I’d fallen behind on some reading, but in catching up I noticed two copyright “fair use” cases that I thought were pretty interesting.

The first was decided by the 9th Circuit Court of Appeals in California. This case is similar to a situation that we encounter often, but on a scale that I’ve never seen before. Briefly, the L.A. County Sheriff’s Department entered into a license that allowed it to make approximately 3600 copies of a software program on its computers. Through inadvertence, poor record keeping, or poor supervision, the Sheriff’s Department installed the software on approximately 6,000 computers. Exceeding the scope of a license is copyright infringement, and the software owner so claimed. The Sheriff’s Department’s main line of defense was that it’s actions were “fair use.” In all the cases I’ve handled of this nature, it had never occurred to me to assert a fair use defense, and I don’t regret my failure to come up with this imaginative defense.… Read the full article

It’s rare for a trade secret case to reach the First Circuit Court of Appeals. In fact, based on a Westlaw search only about five cases dealing with trade secret issues (except in passing) have reached the First Circuit in the last ten years. So, a trade secret decision from a court of that eminence is worth noting.

In Incase Inc. v. Timex Corp., Incase (a packaging design and manufacturing company based in Hopedale, Massachusetts), sued Timex after Timex commissioned Incase to design watch packaging for the secure retail display of Timex watches. After Incase designed the cases Timex bought some cases from Incase, but far fewer than had been discussed. Instead, Timex off-shored most of the manufacturing work to a Philippines company, using Incase’s designs and prototypes. The Philippine product was very similar to the Incase design.

An Incase employee stumbled across Timex watches displayed in the Philippine company’s package in a Target store.… Read the full article

Jury Trials In IP Cases – "Not"

by Lee Gesmer on June 6, 2007

A few months ago I wrote a blog entry titled “Jury Trials In Massachusetts – “Not”

Today I received an email/promotion from the ABA promoting some IP books and treatises. The email also contained these statistics. Since they come from the ABA IP Litigation Committee, I give them a high degree of reliability:

Number of IP cases filed in 2002: 7,445

Number resolved by trial verdict: 140

That’s 1.9% of IP cases filed in 2002 resolved by trial verdict. The balance were either decided on summary judgment or settlement. Discouraging for lawyers who like to get into court, to say the least. No one can forsee the future, but it would surprise me if this trend reverses itself in the lifetime of anyone reading this post. Civil trials have become too expensive and too risky to “go the distance”. Society is rapidly coming up with ways to avoid trials in the commercial context: arbitration, mediation, better contracts and agreements to start with, higher sophistication among decision makers, and the realization that litigation is often a losers game for both side.… Read the full article

Establishing a Technorati Profile (readers can ignore)

by Lee Gesmer on October 23, 2006

Technorati Profile

If you’re curious, this process is explained here.… Read the full article