Patent-related litigation made up more than half of all lawsuits filed in America last year, a forty percent increase from three years before. With so-called patent troll lawsuits on the rise in a big way, I thought it’d be a good time to highlight the interesting, funny, and little-known side of American patent, trademark, and copyright law.
A Note on Patents, Trademarks, and Copyrights
I’ve heard people misuse these three words for too long, so I thought I’d clear it up. Patents, trademarks, and copyrights are three distinct legal tools used to claim ownership in different ways. They’re also handled by different government agencies and require different methods to claim them.
- Patents are limited-duration rights related to an invention. The US Patent and Trademark Office distributes these rights in exchange for public display of the invention.
- Copyrights are designed to protect “works of authorship,” generally referring to works of literature, music, and art that have been “tangibly expressed.” The US Copyright Office handles the distribution of this particular right.
- Trademarks are a bit more complicated – I’ll share with you the definition I found at the US Patent and Trade Mark Office – “a trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.” Other forms of mark exist – a service mark is any “… word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods.” Registering a trademark gives you legal ownership and the sole right to use the mark nationwide.
More on these differences can be found in our article, Trademarks, Copyrights and Patents - What's the Difference?
American patent, trademark, and copyright law is a dense and complex blend of codes and traditions that go back hundreds of years. The following twelve cases are among the most instrumental in developing our modern practice of determining ownership.
- The US Patent Act of 1790 - the first-ever patent statute enacted by the US government.
- O'Reilly vs. Morse, 1853 - finds that an abstract idea cannot be patented beyond a specific use of that idea.
- Gorham Company vs. White, 1871 - produced the basis of tests for design patent infringement.
- Schillinger vs. United States, 1894 - as a result of this case, patent infringement lawsuits cannot be brought against the federal government.
- The Incandescant Lamp Patent Case, 1895 - used to justify the invalidation of vague patents.
- Graver Tank & Manufacturing Co. v. Linde Air Products Co., 1950 - introduced the doctrine of equivalents, used in common law around the world.
- Aro Manufacturing Co. v. Convertible Top Replacement Co., 1961 - a pivotal case in In which the Supreme Court redefined the distinction between “repair” and “reconstruction” of a patented item.
- Diamond v. Chakrabarty, 1980 - was the first case to determine that a man-made living organism is a protectable manufactured good.
- Phillips vs. AWH, 2005 - A reference case now commonly used to decide how to interpret language in a patent.
- KSR vs. Teleflex, 2007 - Another reference case, used now in patent cases where the “obviousness” of a proposed invention is in question.
- Bowman vs. Monsanto, 2012 - A modern case reaffirming the old idea that copying a patented material and re-producing it is infringement, in this case even when the material is a seed produced by a plant grown from a patented seed.
- Alice Corp. v. CLS Bank International, 2014 - An important eligibility case in which a certain software product was found to be “too abstract” to be patentable.
Copyright cases in the music industry are big news, in part because of hero-worship, in part because nostalgia for the past makes us angry when a new artist rips off an old beloved tune. See how many of these famous music copyright infringement cases you remember.
- Robin Thicke’s 2013 hit “Blurred Lines” was found to infringe on a Marvin Gaye copyright.
- George Harrison was forced to pay more than $500,000 in a copyright case involving “My Sweet Lord.”
- Michael Bolton was fined nearly $1 million for violating an Isley Brothers copyright.
- Two recording giants, Queen and David Bowie, take on upstart Vanilla Ice.
- John Fogerty gets sued for ripping off … John Fogerty.
- The Turtles take on SiriusXM over pre-1972 records.
- Tom Petty was given songwriting credit for a tune he had nothing to do with, and you’ll be glad he was.
- Avril Lavgine settled out of court after accusations of plagiarism. She claims she’d “never heard” the other song before in her life.
- Ray Parker, Jr. also settled out of court, this time for plagiarizing Huey Lewis & the News while writing the Ghostbusters theme song.
- John Lennon was forced to record three Chuck Berry songs to settle a copyright suit against him.
- Radiohead was forced to share credit for their smash hit “Creep” due to plagiarism questions.
- Singer Lady Gaga is very protective of her brand, as the creator of Baby Gaga ice cream found out.
Though we love to laugh at stories like these, they involve serious matters of ownership law. Read the cases below (in full this time, not just for the pictures) and decide for yourself whether the applicant has a legitimate argument. You may be surprised at how many of these are based on valid claims.
- Nicole “Snooki” Polizzi attempts to trademark her nickname.
- The New England Patriots attempt to trademark “19-0,” fail, lose the 19th game anyway.
- Paris Hilton successfully sues Hallmark for infringing on her “That’s hot” trademark.
- Sarah Palin’s attempt to trademark her name fails (temporarily) because she forgot to sign her name.
- Twitter loses ownership of trademark on the word “tweet” to a subsidiary.
- Boise State University owns the exclusive right to use blue turf on a football field.
- Harley Davidson attempted to trademark the sound of a Harley’s engine revving.
- McDonald’s fails in an attempt to shut down a Malaysian restaurant called McCurry.
- Facebook owns the trademark for the word “face.”
- Donald Trump’s failed attempt to trademark his catch phrase: “You’re fired!”
- Taylor Swift has applied for a wide range of lyrical trademarks, including the phrase “this sick beat.”
- Jay-Z and Beyonce are trying to win the right to trademark their baby’s name.
- The band LMFAO wants the US Patent Office to know that their name isn’t dirty, but is patentable.
High tech businesses present special problems for trademark and patent offices. Not only is there a high amount of overlap between development across all markets, but often the item up for ownership is too abstract or complex for laypeople to understand. See how this has affected patent law in the following nine examples.
- The long and complex story of Amazon’s one-click patent.
- Google’s fight for the right to sell other company’s marks as keywords.
- The Recording Industry Association of America shuts down Napster.
- Apple is forced to pay more than $500 million in a patent dispute over iTunes software.
- Cisco Systems lost a major infringement case on the steps of the Supreme Court.
- Nintendo paid a fine of $30 million for allegedly stealing crucial pieces of its 3D tech.
- As I’m writing this list, Microsoft and Google are duking it out over a potentially serious patent issue.
- The Supreme Court is consistently ruling against “patent trolls,” the scourge of the tech industry.
- Disney faces patent infringement lawsuit over Magic Band technology.
“Good writers borrow, great writers steal.” I don’t know who said that, but I just stole it. If you love books, you’ll love these stories of literary intrigue and backstabbing.
- The author of The Da Vinci Code was accused of copyright infringement for “non-literal” copying.
- Harper Lee had to sue her agent to retain the rights to the classic To Kill a Mockingbird.
- Kathryn Stockett, author of The Help, was sued unsuccessfully by her brother’s maid for allegedly stealing details of the maid’s real life to create the book’s main character.
- Oprah Winfrey beat a $100 million claim against her made by a man who says she plagiarized lines from his book on her talk show.
- Random House settled a class action lawsuit on behalf of readers of James Frey’s A Million Little Pieces after it was discovered he’d made up most of the supposed biography.
- Famous recluse JD Salinger sued to stop the North American publication of an unauthorized sequel to his Catcher in the Rye.
- When a fan planned to publish a Harry Potter lexicon, author J.K. Rowling sued for copyright infringement and won.
- In the days before proper copyright lawsuits, the great scientist Isaac Newton was involved in a lifelong struggle with his colleague Gottfried Leibniz over the authorship of a book.
Some of the examples below are sad, some are just plain funny. If you need a break from all the serious legal stuff we’ve been looking at, check out these crazy claims and defenses for incidents of trademark abuse.
- Both Monster Cable and Hansen Beverage think they should own the rights to the word “monster.”
- T-Mobile seeks (and wins) action against anyone who dares use the color magenta.
- KFC tried to claim ownership of the phrase “Family Feast.”
- Game design firm Edge owns every conceivable use of the word “edge” in video game titles.
- Artist John T. Unger very nearly lost the right to sell his own art.
- Composer John Cage’s publisher owns the copyright to silence. (Not really.)
- Entertainer Jay Z is being sued over his use of a hand gesture.
- Bill Cosby threatened to sue the operators of CosbySweaters.com and successfully forced them to change their URL.
- John Waters took on Nickelodeon in a truly smelly case over a children’s cartoon.
- Clint Eastwood took on a tiny furniture company to protect his global brand and name recognition.
- A woman accused of impersonating Miss Ukraine is now suing recording artist Carly Rae Jepsen for ripping off her song “Hunky Santa,” about falling in love with Santa Claus.
Though it appears the US Supreme Court is finally stepping in to put an end to the most aggregious patent troll cases, infringement issues have always been and will continue to be an issue in the fields of science, business, industry, and the arts. Here are some cases currently in the courts that could end up making big changes to the law.
- B&B Hardware Inc. v. Hargis Industries Inc. et al. - the first trademark case being heard by the Supreme Court in over a decade.
- Hana Financial Inc. v. Hana Bank - a major intellectual property case related to the obscure "tacking" doctrine.
- Converse (multiple lawsuits against multiple companies) - Nike-owned Converse is suing at least a dozen entities for allegedly copying their sneaker designs.
- Google Inc. v. Oracle America Inc. - the possible end to a long and public battle over copyrights.
- The Authors Guild et al. v. Google Inc.- an appellate court will hear what could be the most important ruling of the year regarding copyright law.
- McRO Inc. v. Index Digital Media Inc. - covering the legitimacy of patent eligibility for technical innovations.