A Legal Blog by Aaron | Sanders, PLLC

Tinkering, Vision, Business and Patents: What the Tangled History of Windsurfing Can Tell Us About Innovation

A Meditation on Innovation on the Occasion of the Death of S. Newman Darby, Tinkerer, Hobbyist & Inventor

If you enjoy windsurfing, you might raise one to S. Newman Darby, who essentially invented it and who passed away last month. For a long time, not very many people knew this.

He grew up around Wilkes-Barre, Pennsylvania. Though he clearly had a mechanical gift, he was content to run the sign-painting business his father had started, and to tinker on the side. He particularly enjoyed boating on the Susquehanna and on nearby lakes. But he found sailing fussy, and steering by rudder unsatisfying. How much better it would be to steer by guiding the sails themselves and leaning into the wind. It was 1964.

He started by attaching a sail directly to a board. That worked, but it was clumsy and limited. You couldn’t turn very well, and you couldn’t go into the wind. He tried again, this time attaching the sale to the board with a short length of nylon rope, effectively creating a universal joint. This worked a treat, and in a short time, he taught himself how to “sailboard.” You stood on a rectangular board, about the size of an…

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It Happens Even to Fancy Companies: Downstream Intellectual Property Liability

Don’t Ignore it; Manage it.

Let’s say you’re a retailer. You buy stuff from a reputable manufacturer or middleman and turn around the sell it to the general public. You’re pretty safe from most intellectual-property concerns, right? If what you’re selling turns out to be counterfeit, that’s not your problem, right? You did all you could to avoid counterfeits, mostly by making sure your sellers are reputable. Besides, you didn’t do anything wrong—whoever made the counterfeit did. The same thing goes for patent infringement—not your fault, right?

It might not be your fault, but it is, unfortunately, still your responsibility, as a recent case involving Fossil and Macy’s demonstrates. Intellectual property law cares not (much) about morality and “fault,” but can and will impose liability on parties we’d otherwise think of as blameless. As a business owner or manager, all you can do is take sensible steps to reduce your company’s exposure.

What Is Downstream Liability?

Welcome to the horrible world of “downstream liability.” Unfortunately, it is an infringement of trademark and patent rights to sell infringing items; and it’s an infringement of copyright to “distribute” copyrighted materials. Patent, copyright and trademark laws don’t care very much about “fault.” If someone up your…

Hmm, but is it genuine? Better check the clasp. Photo by Ben Schumin, licensed under Creative Commons Attribution-Share Alike 2.5 Generic license.

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Patent Trolls-A Primer (Part 2)

Why NPEs Are OMG!

Last time, I explained what patent “trolls”—more politely known as a non-practicing entities or “NPEs”—are and why their business model is such a good one. Mostly they benefit from asymmetrical warfare: a defendant must spend much more money, time and other resources than NPEs, to say nothing of potential liability. Also, the types of patents that NPEs like—broad patents in popular fields with early priority dates—are undervalued and easy to pick up on the cheap. All you need are some good patents and a law firm experienced in enforcing patents willing to take the case on a contingency, and what’s not to like?

Since my main goal is not to condemn (or, for that matter, praise) NPEs, but to explain how got to be where they are, I’m discussing ten patent rules and truisms that make NPEs lucrative. Last time, I discussed three of them: (1) you don’t need to practice the patent to enforce it; (2) you can buy and sell patents like property; and (3) once issued, patents are difficult to invalidate. This time, I’ll discuss the other seven and provide some thoughts about reform (assuming you think reform is a good idea).

Well-timed injunctions

It used…

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Patent Trolls: A Primer (Part 1)

It’s More Complex Than You Might Think

With several bills pending in Congress and executive action by the current presidential administration, with the accompanying rhetoric, you just might start to wonder about—or maybe have already formed an opinion on—“patent trolls.” The issue is actually fairly complex. While I think some reform is a good idea*, I’m eager (as always) that we not throw babies out with bathwater. So you can make up your own mind, what I thought I’d do is set out the patent laws and principles most important to the phenomena of the “patent troll.”

* Something more nuanced than either “patents suck; they always interfere with innovation” and “patents are awesome; they always lead to innovation.”

The term “patent troll” is a pejorative term that means slightly different things to different people. It could mean:

Simply any patentee (owner of a patent) that does not practice the invention disclosed in the patent, politely known as a non-practicing entity (“NPE”).
A patentee that doesn’t practice anything except enforcing the patents it owns, politely known as a “patent holding entity” (“PHE”) or, more positively, a “patent licensing entity.”
A patentee that not only doesn’t practice the disclosed invention, but enforces its patents…

6278739406_2050c6fccc_o copy

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Apple v. Samsung: Some Perspective on One Beeill-yun Dollars!

Dr. Evil Returns!

Almost immediately after the jury in the Apple v. Samsung patent/trade-dress case returned its verdict, the twitterverse was buzzing with Dr. Evil jokes. Try as you might, but you couldn’t say, “$1 billion” without either cracking up, or doing Dr. Evil’s little pinky thing.* Try it. You just can’t.**

* Huh, it looks like he actually says, “$100 billion.”

** As a means of counteracting the Dr. Evil thing, I tried doing it with a Carl Sagan impersonation—bill-yuns and bill-yuns of years ago—but it didn’t feel right.

I did my best to ignore the case while the trial was going on—there’s only so much a guy can take—but when I heard last Friday that the jury was about to return its verdict, I couldn’t resist the siren call of The Verge’s liveblogging. At first, I didn’t think it was a big deal, until I realized my brain was reducing every monetary figure by a magnitude—a defense mechanism against insanity, I think. And when you totaled it all up, yup, it was Dr. Evil time.

I’ve been asked about the verdict a lot at CoderFaire over the weekend, and Monday I was interviewed about it by the Nashville Business…

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