With the advent of the first-to-file patent system that began on March 16, 2013, one of the things that patent practitioners will soon leave behind is the patent interference: a proceeding to determine which of two or more patent filers actually was the first to conceive of the invention at issue.  Part administrative and part judicial, patent interferences have their own arcane procedures that developed over the 150+ years that interferences have been conducted.

The patent interference procedure pops up in some unlikely places.  It is a key plot point in Aaron Sorkin's play, The Farnsworth Invention, which deals with who invented television.  And in 1962, Richard H. Stern, Justice White's first law clerk, pointed out in a law review article the logical paradoxes that arise when applying patent interference law.

You can get a sense of the process by looking at the graphic to the left, which illustrates what happens when two patent applicants A and B provoke an interference with patentee C.  The procedure involves scads of motion practice, testimony and multiple levels of review, all revolving around the abstract notion of determining "who thought of that first?"  I always enjoyed my dealings with interference issues and I will miss this part of patent law.

The "first sale" doctrine has long been a limitation on the rights of copyright holders.  In essence, the doctrine provides that once a first sale of a copyrighted work is validly made, the copyright owner has obtained all the consideration he or she will receive for that work and nothing need be paid for any future resales.  While this was accepted doctrine if the first sale occurred in the U.S., it was not clear what happens if a valid sale of the copyrighted work occurred outside the U.S. and the work was then imported into the U.S.  On March 19, 2013, the Supreme Court  in Kirtsaeng v John Wiley & Sons, Inc., held that such imports were covered by the first sale doctrine.

The outcome was cheered by museums, libraries and resellers of copyrighted works in the U.S. that obtain materials worldwide. But the decision was a setback for international producers and distributors of copyrighted works that provide targeted products or pricing to specific markets.  In fact, that is exactly what Kistaeng did: while he was study­ing in the United States, Kirtsaeng asked his friends and family in Thailand to buy copies of foreign edition English­ language textbooks at Thai book shops, where they sold at low prices, and mail them to him in the United States.  Kirtsaeng would then sell them, reimburse his family and friends, and keep the profit.   So look for businesses based on taking advantages of these price imbalances--what I call "copyright arbitrage"--to flourish in the future.

Determining who really owns a patent is not a simple process.  Looking at the "Assignee" field on the patent database is not helpful: that only tells you which entity owned the patent when it issued.  And although the Patent Office maintains a patent assignment database, it can be difficult to use and does not provide much more than the basic information about a transfer.  To find out more information (such as the underlying transfer documents), you have to hire a service to pull the records from the Assignment Branch at the Patent Office.  Finally, patents are often placed in holding companies or shells that provide no information on which entity actually owns the patent.

So it is with interest that I read Microsoft's recent announcement that it is posting a complete list of all patents it owns on its website.  Brad Smith, Microsoft's General Counsel explained: "We take this step today because we believe that all stakeholders of the U.S. patent system – private companies, the U.S. Patent and Trademark Office, Congress and the courts – share responsibility for taking steps to improve its operation. Sensible improvements to the patent system, such as increasing transparency on patent ownership, will yield tangible outcomes that enhance American competitiveness, create jobs and foster growth in nearly every sector of the U.S. economy."  It will be interesting to see if other companies follow suit.

While I am sure that the vast majority of users never review privacy policies for the websites and devices they use, the content of these policies do matter.  On February 22, 2013, the FTC settled a privacy-related investigation against HTC America for violation of HTC's privacy and security policies.  The FTC charged that HTC America's mobile devices failed to employ reasonable and appropriate security practices and that these failures allowed unauthorized access to users' private data.

The settlement not only requires the establishment of a comprehensive security program, but also prohibits HTC America from making any false or misleading statements about the security and privacy of consumers’ data on HTC devices. HTC America and its network operator partners also agreed to deploy security patches to consumers’ devices.

The takeaway?  Privacy policies are not just boilerplate--they should be examined periodically to make sure that they are being followed.