Austin Technology Law Blog : Texas Technology Lawyers & Attorneys for Copyright, Trademarks & Software Licensing in Houston, Dallas & Austin TX

Time Warner Cable has just been accused of promoting copyright infringement in a pleading filed in a lawsuit targeting illegal downloaders.  But first a bit of history about this case.  The US Copyright Group is a company owned by a collection of IP lawyers who are filing a number of lawsuits on behalf of movie producers to seek damages from illegal downloaders.  So far five lawsuits have been filed against tens of thousands of alleged infringers.  (Included in that group of producers is the infamous Uwe Boll.)  This campaign is a stalking horse of sorts in an effort to prove to the large studios that they should join in this strategy of suing thousands of alleged infringers instead of going after the torrent sites or a small group of infringers. 

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In an effort to spur more green technology innovation and business development, the USPTO has decided to alter the application process for green technology related patents.  The initiative is a part Green Technology Pilot Program that allows a fast-track process for patents relating to green technology.  Under the pilot program, inventions related to green technology include:

• discoveries related to renewable energy
• more efficient use of energy resources
• a reduction in greenhouse gas emissions

The average review time for green technology patents is 30 months.  The USPTO hopes to shorten that time frame and examine over 3,000 patents in the first year.  So far, under the Green Technology Pilot Program there have been over 950 requests for accelerated review and only 342 requests granted.  These new rules are aimed to alleviate that problem. 

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Ina Fried, from CNET.com, reported this week that Microsoft filed a patent infringement case against SalesForce.com. SalesForce.com is, among other things, a customer relations management (CRM) software company that provides its product through the cloud. Microsoft is no stranger to patent lawsuits. In fact, they were just ordered to pay $200 Million to Virnet X in a patent infringement lawsuit regarding VPN technology. However, the peculiar thing about the lawsuit filed against SalesForce.com was that it was Microsoft doing the suing. Microsoft has only filed 4 suits against competitors. Most infringement issues involving Microsoft commonly end up in some type of license agreement with the alleged infringer. (See HTC) From this Microsoft receives damages and then licenses their technology to the competitor. However, there appears to be more uncertainty surrounding this case.

It is no secret Microsoft is one of the more established players in the IT world. However, Microsoft, along with everyone else has been losing ground to Google. Microsoft and Google are competitors in e-mail (Gmail/Hotmail), browsers (chrome/IE), search engines (Bing/Google), electronic documents (Office/Google docs), and soon in operating systems (Windows/Chrome OS). Microsoft is attempting to chase Google into the cloud computing realm, as evidenced by the direction Office 2010 and other products are trending. The lawsuit against Salesforce.com might be just another way to gain ground. One of the benefits of being in the game as long as Microsoft has is that they have ownership to some of the foundational technology we all use today. Take a look at the subject matter referenced in these patents:

Ø       7,251,653: Method and system for mapping between logical data and physical data

Ø       5,742,768: System and method for providing and displaying a web page having an embedded menu

Ø       5,644,737: Method and system for stacking toolbars in a computer display

Ø       6,263,352: Automated web site creation using template driven generation of active server page applications

Ø       6,542,164: Timing and velocity control for displaying graphical information

Ø       6,281,879: Timing and velocity control for displaying graphical information (the 164 patent above looks to just be a continuation of this patent)

Ø       5,845,077: Method and system for identifying and obtaining computer software from a remote computer

Ø       5,941,947: System and method for controlling access to data entities in a computer network

All of these patent subjects are associated with cloud computing factors. This is no surprise since Salesforce.com is run from the cloud, but it does question what Microsoft will do next? Will they pursue other companies that infringe on the broad patents? Are they trying to get enforcement out of their patents before the Supreme Court returns an opinion on In re Bilski? Are they just trying to get another license agreement?

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For a good analysis and roundup of the ongoing patent litigation war occurring in the smartphone industry check out this Wired article.

What has for years been a who will-blink-first Mexican stand-off between the tech giants has turned into an all-out gunfight, albeit one conducted by the toughest corporate lawyers money can buy. "Everybody started suing each other a lot more -- not only in telecoms, but in software and a number of other fields -- starting in the mid- to late-90s," says Jim Bessen, a law lecturer at Boston University. "The number of lawsuits filed in the US has tripled since the early-90s." Other than the spat between Apple and Nokia, over the past couple of years several other high-profile companies have become lawyered up.  

The current spat of litigation highlights the problems with the current international patent system and the need for significant reform.

The fight between Apple and Nokia is emblematic of a broader malaise sweeping the tech and communications industries as companies use their patents not for innovation, but to hobble their rivals. Some of the world's most forward looking businesses are now litigators as well as innovators.

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Google's much anticipated operating system, Chrome OS, will finally be revealed at the Computex Taipei show early next month.  Reportedly, Acer will launch netbooks equipped with Chrome OS.  Via venturebeat.com:

It’s still unclear how Chrome OS-equipped netbooks will coexist with those running Google’s Android mobile operating system. We’ve known that Android netbooks would begin popping up this year since early 2009, and even Acer announced its intention to sell them.

This comes one day after Verizon CEO, Lowell McAdam, announced they were working with Google to create an Android-based tablet to rival Apple's iPad.

Update:  Acer has now denied the reports that they will be introducing netbooks running Chrome OS at Computex so we will have to wait a little longer to see the operating system in action.  In the meantime, here are some screenshots of what it might look like.

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The House Oversight and Government Reform committee is set to vote on a new cybersecurity overhaul by as early as next week.  If approved, it would go to the House floor by Memorial Day.  Some key points in the bill:

• create a cybersecurity czar nominated by the President and approved by the Senate
• require agencies to send IT security budgets to the czar for approval
• require IT security provisions in government contracts
• require live, automated reporting from the agencies to speed up response time

The Obama Administration has been pushing for cybersecurity reform since last year.  

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Do you love your iPhone but despise the spotty problems that come with AT&T's service?  Well, you may have to wait awhile longer.  As we discussed previously, the FTC complaint that Adobe filed against Apple in regards to its alleged anti-competitive practices forced Apple to admit in a pleading that the original exclusivity agreement with AT&T was for five years; lasting until 2012. 

Now, many caveats apply.  Foremost is that these agreements are frequently re-negotiated, and it's quite possible that is the case here.  Industry experts are speculating that the deal was probably re-negotiated since the iPad comes with a below market rate data plan with AT&T.  That's tough news for companies like Verizon (the mobile carrier with the highest customer satisfaction ratings) who has been itching to get into the iPhone service provider game. 

So where does that leave us?  We will most likely find out more at the World Wide Developers Conference starting June 7 where Apple has unveiled previous iPhone incarnations.  Stay tuned. 

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With each passing day we are providing more and more personal data to companies through online transactions, social networks, and cloud computing.  Concurrently, there is also a growing framework of laws, regulations and contractual obligations in how companies should treat this information.  These colliding paths are creating what has been dubbed the "The Legal Defensibility Era."  David Navetta of the Information Systems Security Association (ISSA) has written an excellent article outlining this trend and highlighting several important issues that companies must focus on to properly handle data in this new era.

The focus of legal defensibility is understanding how a plaintiff ’s attorney, judge, jury, or regulator will view an organization’s security posture in light of applicable legal requirements.  Under a legal defensibility analysis security choices become legal positions or arguments to be used to persuade legal decision-makers that an organization’s security was legally sound, and increase the likelihood that a judge, jury, or regulator will find a company legally compliant. Ultimately, there may not be a clear “right” or “wrong” answer, but rather a more or less persuasive legal argument/position on security.

To create an effective legal defense, companies should create a security plan with the view that a security incident is a "when" and not an "if."  Companies must create an adequate security policy, abide by that policy, comply with the appropriate laws, regulations, and industry standards; and ensure that its vendors are also handling personal information with the appropriate level of care.   With the advent of cloud based services, the last point is becoming extremely important.  Companies should effectively scrutinize their vendors' security policies and procedures before agreeing to transmit personal information to them.  Focusing on legal defensibility will require more communication and cooperation between a company's IT and legal departments to effectively implement security policies in this new era.  Additionally, for a viewpoint from the security professional side, check out this article. 

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In a previous post, we chronicled the evolution of the provision of computing resources from the days of gigantic, room filling behemoths requiring chilling towers and close proximity to the users to the emerging concept of “cloud” computing where the computing resources are “somewhere out there” in the undefined, amorphous thing called the “cloud”.
In this post, we will discuss the evolution of the provision and use of software from floppy drive, hard drive based software to the cloud applications of today.
Once again, please forgive the trip down memory lane. At the advent of my legal career, the use of computers in anything other than a giant research lab was only a gleam in somebody’s eye. In my law office, documents were created on manual typewriters with carbon paper and onion skin. Lawyers dictated into a machine the size of a small refrigerator or to a stenographer who took it down in shorthand and transcribed it. It's true. 

Look it up on the interwebs. This is how it really happened. Electric typewriters with automatic correction capabilities (tamping a white, chalky substance into the indention made by the incorrect character) were a big breakthrough. Then we stepped into the new age. We obtained two “magcard” word processors that truly were the size of refrigerators and made so much noise that they had to be housed in a separate room lined with insulating material. The “software” was hard wired and resident on the machines and the documents were recorded on a magnetic card the size of the older data entry cards and these cards were read by the machine, which activated an electric typewriter that pounded out the document until a “stop code” was reached, whereupon an operator inserted the appropriate words in the blank. We were cutting edge.
At some point in my career, I was fortunate to obtain a job in-house with an outsourcing and software company, although I had neither experience nor knowledge of any such things. This company managed data centers (primarily for banks) and produced software (again primarily for banks) for giant, honking mainframes. Desktop computers were still the exception rather than the rule. In fact, my company had a “desktop czar” that had to approve all purchases for desktops (even in a “technology” company!). The software was generally written in COBOL and the computing resources were generally in the same room or building as the user and ordinarily owned by the company employing the users. The company I worked for changed that paradigm somewhat by entering into agreements whereby they purchased the computer equipment from the customer, hired the customer’s data processing personnel, operated the data center in place on the customer’s premises and installed my company’s proprietary software in the data center over the course of the contract term. My company also did some remote facilities management where they owned the data center off site from the customer and provided remote processing through dedicated lines. In all cases, the customer could touch, feel and taste the computing resources if desired.
Fast forward to the Internet age and then fast forward again to the age where massive amounts of computer resources are looking for users as opposed to the reverse. 

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Here at ATLB, we have previously discussed Apple restricting the programming tools that could be used to create Apps for the iPhone and the iPad.  Most notably, Flash based programs were restricted which sparked a PR war between Apple and Adobe.  Now it appears that the FTC is seriously considering whether to look into these potentially anti-competitive practices.  

The Federal Trade Commission and the US Justice Department, which enforce US antitrust law, are each looking into Apple’s restrictions. No decision has been made to move forward with an official investigation.

“What they’re [Apple] doing is clearly anticompetitive ... They want one superhighway and they’re the tollkeeper on that superhighway,” said David Balto, a former policy director for the commission.

It should be noted that only an inquiry has been mentioned as opposed to a full-scale investigation.  There will still need to be hearings and further discussion before an investigation is launched.  But at the very least, this will provide Adobe with ammunition in its ever-escalating PR battle against Apple and Steve Jobs. 

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