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By: James Kachmar

Frequent readers of this column will recall our discussions concerning the defense of laches in copyright infringement actions. Last month, the Ninth Circuit revisited this issue and considered the willful infringement exception to the laches defense in the case, Evergreen Safety Council v. RSA Network, Inc.

Evergreen and RSA are both involved in providing training for pilot escort vehicles (these vehicles that help escort oversized vehicles). Evergreen and RSA publish training manuals in connection with state pilot vehicle training programs.Continue Reading Evergreen – Copyright Infringement, Laches and the Willful Infringement Exception

By: Nathan Geronimo

I have written several articles about litigants running into trouble when their testimony is contradicted by their own postings on social media websites.  A recent case from Sacramento illustrates a unique twist on the interplay between social media and court proceedings: the effect of juror posts on a defendant’s right to a fair trial.

Juror Number One v. Superior Court involved a juror posting comments on his Facebook wall about evidence presented at trial while the trial was in progress.  Following the trial and conviction on assault charges, the Court became aware of the Facebook activity, and held a subsequent juror misconduct hearing based on Juror One’s trial posts.  Juror One admitted posting comments on Facebook during the trial, but denied that the posts were about the trial or any evidence presented.  For example, Juror One admitted to posting that he was so bored one day during trial that he almost fell asleep.  He also invited a female juror to be his Facebook “friend.”  At the conclusion of the misconduct hearing, the Court was satisfied that there had been clear misconduct, but had further questions about the degree of misconduct, and whether it had been prejudicial to the trial.  Counsel for the real party in interest then issued a subpoena to Juror One for all postings by Juror One during the trial, including all emails and other electronic communications.  Juror One moved to quash the subpoena as overbroad.  The Court agreed that the subpoena was overbroad, but issued an order requiring Juror One to turn over all of his Facebook postings during trial to the Court for in camera review.Continue Reading Social Media Impacts: Jury Trials

By: Audrey A. Millemann

In Akamai Technologies, Inc. v. Limelight Networks, Inc., 692 F.3d 1301 (Fed. Cir. 2012), an en banc Federal Circuit Court of Appeals was divided over the issue of “divided infringement” in the context of inducing infringement. 

A party is liable for inducing infringement if it instructs or causes another party to infringe a patent.  Thus, there is an act of direct infringement that results from the inducement.  “Divided infringement” of a method patents exists when multiple parties perform different steps of the claimed method.  Continue Reading A Court Divided Over Divided Infringement

By: Lisa Y. Wang

The internet is about to change dramatically. Since Al Gore “invented” the world wide web, users have been used to using a limited number of top-level domains (“TLD”). A top level domain is the end portion of a web address (e.g. .com, .net, .org, .biz, and .gov). A second level domain name consists of the words in between www. and the TLD (e.g. apple in www.apple.com). Currently, there are 22 top level domains (such as .org, .edu, and, .com) and over 200 country based domains (such as .us, .de, or .eu). But, by this time next year there may over a thousand in multiple categories such as place domains (e.g. .nyc, .taipei), keyword domains (e.g. .hotel, .watch, .apparel) or even brand domains (e.g. .apple, .gap, .walmart). It is important to protect your business from potential consumer confusion and infringement when these new TLDs go live next year.

The Internet Corporation for Assigned Names and Numbers (“ICANN”), a non-profit corporation, manages most TLDs, internet protocol addresses, and basically anything that involves the URL itself. Last year, ICANN approved the creation of new TLDs called generic top-level domains (“gTLD”) to increase competition and choice in the world wide web. Any legal entity may apply to create and manage a gTLD.Continue Reading The Upcoming Internet Shift

By: James Kachmar

The Ninth Circuit recently revisited the “Work Made for Hire” Doctrine in connection with a copyright infringement case in US Auto Parts Network, Inc. v. Parts Geek, LLC.  The Ninth Circuit concluded that an employer can be the owner of copyrighted material when it is prepared by an employee in the course of his or her employment under the work made for hire doctrine.

The case arose out of an online auto part business, Partsbin, that was created in the mid-1990s.  Partsbin entered into a licensing agreement with a computer programmer, Lucas Thomason, who had prepared an order processing software program called Manager while self-employed.  Thomason gave Partsbin a “perpetual license to use” the Manager software.  Approximately a year later, Partsbin hired Thomason as its “director of eServices,” where he continued to make modifications and enhancements to the Manager software to fit Partsbin’s business changes.  Over the next several years Thomason, as a Partsbin employee, developed at least four more versions of the Manager software.  Partsbin became an internet success story and in 2006 was acquired by US Auto Parts Network (“USAP”).  The acquisition included its intellectual property.  After the acquisition USAP, hired many of Partsbin’s key employees, including Thomason.  Thomason’s primary role was to “manage” the Manager software by modifying and enhancing it to accommodate the needs of Partsbin.  His efforts created two additional versions of the Manager software.Continue Reading Copyrights and the Work for Hire Doctrine