Netbook Nitpicking?

Posted on March 2, 2009 by Rob Brooke

Psion Netbook Pro

An interesting trademark showdown has erupted over NETBOOK, a trademark originally registered in November, 2000 by Psion PLC, and now owned by Psion Teklogix Inc.  On February 17, Dell Inc. filed a cancellation action against the mark in the TTAB, alleging that Psion committed fraud on the PTO when Psion filed its Section 8 & 15 affidavits in November, 2006, alleging that it had used the mark NETBOOK in commerce for the five years preceding November, 2006.  Dell also claims that Psion abandoned the mark by not using it since 1999. Dell's cancellation petition may be seen here.

Not to be outdone, Intel has jumped on the bandwagon and filed a lawsuit in the U.S. District Court for the Northern District of California, also asking for Psion's trademark to be canceled because the mark has become the generic term for small, inexpensive, low power laptop computers. Intel also throws in a fraud claim as well. Intel claims that Psion discontinued the last Netbook in 2003. Based on Intel's allegations, it seems that Psion started the mess when it sent a cease and desist letter to Intel accusing the chip manufacturer of aiding and abetting manufacturers and retailers to use the mark.

Psion's nastygram campaign also included enthusiast websites that were using the mark NETBOOK. Psion also convinced Google to tell its ad customers to stop using the mark in their Google ads.

Stay tuned for more fireworks. Intel should have filed its action in the Rocket Docket so the result would be known sooner. Expect these sorts of trademark wars to break out with more frequency as consumers (and manufacturers) adopt early computing trademarks as generic terms.

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Squatting in the Public Domain: Part One

Posted on March 2, 2009 by Bernie Pike

OK, so patent laws are complex and the courts have decided to keep changing the rules.  We have deal with it.  However, I strongly believe and will argue in this blog that strong patent laws accelerate innovation and the limited monopoly provided in exchange for disclosing and enabling an invention can be arranged as a fair exchange.  An ideal patent is balanced such that only “inventions” are found to be patentable and the claim scope granted in the patent is commensurate with the invention.  In such a system, the public would benefit equally with the inventor from disclosure and use of an invention.  However, implementing a system of laws that defines what is useful, new, nonobvious, clear, and enabled and thus eligible for a “right to exclude other” from performing has proven complex.

The complexity, exacerbated by frequent changes in the law by the Supreme Court and the Court of Appeals for the Federal Circuit, has created a grey area between technology that may protected by enforceable patented technology and technology that is in the public domain.  For example, the patent office due to budget problems and frequent examiner turn over has issued patents with questionable validity.  Further, several court decisions have moved enforceable patents from enforceable intellectual property to the public domain.  These patents are left “squatting on the public domain.”

These squatters are costly to business and a drag on the innovation.  Businesses must decide how to deal with these squatters.  Here are the options:
 

  • Design around Squatting Patent;
  • Invalidate the Squatting Patent:
    • Reexamination – ex parte reexamination or inter partes reexamination; or
    • File declaratory judgment suit if threatened;
  • License the Squatting Patent; or
  • Produce the product and risk “infringement suit.”

There certainly is value in owning even unenforceable patents.  In fact, every patent holder should understand whether they are merely squatting in the public domain to understand the value of their own patents.  More later . . .

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