Bill Introduced In Texas Legislature To Prohibit Employer From Asking You About Your Social Media Password.

Having solved all the other problems in Texas, including the problem of gun violence (prayer) and the problem of uninsured citizens (cutting Medicaid) the Texas legislature has turned to the burning issue of employers requiring employees to provide access information to employee's private social media accounts.

House Bill 318 has been introduced to make it an "unfair employment practice" if an employer "...requires or requests that an employee or applicant for employment disclose a user name, password, or other means for accessing a personal account of the employee or applicant, including a personal e-mail account or a social networking website account or profile, through an electronic communication device."

This bill still allows "monitoring" employee usage of employer provided media and also allows employer policies prohibiting use of company provided resources for personal use.  It doesn't provide for a specific remedy or a damages cap and it will likely be amended substantially before it passes, if it passes at all.  This would make Texas one of a handful of states that has jumped on this burning issue.  Crisis averted.

Who Owns The Patent? Your Assignee or Your Assignee and Your Toxic Ex-Spouse?

We hold these truths to be self evident: (i) Patent rights originally vest in the inventor even if the patent was conceived in the course of employment; (ii) Most companies get assignments from their employees as to patent rights; (iii) All property obtained during marriage is presumptively community property in community property states (e.g. California and Texas); (iv) divorces can be nasty.

So, what happens if an inventor works for a company, creates a patentable invention while married, signs the standard assignment of intellectual property and the spouse does not sign the assignment.  Is that an effective assignment?

Or, what happens if an inventor develops a patentable invention, gets a divorce in which the ownership of such patent is not mentioned, then assigns the patent, the assignee then brings suit on the patent and the defendant moves to dismiss the complaint because the ex-spouse is a necessary party and was not named in the suit?

Who gives a damn?  Well, the U.S. Court of Appeals for the Federal Circuit has to decide this issue in Enovsys LLC v. Nextel et al.  In this case Nextel was sued for infringement of some GPS patents that Enovsys obtained from an inventor after his divorce.  The inventor and the spouse got a "quickie" divorce in California in which they marked a box on the divorce form that said they did not possess any community property.  The Court of Appeals thought that this was enough to vest all ownership in Enovsys and preserve their standing to sue.

Although the Court skirted the issue (no sexism implied) in this case, the issue remains as to the status of patents obtained during marriage and the proper way to assign them.  California and Texas are community property states and both states recognize that property obtained during a marriage is presumptively community property.  The Court of Appeals in Enovsys confirmed that federal patent law does not preempt state law in regard to property ownership.  The Texas Court of Appeals has said (in dicta) that "It is unquestionable that, had these patents been taken out during the marriage, the patents and the income they generated would be community property. In this, we would join other jurisdictions in which the courts treat the income from intellectual property created during marriage as marital or community property."  Alzenz v. Alsenz 101 S.W.3d 648 (2003)

Then, is it possible that a spouse or ex-spouse in a community property state has an interest in your patent portfolio?  Must you get the spouse to sign the assignment of intellectual property rights that resides in your standard forms that companies get all employees to sign?  Must you update that if an unmarried inventor gets married?  Seems like a lot of trouble, doesn't it?  Good practice may indicate that you do so, but the dearth of cases that revolve on this issue would seem to indicate that maybe the chances are so slim that it's not worth the trouble. 

What do you think?

Syracuse Goes For the Orange and Google Scan Settlement Gets Stopped.

Syracuse University once were known as the "Orangemen".  This arose from a hoax in the student newspaper about the fictional remains of an Indian chief being found during the excavation of a university building.  Because of the racist stereotype, Orangemen was eventually changed to "Orange" and the mascot now is a rotund citrus fruit known as Otto.  Now, Syracuse has moved to trademark the "Orange" .  After all, the Fifth Circuit has held that a color scheme can be part of a identifying mark if likely to cause confusion.  Other universities that embrace orange as a team color and use the term orange as part of their identifying marks and slogans have objected, including Tennessee and Auburn but surprisingly not Texas.  Maybe burnt orange is sufficiently different so as to not cause confusion.  After all, school buses, road cones, citrus fruit and pumpkins are different colors, right?

In Google's quest to rule the world, it entered into agreements with several large libraries to scan books, include "snippets" of such books in a database and allow searches of such scans.  In 2005, Google predictably was sued for copyright infringement and just as predictably raised fair use as a principal defense.  The suit was in the nature of a class action and Google had entered into a settlement of this case, which would have allowed Google to continue the scanning with the payment of certain fees.  The settlement was subject to approval by the courts but the District Court Southern District of New York said "not so fast" and rejected the settlement.  The reasons stated by the Court include that the settlement "...would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the [settlement agreement] would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case."

Back to the drawing board.

Texas Attorney General Investigates Google's Alleged Anti-Trust Activity

On September 3, Search Engine Land reported, and Google confirmed that the Texas Attorney General, Greg Abbott, inquired about and is currently investigating potential anti-trust activity by Google. It was reported Greg Abbott's office declined to answer any questions, and now everyone is just speculating on what the outcome will be. Well, I'm no better. 

This is not the first anti-trust inquiry Google has faced, and it likely won't be the last. According to Experian Hitwise, Google accounts for 71% of searches in the United States, and it's no surprise to anyone when you've got that kind of market share, you've got a lot of bulls-eyes on your back, as well as a lot of government officials making sure you don't go all anti-trusty on the rest of the market. Google has been in this position for sometime, and I'm sure I'm missing a few, but here are some of the Google antitrust highlights over the last few years:

There were other activities involving the FTC, but for purposes of brevity let's pretend I've included the most relevant instances. Since a majority of internet users search using Google, any company  wanting to be found spends a lot of money utilizing the algorithms set out by the internet giant. Take a look at number of new companies providing SEO functions. When large expenditures are dedicated to this task and lost when the algorithm is altered, you can imagine the frustration and the likelihood of damages that could be involved. You've got angry companies who wonder why these changes had to happen. This is a valid concern, right?

On the flip side, doesn't Google need to update its algorithms? Understandably, Google has to change with the technology (new programing languages, bots, etc.) in order to provide the best search engine for it's users. It doesn't want to lose any of that 71%. However, if Google competitors begin to lose page rank status because of these changes questions begin to arise to the reasoning behind the changes. 

According to Google's business model, "You can make money without being evil," and I have a tendency to believe them. It might be because of all the products I use, but they seem to do a great job of creating well thought out systems that help my productivity. If changes to the search engine are found to be anticompetitive because someone loses their page rank, is that a victory? Does the public benefit? Does holding back the smartest person in the class really help competition and the end-user?

On a similar note, factor in that several of these companies have ties to Microsoft, and you've got a mixed bag of issues. Microsoft owns Ciao (as mentioned above), and involved their lawyers with assistance in proper representation. Then in February of 2010, Microsoft General Counsel, Dave Heiner, voiced his opinions on the matter, discussing that it's not just Microsoft pointing fingers, but several companies and groups raise interesting questions regarding Google's potentially anticompetitive nature. 

As I mentioned, I like to think Google isn't evil, but what if I and my fellow Googlers are wrong? What if the reverse is true and Google alters algorithms when another search company starts to gain market share? It will be interesting to see how these investigations progress and what kind of case will develop. Without addressing the validity of anti-trust laws, it's a touchy area when determining whether changes in the Google algorithms had a basis in creating a better search engine or were used a vehicle to keep any competitors out of the market. What were the motives of any changes? Were there "better" results for the searching capabilities of Google? Who decides what those "better" capabilities should be?

As a final note, back in March of last year, Eric Clemons, wrote a guest piece for TechCrunch and gave his opinion of "What an anti-trust suit against Google would look like." The article provides great insight on the basics of how these lawsuits work and is a good read if you want to see how this suit might potentially proceed.