As if this debate weren't raging and wasting our time and attention, there is this dreadful -- but "right on," unfortunately -- options backdating story redux from Joe Nocera of NYT (Mr. Nocera usually knows what he is talking about):
When all is said and done, it looks to me like Apple will need: (1) Some new/better lawyers; (2) To re-jigger its board. If both these things don't happen quickly, it could be the CEO that ends up paying the price. And, that would be VERY bad for Apple's stock.
I always start to get worried when the mighty are seen (rightly or wrongly) as starting to thumb their noses at the Feds and courts, since prosecutors become famous taking them on. Too many examples come to mind......
As if this debate weren't raging and wasting our time and attention, there is this dreadful -- but "right on," unfortunately -- options backdating story redux from Joe Nocera of NYT (Mr. Nocera usually knows what he is talking about):
When all is said and done, it looks to me like Apple will need: (1) Some new/better lawyers; (2) To re-jigger its board. If both these things don't happen quickly, it could be the CEO that ends up paying the price. And, that would be VERY bad for Apple's stock.
I always start to get worried when the mighty are seen (rightly or wrongly) as starting to thumb their noses at the Feds and courts, since prosecutors become famous taking them on. Too many examples come to mind......
I'm pretty sure Al Gore could pull some strings in this case...
I'm pretty sure Al Gore could pull some strings in this case...
Oh..... I wish.....
After his debacle in 2000 (I'll admit I even voted for him), the only string-pulling he seems to be good at seems to be ones where he is getting tangled in his own underwear.
Patent law, maybe, maybe not (see below on first-to-file vs. first-to-invent, there are legal differences between the two). Trademarks: yes, timing does play a more significant role
Timing does matter. Timing is one of the most important aspects of copyright/tradmark disputes.
Quote:
2. "It's like a patent":
Patents are different than trademarks (substantively and for the most part, legally): the two cover wholly distinct forms of intellectual property which are governed by completely different legal principles: Patent protection was established by the US Constitution (Article 1, Section 8, p. 8, while Trademarks were only protected under state common law before congress passed Title 35. That said, the law governing the two do share similarities in that Patents and Trademarks can be abandoned. This is not the clear cut case of Trademark infringement that some are making it out to be. Whether a Trademark has been abandoned is an extremely fact-specific question, therefore, both sides can present facts to support their side of the issue. Not only does Apple have a chance to win this lawsuit, but Cisco could end up in hot water if they manipulated evidence to suggest that they were actively using the iPhone name when in fact the trademark COULD have been abandoned in 2005 due to unuse. See this article for evidence of this possibility: also provided by Spamsandwich
My oh my, you are mixing things up. If two inventers have equal dates on their invention, or in their working notes, the first to file will pretty much always win the patent. The US is also moving to the world model on this. But, you are going out of our way here.
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In Europe (and pretty much the rest of the world), the first person to file is considered the inventor. Period. Not so in the US. What this means is that with Patents, even is a person is first-to-file and receives a patent, another person can initiate an interference action and try to prove that they were the first inventor:
See 35 U.S.C. Section 102(g): Conditions for patentability; novelty and loss of right to patent.
"A person shall be entitled to a patent unless -
(g)(1) during the course of an interference conducted under section 135 or section 291, another inventor involved therein establishes, to the extent permitted in section 104, that before such person's invention thereof the invention was made by such other inventor and not abandoned, suppressed, or concealed..."
The patent application process/filing of a patent is one of the areas where Patent law and Trademark law have almost nothing to do with one another (see point 1 above). Let's just say that I am in my third year of law school, and I can file a Trademark application. Not so for a patent. This is a much more complex process.
I covered all of that in one sentence.
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The potential for confusion is one of the major tests used to resolve trademark infringement actions (whether the name, product, logo, packing is so similar to that of another that consumers will confuse the two). The potential for confusion does not determine whether the two names will conflict and is moot in this case since the two names are exactly the same (iPhone vs. IPHONE). The questions is, rather, who has the right to use the name, not whether the potential for confusion exists (pretty clearly the case since the names are almost identical). Sorry to nitpick.
Third year or not, you are correct on the first part, which I already have said, but only partly correct on the second part.
If two items are far enough apart in function, or physical appearance, the name, even though the same, may not be considered to be infringing. But, that's not a fixed area. It varies according to circumstance.
With a name like "iPhone", the use is indicated by the name. That makes it difficult to distinguish between two different products using it. I've been stating that if the information we have seen is correct, then Apple is clearly infringing. If this recent development is true, however, that changes matters.
Quote:
In what capacity?
I'm pretty familiar with this myself, in the real world.
I was a partner in two companies since the mid '70's, and copyright/trademark, and patents was something I became involved in, any number of times. We had a number of patents, copyrights, and trademarks.
Interestingly enough, my second company became embroiled in a (short) dispute. I joined the company about a year after it formed. The Name was "New York Color Works". We were a commercial film lab.
Shortly after I arrived, we received a notice that our name had already been taken by a company in the same city!
I inquired of the lawyers who handled that, including the search, and they stated that they had looked at the film industry, and film labs. This other company was a printing company, and the name didn't turn up. This happens more often than one might think.
My advice was that we not fight, and that we change our name instead. That was agreed upon. We changed our name to "New York Film Works, and everyone was happy, except for the bookkeeper, as it cost almost $100,000 to change everything that used the name. They agreed to give us three months to take care of this, to which we didn't object.
The reason why I'm distinguishing between theoretical and real world, is because people are people. Judges are usually pretty straight, but not always. Sometimes they get a bird up their nose about something.
Juries are notorious about disregarding law handed down by the judge, and making up their own. Often it then becomes known as "precedent", and is followed in later cases, being used as a reference.
I know a lot of lawyers, particularly trial lawyers. They are always concerned that a jury will interpret the law in a way that is unfavorable.
In the criminal cases I've been on, most people have taken their job very seriously, and have been careful to follow the instructions.
But in civil cases—watch out! Remember there is a "preponderance of evidence" rule. This allows jurors to mess with it easily. No prison time being involved, just money, changes the character of the cases, unless they are involving physical, or mental injury.
My last case was a medical malpractice, and that was a tough one.
But if it were a copyright/trademark dispute, then other factors come into play. That's why Apple wants a jury trial. They might win, right or wrong.
Sometimes this even affects a criminal case. Look at O.J. Simpson.
My wife often says: If they only told us this in law school!
As if this debate weren't raging and wasting our time and attention, there is this dreadful -- but "right on," unfortunately -- options backdating story redux from Joe Nocera of NYT (Mr. Nocera usually knows what he is talking about):
When all is said and done, it looks to me like Apple will need: (1) Some new/better lawyers; (2) To re-jigger its board. If both these things don't happen quickly, it could be the CEO that ends up paying the price. And, that would be VERY bad for Apple's stock.
I always start to get worried when the mighty are seen (rightly or wrongly) as starting to thumb their noses at the Feds and courts, since prosecutors become famous taking them on. Too many examples come to mind......
I got you out of order here.
My wife really does not like Apple's lawyers.
She says that while they were always difficuly, they are much worse after Jobs came back.
They will work on an agreement, everyone will be ready to sign it, and they will come back with changes. They will do that several times.
My wife (Sue) has said that more than one time, she said that she would write up the agreement and give it to them to sign, after these shananagans. Then they give in. But, they are dealing with CitiCorp. Smaller companies can't get away with that.
Unless Cisco really screwed up here, Apple won't find them to be so easy. Though they might both decide to end it.
It looks like Cisco slapped a sticker on a product (it's outside the shrink wrap!) as an exhibit and claimed they'd been continuously using the mark. This may indeed not hold up, and is certainly what Apple means by "tenuous at best." This could be fun.
As a real world matter, Cisco RENAMED some products with their old out-of-use iPhone name. Whether that will hold up... is for lawyers and judges.
I doubt it is financial extortion though. Cisco makes over 5 billion a year in profits, and even an unreasonably large one-time payment isn't going to move the needle on their stock price. I think they want in somehow to the iParty.
The thing is, I have this image in my mind of what the Cisco iPhone looks like compared to the Apple iPhone. That contrast totally undoes ALL of Cisco's advertising making them look like the future! I mean, they're selling a phone! With buttons and stuff. VOIP maybe, but it looks soooo 20th century. Seriously. It hurts their brand and they would be better served to just settle for money.
Cisco isn't going to back out. Apple can come to the table and work out a deal. This isn't a mom and pop shop Apple is dealing with, Cisco completely dwarfs Apple, and has the lawyers and assets to do battle with Apple.
Quote:
Originally Posted by spresso
It looks like Cisco slapped a sticker on a product (it's outside the shrink wrap!) as an exhibit and claimed they'd been continuously using the mark. This may indeed not hold up, and is certainly what Apple means by "tenuous at best." This could be fun.
As a real world matter, Cisco RENAMED some products with their old out-of-use iPhone name. Whether that will hold up... is for lawyers and judges.
I doubt it is financial extortion though. Cisco makes over 5 billion a year in profits, and even an unreasonably large one-time payment isn't going to move the needle on their stock price. I think they want in somehow to the iParty.
The thing is, I have this image in my mind of what the Cisco iPhone looks like compared to the Apple iPhone. That contrast totally undoes ALL of Cisco's advertising making them look like the future! I mean, they're selling a phone! With buttons and stuff. VOIP maybe, but it looks soooo 20th century. Seriously. It hurts their brand and they would be better served to just settle for money.
This isn't a mom and pop shop Apple is dealing with, Cisco completely dwarfs Apple, and has the lawyers and assets to do battle with Apple.
The quality of a company's legal representation is not directly proportional to their position in the marketplace. So yea, Cisco dwarfs Apple--but they are both billion dollar companies and I'm sure they're both aptly represented.
Second, as melgross pointed out, most (sane) people would agree that there was ample evidence to convince a jury beyond a reasonable doubt that O.J. murdered two people and look how that trial turned out. The point: jury trials can end with surprising results (ie, this is not a clear cut case for either company and there are strong arguments to be made on both sides).
Timing does matter. Timing is one of the most important aspects of copyright/tradmark disputes.
And this is different from what I said how? From my first post:
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1. "the timing doesn't matter"
Patent law, maybe, maybe not (see below on first-to-file vs. first-to-invent, there are legal differences between the two). Trademarks: yes, timing does play a more significant role
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My oh my, you are mixing things up.
You were the one mixing things up. The issue between Apple and Cisco is a trademark one, YOU were the one that brought patents into the discussion by making an anology between the two. Trademark law and patent law are not the same. That was the whole point of my post, to untangle the inferences that you were making between the two.
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If two inventers have equal dates on their invention, or in their working notes, the first to file will pretty much always win the patent.
1. So, if two people invent the same thing at exactly the same time the first to file wins. Yeah, how often does that happen? The majority of patent disputes do not involve simultaneous invention (a rare occasion in proportion to all patent disputes), but cases in which one person claims to have made the invention prior to another.
Contrast the above circumstances, in which the first of two concurrent inventors to file wins (so the timing is relevant) with your original comment:
Quote:
The timing doesn't matter. It's like a patent, first in, first served.
The first part, that the timing doesn't matter, is true if your speaking about the first person to invent, then yes, the timing doesn't matter because the US is a FIRST TO INVENT SYSTEM. The veracity of the second part of the statement, "first in, first served" also depends wholly on who was the "first in", as you put it:
if the person that was first to invent files first, then there is no issue because they were the first to invent, however, if the person that files first was not the first to invent their prior filing date does not make them the inventor. Filing only creates a presumption that the person was first to invent, but this can be overcome. So no, the first to file is not necessarily the one that wins and there are many cases where:
(1) another person wins an interference action against the holder of a patent that was filed first;
(2) a patent is invalidated for failing to meet the novelty test because somone else had invented the invention prior to the patent application. I won't bother to list the cases because this is rudimentary patent law (which you obviously know little about).
The point: (1) leave patent law out of this (2) your generalization about patent priority filing is just that, a generalization which is not accurate and not apropos to trademark law. In fact, it is irrelevant.
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The US is also moving to the world model on this.
That the US is POTENTIALLY moving to the world model does not change the fact that under CURRENT US PATENT LAW the date of the filing is not dispositive in determining who the inventor is because this is NOT A FIRST-TO-FILE system, so this means nothing under current US law.
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I covered all of that in one sentence.
If by cover you meant completely gloss over the differences between the two areas of law with one sweeping generalizatiton that is incomplete and inaccurate, then yes, you did.
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If two items are far enough apart in function, or physical appearance, the name, even though the same, may not be considered to be infringing.
Changing the facts again. The above statement is true, but this hypothetical does not reflect the facts of THIS case, where you have TWO phones with practically IDENTICAL names. This is not about two items with different functions that are far apart, this is a case dealing with two phones (similar category of products with some overlapping functions) with the same name (iPhone vs. IPHONE), therefore, confusion is not the issue, but rather, who has the right to use the name. Cisco's strongest argument is not that consumers will confuse their iphone with Apple's iPhone because to do so would be to state the obvious, but that Apple has no right to the trademark. These are two different legal issues, the latter being the fundamental one.
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With a name like "iPhone", the use is indicated by the name. That makes it difficult to distinguish between two different products using it. I've been stating that if the information we have seen is correct, then Apple is clearly infringing. If this recent development is true, however, that changes matters.
Yes, so the confusion that would result in two phones with the same name is a given (see above) which only makes my point, this is not about confusion but about whether Cisco has a valid trademark in the name. If it does, then Apple cannot use the name due the obvious confusion that would result. If it doesn't, then confusion is moot if Cisco lost the trademark through abandonment because they do not have a legally enforceable trademark.
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I'm pretty familiar with this myself, in the real world.
The real world I could study US Patent law from another part of the galaxy, it still would not change the principles which I've tried to explain to you...
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I inquired of the lawyers who handled that...
At least you have the common sense to leave legal decisions the the pros, otherwise, you'd be in serious trouble. You're obviously not a Patent attorney, or am I wrong (shudder) about that?
Might Apple, as part of a settlement with Cisco, agree to jointly develop an Apple-branded VOIP-iPhone? This could be what Cisco really wants... an exclusive deal with Apple for VOIP phone compatibility.
The parties could very well settle before this goes to trial, but given what is at stake and the inability of both parties to reach an agreement before all of this, I think that it is doubful.
Might Apple, as part of a settlement with Cisco, agree to jointly develop an Apple-branded VOIP-iPhone? This could be what Cisco really wants... an exclusive deal with Apple for VOIP phone compatibility.
This sounds likely. Cisco's press releases have said that they want "interoperability" and not money, without spelling out exactly what they mean.
This could be it. And Apple's response to such a request was probably (and obviously) "no, now get out of my face".
What is this 'interoperability" that Cisco wants? It can't be the handset. An Apple VOIP phone would be in direct competition to the Cisco phone. So what is it that Cisco wants?
What is this 'interoperability" that Cisco wants? It can't be the handset. An Apple VOIP phone would be in direct competition to the Cisco phone. So what is it that Cisco wants?
It's still early in the negotiating process (i.e.: threats, lawsuits), so I can still envision a VOIP phone developed jointly with Apple. I can't write both parties off so quickly. Besides, Apple has a deal with Cingular for the iPhone as shown, there's nothing preventing them from developing other phones with other exclusive vendors... such as Cisco.
And this is different from what I said how? From my first post:
You were the one mixing things up. The issue between Apple and Cisco is a trademark one, YOU were the one that brought patents into the discussion by making an anology between the two. Trademark law and patent law are not the same. That was the whole point of my post, to untangle the inferences that you were making between the two.
1. So, if two people invent the same thing at exactly the same time the first to file wins. Yeah, how often does that happen? The majority of patent disputes do not involve simultaneous invention (a rare occasion in proportion to all patent disputes), but cases in which one person claims to have made the invention prior to another.
Contrast the above circumstances, in which the first of two concurrent inventors to file wins (so the timing is relevant) with your original comment:
The first part, that the timing doesn't matter, is true if your speaking about the first person to invent, then yes, the timing doesn't matter because the US is a FIRST TO INVENT SYSTEM. The veracity of the second part of the statement, "first in, first served" also depends wholly on who was the "first in", as you put it:
if the person that was first to invent files first, then there is no issue because they were the first to invent, however, if the person that files first was not the first to invent their prior filing date does not make them the inventor. Filing only creates a presumption that the person was first to invent, but this can be overcome. So no, the first to file is not necessarily the one that wins and there are many cases where:
(1) another person wins an interference action against the holder of a patent that was filed first;
(2) a patent is invalidated for failing to meet the novelty test because somone else had invented the invention prior to the patent application. I won't bother to list the cases because this is rudimentary patent law (which you obviously know little about).
The point: (1) leave patent law out of this (2) your generalization about patent priority filing is just that, a generalization which is not accurate and not apropos to trademark law. In fact, it is irrelevant.
That the US is POTENTIALLY moving to the world model does not change the fact that under CURRENT US PATENT LAW the date of the filing is not dispositive in determining who the inventor is because this is NOT A FIRST-TO-FILE system, so this means nothing under current US law.
If by cover you meant completely gloss over the differences between the two areas of law with one sweeping generalizatiton that is incomplete and inaccurate, then yes, you did.
Changing the facts again. The above statement is true, but this hypothetical does not reflect the facts of THIS case, where you have TWO phones with practically IDENTICAL names. This is not about two items with different functions that are far apart, this is a case dealing with two phones (similar category of products with some overlapping functions) with the same name (iPhone vs. IPHONE), therefore, confusion is not the issue, but rather, who has the right to use the name. Cisco's strongest argument is not that consumers will confuse their iphone with Apple's iPhone because to do so would be to state the obvious, but that Apple has no right to the trademark. These are two different legal issues, the latter being the fundamental one.
Yes, so the confusion that would result in two phones with the same name is a given (see above) which only makes my point, this is not about confusion but about whether Cisco has a valid trademark in the name. If it does, then Apple cannot use the name due the obvious confusion that would result. If it doesn't, then confusion is moot if Cisco lost the trademark through abandonment because they do not have a legally enforceable trademark.
The real world I could study US Patent law from another part of the galaxy, it still would not change the principles which I've tried to explain to you...
At least you have the common sense to leave legal decisions the the pros, otherwise, you'd be in serious trouble. You're obviously not a Patent attorney, or am I wrong (shudder) about that?
You're confusing some of the points I've been making. Many of those points can't be parted out the way you did. There is relevance to the entire statement.
I've tried to make some points which are correct, for the purpose. But, you are taking them out of context.
That's why you can look at one sentence and disagree, and then agree with the next, when the two are meant to be understood together.
Since when are hypothetical cases not discussed in law school, along with actual examples?
I'm not trying to make a detailed legal argument here. I'm trying to give some idea of the way it works with reference to what many people are familiar with.
If I wanted to give a detailed legal discourse, I could easily post links to the law, or have my wife write it up for me.
I'm very well aware of the way patents work, despite your statements. I did mention the first to invent, working notes concept, which you ignored. My point about the first to file business was obviously intended to show that ALL OTHER THINGS BEING EQUAL, first to file wins. That's all I was intending.
The extraneous comments about patent challenges are irrelevant to the point I was making.
I brought patents into this for one point which remains valid despite your statement.
You've turned this into an argument about patent law, which is ridiculous!
The same is true about some of your other "corrections".
And Copyright/trademark can be a ticklish thing, as witness my own problem in that area.
What is this 'interoperability" that Cisco wants? It can't be the handset. An Apple VOIP phone would be in direct competition to the Cisco phone. So what is it that Cisco wants?
I think they want in on iTunes integration.
Apple has a track record for entering a market with low-to-no profitability, turning it around, and dominating it. They did this to the MP3 player market when they introduced the iPod.
Now, Apple has announced three new WiFi appliances - Apple TV, iPhone and the new AirPort Extreme (with its built-in file server). Cisco is probably afraid that Apple is going to end up taking over the home-network appliance business (which is not very profitable right now, due to low margins and a large number of equally-matched competitors.)
So Cisco wants "in". The iPhone trademark is their entry into the game. If Cisco simply blustered in demanding access to the things that make Apple's products unique (like the user interface, integration with iTunes, etc.), Apple would show them the door in less than a second. But since they are holding a violated trademark, they can use it to try and force Apple's hand (allow us access to what we want and you can have the "iPhone" name.)
Obviously, Apple refused to take the deal, and here we are.
Ah, iTunes for their handsets. Apple wouldn't just show them the door, they would fire salt pellets at them as they ran down the path. I bet Apple doesn't want the iPhone trademark as much as they want to take it away from Cisco. Putting iPhone into the public domain would probably do it.
As far as Apple taking away the home-network business. Cisco needs to pay attention to its own capabilities. Over Christmas I bought a Linksys DSL router for my mother. It worked fine until we had a power interruption. It took me 15 minutes and several resets to get the network up again. I took it out before I left. Mom isn't tech savvy enough to restart a network on her own.
As far as Apple taking away the home-network business. Cisco needs to pay attention to its own capabilities. Over Christmas I bought a Linksys DSL router for my mother. It worked fine until we had a power interruption. It took me 15 minutes and several resets to get the network up again. I took it out before I left. Mom isn't tech savvy enough to restart a network on her own.
I've had similar experiences with five different models of Linksys devices. I have a Linksys GigE switch that gets confused by power interruptions, even when it is on a UPS. I had to pull the power and start it again in order to use the network. The cable modem doesn't seem to be retrieving or handing out DHCP very well and a Linksys AP and their own wireless card would not interoperate properly with any form of encryption (but Linksys AP + MBP usually worked fine). It took me a few hours before I gave up and set the person up with a totally unencrypted link.
Comments
http://select.nytimes.com/2007/01/13.../13nocera.html
When all is said and done, it looks to me like Apple will need: (1) Some new/better lawyers; (2) To re-jigger its board. If both these things don't happen quickly, it could be the CEO that ends up paying the price. And, that would be VERY bad for Apple's stock.
I always start to get worried when the mighty are seen (rightly or wrongly) as starting to thumb their noses at the Feds and courts, since prosecutors become famous taking them on. Too many examples come to mind......
Interesting development...
If this is true, it could change everything. I know that they filed within the grace period, near the end, but this is new information, if correct.
As if this debate weren't raging and wasting our time and attention, there is this dreadful -- but "right on," unfortunately -- options backdating story redux from Joe Nocera of NYT (Mr. Nocera usually knows what he is talking about):
http://select.nytimes.com/2007/01/13.../13nocera.html
When all is said and done, it looks to me like Apple will need: (1) Some new/better lawyers; (2) To re-jigger its board. If both these things don't happen quickly, it could be the CEO that ends up paying the price. And, that would be VERY bad for Apple's stock.
I always start to get worried when the mighty are seen (rightly or wrongly) as starting to thumb their noses at the Feds and courts, since prosecutors become famous taking them on. Too many examples come to mind......
I'm pretty sure Al Gore could pull some strings in this case...
I'm pretty sure Al Gore could pull some strings in this case...
Oh..... I wish.....
After his debacle in 2000 (I'll admit I even voted for him), the only string-pulling he seems to be good at seems to be ones where he is getting tangled in his own underwear.
Absolutely, 100%, WRONG.
1. "the timing doesn't matter"
Patent law, maybe, maybe not (see below on first-to-file vs. first-to-invent, there are legal differences between the two). Trademarks: yes, timing does play a more significant role
Timing does matter. Timing is one of the most important aspects of copyright/tradmark disputes.
2. "It's like a patent":
Patents are different than trademarks (substantively and for the most part, legally): the two cover wholly distinct forms of intellectual property which are governed by completely different legal principles: Patent protection was established by the US Constitution (Article 1, Section 8, p. 8, while Trademarks were only protected under state common law before congress passed Title 35. That said, the law governing the two do share similarities in that Patents and Trademarks can be abandoned. This is not the clear cut case of Trademark infringement that some are making it out to be. Whether a Trademark has been abandoned is an extremely fact-specific question, therefore, both sides can present facts to support their side of the issue. Not only does Apple have a chance to win this lawsuit, but Cisco could end up in hot water if they manipulated evidence to suggest that they were actively using the iPhone name when in fact the trademark COULD have been abandoned in 2005 due to unuse. See this article for evidence of this possibility: also provided by Spamsandwich
http://blogs.zdnet.com/Burnette/?p=236
In general, IP law discourages intellectual property squatting: you either use it, or you lose it.
That is something different. If the information presented in the link from SpamSandwich is correct, it would trump everything else.
That's pretty obvious.
3. It's like a patent, first in, first served.
The United States does not use a first to file system like Europe does, but uses a first-to-invent system. Congress considered revising the Patent statute to a first-to-file system in 2005, but this change has not been approved. This means that, contrary to your assertion, you could be the first-to-file, but it someone else invented the invention covered by the patent first, it makes no difference: the first inventor prevails.
My oh my, you are mixing things up. If two inventers have equal dates on their invention, or in their working notes, the first to file will pretty much always win the patent. The US is also moving to the world model on this. But, you are going out of our way here.
In Europe (and pretty much the rest of the world), the first person to file is considered the inventor. Period. Not so in the US. What this means is that with Patents, even is a person is first-to-file and receives a patent, another person can initiate an interference action and try to prove that they were the first inventor:
http://en.wikipedia.org/wiki/Patent_interference
See 35 U.S.C. Section 102(g): Conditions for patentability; novelty and loss of right to patent.
"A person shall be entitled to a patent unless -
(g)(1) during the course of an interference conducted under section 135 or section 291, another inventor involved therein establishes, to the extent permitted in section 104, that before such person's invention thereof the invention was made by such other inventor and not abandoned, suppressed, or concealed..."
MPEP 2300-Interference Proceedings
The patent application process/filing of a patent is one of the areas where Patent law and Trademark law have almost nothing to do with one another (see point 1 above). Let's just say that I am in my third year of law school, and I can file a Trademark application. Not so for a patent. This is a much more complex process.
I covered all of that in one sentence.
The potential for confusion is one of the major tests used to resolve trademark infringement actions (whether the name, product, logo, packing is so similar to that of another that consumers will confuse the two). The potential for confusion does not determine whether the two names will conflict and is moot in this case since the two names are exactly the same (iPhone vs. IPHONE). The questions is, rather, who has the right to use the name, not whether the potential for confusion exists (pretty clearly the case since the names are almost identical). Sorry to nitpick.
Third year or not, you are correct on the first part, which I already have said, but only partly correct on the second part.
If two items are far enough apart in function, or physical appearance, the name, even though the same, may not be considered to be infringing. But, that's not a fixed area. It varies according to circumstance.
With a name like "iPhone", the use is indicated by the name. That makes it difficult to distinguish between two different products using it. I've been stating that if the information we have seen is correct, then Apple is clearly infringing. If this recent development is true, however, that changes matters.
In what capacity?
I'm pretty familiar with this myself, in the real world.
I was a partner in two companies since the mid '70's, and copyright/trademark, and patents was something I became involved in, any number of times. We had a number of patents, copyrights, and trademarks.
Interestingly enough, my second company became embroiled in a (short) dispute. I joined the company about a year after it formed. The Name was "New York Color Works". We were a commercial film lab.
Shortly after I arrived, we received a notice that our name had already been taken by a company in the same city!
I inquired of the lawyers who handled that, including the search, and they stated that they had looked at the film industry, and film labs. This other company was a printing company, and the name didn't turn up. This happens more often than one might think.
My advice was that we not fight, and that we change our name instead. That was agreed upon. We changed our name to "New York Film Works, and everyone was happy, except for the bookkeeper, as it cost almost $100,000 to change everything that used the name. They agreed to give us three months to take care of this, to which we didn't object.
Juries are notorious about disregarding law handed down by the judge, and making up their own. Often it then becomes known as "precedent", and is followed in later cases, being used as a reference.
I know a lot of lawyers, particularly trial lawyers. They are always concerned that a jury will interpret the law in a way that is unfavorable.
In the criminal cases I've been on, most people have taken their job very seriously, and have been careful to follow the instructions.
But in civil cases—watch out! Remember there is a "preponderance of evidence" rule. This allows jurors to mess with it easily. No prison time being involved, just money, changes the character of the cases, unless they are involving physical, or mental injury.
My last case was a medical malpractice, and that was a tough one.
But if it were a copyright/trademark dispute, then other factors come into play. That's why Apple wants a jury trial. They might win, right or wrong.
Sometimes this even affects a criminal case. Look at O.J. Simpson.
My wife often says: If they only told us this in law school!
As if this debate weren't raging and wasting our time and attention, there is this dreadful -- but "right on," unfortunately -- options backdating story redux from Joe Nocera of NYT (Mr. Nocera usually knows what he is talking about):
http://select.nytimes.com/2007/01/13.../13nocera.html
When all is said and done, it looks to me like Apple will need: (1) Some new/better lawyers; (2) To re-jigger its board. If both these things don't happen quickly, it could be the CEO that ends up paying the price. And, that would be VERY bad for Apple's stock.
I always start to get worried when the mighty are seen (rightly or wrongly) as starting to thumb their noses at the Feds and courts, since prosecutors become famous taking them on. Too many examples come to mind......
I got you out of order here.
My wife really does not like Apple's lawyers.
She says that while they were always difficuly, they are much worse after Jobs came back.
They will work on an agreement, everyone will be ready to sign it, and they will come back with changes. They will do that several times.
My wife (Sue) has said that more than one time, she said that she would write up the agreement and give it to them to sign, after these shananagans. Then they give in. But, they are dealing with CitiCorp. Smaller companies can't get away with that.
Unless Cisco really screwed up here, Apple won't find them to be so easy. Though they might both decide to end it.
As a real world matter, Cisco RENAMED some products with their old out-of-use iPhone name. Whether that will hold up... is for lawyers and judges.
I doubt it is financial extortion though. Cisco makes over 5 billion a year in profits, and even an unreasonably large one-time payment isn't going to move the needle on their stock price. I think they want in somehow to the iParty.
The thing is, I have this image in my mind of what the Cisco iPhone looks like compared to the Apple iPhone. That contrast totally undoes ALL of Cisco's advertising making them look like the future! I mean, they're selling a phone! With buttons and stuff. VOIP maybe, but it looks soooo 20th century. Seriously. It hurts their brand and they would be better served to just settle for money.
It looks like Cisco slapped a sticker on a product (it's outside the shrink wrap!) as an exhibit and claimed they'd been continuously using the mark. This may indeed not hold up, and is certainly what Apple means by "tenuous at best." This could be fun.
As a real world matter, Cisco RENAMED some products with their old out-of-use iPhone name. Whether that will hold up... is for lawyers and judges.
I doubt it is financial extortion though. Cisco makes over 5 billion a year in profits, and even an unreasonably large one-time payment isn't going to move the needle on their stock price. I think they want in somehow to the iParty.
The thing is, I have this image in my mind of what the Cisco iPhone looks like compared to the Apple iPhone. That contrast totally undoes ALL of Cisco's advertising making them look like the future! I mean, they're selling a phone! With buttons and stuff. VOIP maybe, but it looks soooo 20th century. Seriously. It hurts their brand and they would be better served to just settle for money.
This isn't a mom and pop shop Apple is dealing with, Cisco completely dwarfs Apple, and has the lawyers and assets to do battle with Apple.
The quality of a company's legal representation is not directly proportional to their position in the marketplace. So yea, Cisco dwarfs Apple--but they are both billion dollar companies and I'm sure they're both aptly represented.
Second, as melgross pointed out, most (sane) people would agree that there was ample evidence to convince a jury beyond a reasonable doubt that O.J. murdered two people and look how that trial turned out. The point: jury trials can end with surprising results (ie, this is not a clear cut case for either company and there are strong arguments to be made on both sides).
Timing does matter. Timing is one of the most important aspects of copyright/tradmark disputes.
And this is different from what I said how? From my first post:
1. "the timing doesn't matter"
Patent law, maybe, maybe not (see below on first-to-file vs. first-to-invent, there are legal differences between the two). Trademarks: yes, timing does play a more significant role
My oh my, you are mixing things up.
You were the one mixing things up. The issue between Apple and Cisco is a trademark one, YOU were the one that brought patents into the discussion by making an anology between the two. Trademark law and patent law are not the same. That was the whole point of my post, to untangle the inferences that you were making between the two.
If two inventers have equal dates on their invention, or in their working notes, the first to file will pretty much always win the patent.
1. So, if two people invent the same thing at exactly the same time the first to file wins. Yeah, how often does that happen? The majority of patent disputes do not involve simultaneous invention (a rare occasion in proportion to all patent disputes), but cases in which one person claims to have made the invention prior to another.
Contrast the above circumstances, in which the first of two concurrent inventors to file wins (so the timing is relevant) with your original comment:
The timing doesn't matter. It's like a patent, first in, first served.
The first part, that the timing doesn't matter, is true if your speaking about the first person to invent, then yes, the timing doesn't matter because the US is a FIRST TO INVENT SYSTEM. The veracity of the second part of the statement, "first in, first served" also depends wholly on who was the "first in", as you put it:
if the person that was first to invent files first, then there is no issue because they were the first to invent, however, if the person that files first was not the first to invent their prior filing date does not make them the inventor. Filing only creates a presumption that the person was first to invent, but this can be overcome. So no, the first to file is not necessarily the one that wins and there are many cases where:
(1) another person wins an interference action against the holder of a patent that was filed first;
(2) a patent is invalidated for failing to meet the novelty test because somone else had invented the invention prior to the patent application. I won't bother to list the cases because this is rudimentary patent law (which you obviously know little about).
The point: (1) leave patent law out of this (2) your generalization about patent priority filing is just that, a generalization which is not accurate and not apropos to trademark law. In fact, it is irrelevant.
The US is also moving to the world model on this.
That the US is POTENTIALLY moving to the world model does not change the fact that under CURRENT US PATENT LAW the date of the filing is not dispositive in determining who the inventor is because this is NOT A FIRST-TO-FILE system, so this means nothing under current US law.
I covered all of that in one sentence.
If by cover you meant completely gloss over the differences between the two areas of law with one sweeping generalizatiton that is incomplete and inaccurate, then yes, you did.
If two items are far enough apart in function, or physical appearance, the name, even though the same, may not be considered to be infringing.
Changing the facts again. The above statement is true, but this hypothetical does not reflect the facts of THIS case, where you have TWO phones with practically IDENTICAL names. This is not about two items with different functions that are far apart, this is a case dealing with two phones (similar category of products with some overlapping functions) with the same name (iPhone vs. IPHONE), therefore, confusion is not the issue, but rather, who has the right to use the name. Cisco's strongest argument is not that consumers will confuse their iphone with Apple's iPhone because to do so would be to state the obvious, but that Apple has no right to the trademark. These are two different legal issues, the latter being the fundamental one.
With a name like "iPhone", the use is indicated by the name. That makes it difficult to distinguish between two different products using it. I've been stating that if the information we have seen is correct, then Apple is clearly infringing. If this recent development is true, however, that changes matters.
Yes, so the confusion that would result in two phones with the same name is a given (see above) which only makes my point, this is not about confusion but about whether Cisco has a valid trademark in the name. If it does, then Apple cannot use the name due the obvious confusion that would result. If it doesn't, then confusion is moot if Cisco lost the trademark through abandonment because they do not have a legally enforceable trademark.
I'm pretty familiar with this myself, in the real world.
The real world
I inquired of the lawyers who handled that...
At least you have the common sense to leave legal decisions the the pros, otherwise, you'd be in serious trouble. You're obviously not a Patent attorney, or am I wrong (shudder) about that?
SpamSandwich:
The parties could very well settle before this goes to trial, but given what is at stake and the inability of both parties to reach an agreement before all of this, I think that it is doubful.
Might Apple, as part of a settlement with Cisco, agree to jointly develop an Apple-branded VOIP-iPhone? This could be what Cisco really wants... an exclusive deal with Apple for VOIP phone compatibility.
This sounds likely. Cisco's press releases have said that they want "interoperability" and not money, without spelling out exactly what they mean.
This could be it. And Apple's response to such a request was probably (and obviously) "no, now get out of my face".
What is this 'interoperability" that Cisco wants? It can't be the handset. An Apple VOIP phone would be in direct competition to the Cisco phone. So what is it that Cisco wants?
It's still early in the negotiating process (i.e.: threats, lawsuits), so I can still envision a VOIP phone developed jointly with Apple. I can't write both parties off so quickly. Besides, Apple has a deal with Cingular for the iPhone as shown, there's nothing preventing them from developing other phones with other exclusive vendors... such as Cisco.
And this is different from what I said how? From my first post:
You were the one mixing things up. The issue between Apple and Cisco is a trademark one, YOU were the one that brought patents into the discussion by making an anology between the two. Trademark law and patent law are not the same. That was the whole point of my post, to untangle the inferences that you were making between the two.
1. So, if two people invent the same thing at exactly the same time the first to file wins. Yeah, how often does that happen? The majority of patent disputes do not involve simultaneous invention (a rare occasion in proportion to all patent disputes), but cases in which one person claims to have made the invention prior to another.
Contrast the above circumstances, in which the first of two concurrent inventors to file wins (so the timing is relevant) with your original comment:
The first part, that the timing doesn't matter, is true if your speaking about the first person to invent, then yes, the timing doesn't matter because the US is a FIRST TO INVENT SYSTEM. The veracity of the second part of the statement, "first in, first served" also depends wholly on who was the "first in", as you put it:
if the person that was first to invent files first, then there is no issue because they were the first to invent, however, if the person that files first was not the first to invent their prior filing date does not make them the inventor. Filing only creates a presumption that the person was first to invent, but this can be overcome. So no, the first to file is not necessarily the one that wins and there are many cases where:
(1) another person wins an interference action against the holder of a patent that was filed first;
(2) a patent is invalidated for failing to meet the novelty test because somone else had invented the invention prior to the patent application. I won't bother to list the cases because this is rudimentary patent law (which you obviously know little about).
The point: (1) leave patent law out of this (2) your generalization about patent priority filing is just that, a generalization which is not accurate and not apropos to trademark law. In fact, it is irrelevant.
That the US is POTENTIALLY moving to the world model does not change the fact that under CURRENT US PATENT LAW the date of the filing is not dispositive in determining who the inventor is because this is NOT A FIRST-TO-FILE system, so this means nothing under current US law.
If by cover you meant completely gloss over the differences between the two areas of law with one sweeping generalizatiton that is incomplete and inaccurate, then yes, you did.
Changing the facts again. The above statement is true, but this hypothetical does not reflect the facts of THIS case, where you have TWO phones with practically IDENTICAL names. This is not about two items with different functions that are far apart, this is a case dealing with two phones (similar category of products with some overlapping functions) with the same name (iPhone vs. IPHONE), therefore, confusion is not the issue, but rather, who has the right to use the name. Cisco's strongest argument is not that consumers will confuse their iphone with Apple's iPhone because to do so would be to state the obvious, but that Apple has no right to the trademark. These are two different legal issues, the latter being the fundamental one.
Yes, so the confusion that would result in two phones with the same name is a given (see above) which only makes my point, this is not about confusion but about whether Cisco has a valid trademark in the name. If it does, then Apple cannot use the name due the obvious confusion that would result. If it doesn't, then confusion is moot if Cisco lost the trademark through abandonment because they do not have a legally enforceable trademark.
The real world
At least you have the common sense to leave legal decisions the the pros, otherwise, you'd be in serious trouble. You're obviously not a Patent attorney, or am I wrong (shudder) about that?
You're confusing some of the points I've been making. Many of those points can't be parted out the way you did. There is relevance to the entire statement.
I've tried to make some points which are correct, for the purpose. But, you are taking them out of context.
That's why you can look at one sentence and disagree, and then agree with the next, when the two are meant to be understood together.
Since when are hypothetical cases not discussed in law school, along with actual examples?
I'm not trying to make a detailed legal argument here. I'm trying to give some idea of the way it works with reference to what many people are familiar with.
If I wanted to give a detailed legal discourse, I could easily post links to the law, or have my wife write it up for me.
I'm very well aware of the way patents work, despite your statements. I did mention the first to invent, working notes concept, which you ignored. My point about the first to file business was obviously intended to show that ALL OTHER THINGS BEING EQUAL, first to file wins. That's all I was intending.
The extraneous comments about patent challenges are irrelevant to the point I was making.
I brought patents into this for one point which remains valid despite your statement.
You've turned this into an argument about patent law, which is ridiculous!
The same is true about some of your other "corrections".
And Copyright/trademark can be a ticklish thing, as witness my own problem in that area.
What is this 'interoperability" that Cisco wants? It can't be the handset. An Apple VOIP phone would be in direct competition to the Cisco phone. So what is it that Cisco wants?
I think they want in on iTunes integration.
Apple has a track record for entering a market with low-to-no profitability, turning it around, and dominating it. They did this to the MP3 player market when they introduced the iPod.
Now, Apple has announced three new WiFi appliances - Apple TV, iPhone and the new AirPort Extreme (with its built-in file server). Cisco is probably afraid that Apple is going to end up taking over the home-network appliance business (which is not very profitable right now, due to low margins and a large number of equally-matched competitors.)
So Cisco wants "in". The iPhone trademark is their entry into the game. If Cisco simply blustered in demanding access to the things that make Apple's products unique (like the user interface, integration with iTunes, etc.), Apple would show them the door in less than a second. But since they are holding a violated trademark, they can use it to try and force Apple's hand (allow us access to what we want and you can have the "iPhone" name.)
Obviously, Apple refused to take the deal, and here we are.
As far as Apple taking away the home-network business. Cisco needs to pay attention to its own capabilities. Over Christmas I bought a Linksys DSL router for my mother. It worked fine until we had a power interruption. It took me 15 minutes and several resets to get the network up again. I took it out before I left. Mom isn't tech savvy enough to restart a network on her own.
As far as Apple taking away the home-network business. Cisco needs to pay attention to its own capabilities. Over Christmas I bought a Linksys DSL router for my mother. It worked fine until we had a power interruption. It took me 15 minutes and several resets to get the network up again. I took it out before I left. Mom isn't tech savvy enough to restart a network on her own.
I've had similar experiences with five different models of Linksys devices. I have a Linksys GigE switch that gets confused by power interruptions, even when it is on a UPS. I had to pull the power and start it again in order to use the network. The cable modem doesn't seem to be retrieving or handing out DHCP very well and a Linksys AP and their own wireless card would not interoperate properly with any form of encryption (but Linksys AP + MBP usually worked fine). It took me a few hours before I gave up and set the person up with a totally unencrypted link.
I would suggest avoiding their hardware.