive in their communities,” said Robert L. Lynch, president and CEO of Americans for the Arts. “These businesses provide the arts with significant financial and in-kind support, and they incorporate meaningful arts-related programs into their employee, customer, and community relations activities. They enrich the lives of millions of Americans and truly set a standard for other businesses to follow.”  

For information regarding BCA 10, please contact Emily Peck, Vice President of Private Sector Initiatives at (202) 371-2830 or via e-mail at epeck@artsusa.org. 

Dunlap Codding P.C., with offices in Austin, Chicago, Oklahoma City, and Washington, D.C., serves sophisticated international, national, and regional clients. Established in 1957 as Oklahoma’s original intellectual property firm, Dunlap Codding remains the state’s largest and most versatile IP boutique law firm. 

Americans for the Arts is the leading nonprofit organization for advancing the arts and arts education in America. With offices in Washington, D.C. and New York City, it has a record of more than 50 years of service. Americans for the Arts is dedicated to representing and serving local communities and creating opportunities for every American to participate in and appreciate all forms of the arts. Additional information is available at AmericansForTheArts.org.

Founded in 1967 by David Rockefeller, the Business Committee for the Arts (BCA), a division of Americans for the Arts, encourages, inspires, and stimulates businesses to support the arts in the workplace, in education, and in the community. The Business Committee for the Arts merged with Americans for the Arts in 2008.

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Media Contact:
Douglas J. Sorocco
405-607-8600
dsorocco@dunlapcodding.com

Jordan Sigale, Dunlap Codding Director, Quoted in USA Today re Oracle, Google Court Clash

“Two of tech’s biggest behemoths are slugging it out in court,” reported Jon Swartz in an article in USA Today on May 11, 2016. After noting that billions of dollars of damages are at stake in this six-year software copyright case, Swartz quoted Dunlap Codding’s Jordan Sigale, an intellectual property lawyer and computer engineer.  “There are two issues.  Did Google practice fair use, and if Oracle was [infringed], how badly was it [damaged] financially?”  Sigale went on to say, “The onus is on Google to prove it transformed its use of Java into something more for use in Android.”

Julie Langdon, Dunlap Codding Senior Associate, Quoted in BloombergBNA Patent, Trademark & Copyright Journal

On May 3, 2016, BloombergBNA quoted Julie Langdon in “Supreme Court Will Review SCA Hygiene On Bar Against Patent Case Filing Delays.”  The article noted that “The U.S. Supreme Court agreed May 2 to review whether a patent owner can recover damages if it waits more than six years after becoming aware of infringement to file a complaint (SCA Hygiene Prods. AB v. First Quality Baby Prods. LLC, U.S., No. 15-927, review granted 5/2/16).”

The “laches” doctrine blocks a lawsuit when a plaintiff has waited too long to bring a lawsuit.  One issue raised in the instant case, is the difference between the language in the Patent Act, 35 U.S.C.  § 286, and the language in the Copyright Act, 17 U.S.C. § 507(b), and whether a ruling by the Supreme Court relating to the applicability of laches under the Copyright Act (or lack thereof) applies similarly to the Patent Act. 

Langdon said, “The impact of a stronger (or weaker) laches defense will fall most heavily on non-practicing entities who primarily assert technology-related patents….And those patents [that are at least six years old and never asserted in an infringement action] are often being asserted by NPEs, or other entities that sit on their rights for years while others in that tech area develop potentially infringing products/methods.”

Dunlap Codding Director Jordan Sigale Quoted in Law360 re On-Sale Bar Threat to Pharma Patents

On May 4, 2016, Law360 published an article by Ryan Davis, “Fed. Circ. Could Ease On-Sale Bar Threat to Pharma Patents.”  The article noted that the Federal Circuit will hear arguments Thursday in a patent case regarding the blood-thinning drug Angiomax.  “The on-sale bar holds that an invention cannot be patented if it has been on sale for a year prior to the patent filing.  The court decided last year to reconsider when the bar applies after a panel used it to invalidate two of The Medicines Co.’s patents on Angiomax in a dispute with generics maker Hospira Inc.  The Medicines Co. did not sell Angiomax to the public before filing for a patent, but instead paid a supplier to make experimental batches while the drug was being developed.”

The article notes that Dunlap Codding Director Jordan Sigale opined that in recent years, companies  have become less integrated and more have begun outsourcing aspects of the production process to third parties.  This case will have widespread importance.  The panel’s holding that an outsourcing arrangement can render patents invalid under the on-sale bar, “makes it really super tough for companies that can’t make large quantities of things themselves, and there are a lot of companies like that….[if the ruling stands] it’s going to stunt the further  development of outsourcing culture….It bothers me because the whole idea of the on-sale bar as I understood it was that we don’t want companies to exploit their invention for a year of sales before they get a patent.  But that’s not what’s going on here….There’s a distinction in my mind between working with a third party to make sure the product meets FDA requirements and going out and selling to the public.”

Dunlap Codding Senior Associate Julie Langdon Quoted in Law360

Dunlap Codding Senior Associate Julie Langdon was quoted in Law360 on April 4 in Jacob Fischler’s article, “What to Do After You’ve Screwed Up a Brief.”  Langdon had great advice: 

Follow the Local Rules:  “The first step is making sure you understand the rules of the court and how to go about fixing the brief.”  She added that judges are likely to be sympathetic to a genuine mistake and it wastes their time to consider improper filings. 

Keep Corrections Focused:  “You definitely should not be filing a corrected brief to change your argument in any way or to change the facts you’ve presented in any way….It should really, truly only be used to fix misrepresentations, inaccuracies.”

DC Attorneys Draft Amicus Brief in Sequenom v. Ariosa Diagnostics before U.S. Supreme Court

Dunlap Codding’s own Jordan Sigale and Julie Langdon co-authored an amicus brief on behalf of the Federal Circuit Bar Association filed on April 20, 2016 in Sequenom v. Ariosa Diagnostics at the U.S. Supreme Court. The brief (prepared with Frank Angileri of Brooks Kushman PC) urges the high court to take the case for next term to refine the current framework for assessing the scope of patent eligible subject matter under 35 U.S.C. §101 in the context of Sequenom’s invalidated medical diagnostic patent claims. Read the petition here.

Dunlap Codding Litigator Joe Titterington Article on Forum Shopping Published in inside Counsel

Joseph P. Titterington has authored an article discussing the potential end of forum shopped, published in Inside Counsel on April 13.  Joe wrote, “Few things gladden the heart of a patent litigator more than to enter into a contingency fee agreement with a patent owner whose patent has been infringed by a Fortune 500 company that does business throughout the United States. This is especially true if at least a single act of infringement has occurred within the geographic boundaries of the Eastern District of Texas.” 

The article discusses a case pending before the U.S. Court of Appeals for the Federal Circuit which may level the playing field.

Michael Schade Returns to Dunlap Codding as Senior Counsel

OKLAHOMA CITY, OKLAHOMA—April 5, 2016—Dunlap Codding is pleased to announce that Michael A. Schade has returned to the firm as Senior Counsel and Biotechnology Practice Group Leader.  His practice includes all areas of intellectual property law including patent, trademark, copyright, technology, and e-commerce and assists clients with intellectual property matters requiring litigation, licensing, technology counseling and complex transactions.  Nicholas D. Rouse, Dunlap Codding’s Managing Shareholder, said, “We are delighted that Michael has chosen to rejoin us.  His skills and the experience he brings from his in-house position at the University of Oklahoma will enhance our ability to serve clients.” 

Prior to his return, Schade had served for several years as the Senior Director of Intellectual Property and Staff Attorney at the University of Oklahoma.  In that role, he was responsible for the oversight and management of the University’s patent portfolio in order to maximize the economic impact of such assets to increase revenue for the University and the State of Oklahoma.  He also provided substantive intellectual property input to the State of Oklahoma’s federal legislators regarding the impact of federal patent legislation. 

He is registered to practice before the United States Patent and Trademark Office. He particularly enjoys working with clients to complete the process of acquiring and/or commercializing intellectual property assets as well as portfolio management, licensing and transactional matters.

Schade’s scientific background has focused on all areas of biotechnology and life sciences (including molecular biology, cell biology, glycobiology, biochemistry, developmental biology, immunology, microbiology, virology, and genetics; pharmaceutical compositions; molecular diagnostics and techniques; medical devices and equipment) as well as chemistry and chemical engineering. He has significant experience in providing strategic and tactical intellectual property counsel to individual clients, universities, large pharmaceutical and manufacturing companies, and start-up biotechnology companies. 

He is currently an Adjunct Professor and Lecturer of Law at the University of Oklahoma College of Law. Schade received his J.D. degree and his B.S. in Biochemistry, magna cum laude, from that same institution. 

Dunlap Codding P.C., with offices in Austin, Chicago, Oklahoma City, and Washington, D.C., serves sophisticated international, national, and regional clients. Established in 1957 as Oklahoma’s original intellectual property firm, Dunlap Codding remains the state’s largest and most versatile IP boutique law firm.  

Dunlap Codding is a member of Primerus, an International Society of Law Firms.