Supreme Court: Federal Circuit got §271(b) wrong and maybe §271(a) as well.

At its heart the Internet is an information distribution network and the ease with which all manner of information can be shared instantly has led to numerous innovative methods of doing, well, most anything. A hallmark of patents on such methods is that the various steps are carried out by multiple actors as information is passed around the Internet. Often the actors between which the steps of the patented method are divided have only the most tenuous connection with one another. In a case that is reshaping our understanding of what it means to infringe a method patent in the digital age, the Supreme Court reversed the Federal Circuit’s ruling on such divided infringement in Limelight Networks v. Akamai Tech. (more…)

Naturally, litigation results from unsupported advertising claims and undefined terms.

The WSJ Corporate Intelligence blog has an interesting article today that highlights the risks inherent in un-vetted advertising claims.  Apparently Proctor & Gamble took issue with “99% Natural” claim that toothpaste maker Hello Products, LLC was making with respect to its toothpastes which come in unusual flavors (for toothpaste) like pink grapefruit mint and mojito mint. Neither the FDA nor FTC have guidelines for what constitutes “natural” or “all natural” products.  In practice, the FDA takes the position that it will “not object[] to the use of the term if the food does not contain added color, artificial flavors, or synthetic substances,” but you are apparently on your own to determine what exactly is or is not a “synthetic substance.”  Because of the regulatory confusion over the meaning of “natural,” litigation over what does or does not qualify often resorts to claims sounding in state false advertising, unfair trade practices, or consumer protection statutes, or alleging common law fraud or breach of warranty.  Some clarity as to what it means to be natural that we can all agree on (or at least rely on) would be helpful from both the consumer and advertiser perspective, much like the USDA’s National Organic Program that tries to put some meaning into that word as used on food labels.  Apparently, though,  it is difficult from a food science perspective  to define a food product that is natural “because the food has probably been processed and is no longer the product of the earth,” according to the FDA.  That seems to have been part of P&G’s problem as the maker of one of the country’s leading toothpastes, Crest,  asserted that some of the Hello Product’s toothpaste’s ingredients, like fluoride, were chemically processed and thus not “natural.”

For its part, Hello Products offered to change its packaging after it had sold its existing stock but that did not satisfy P&G which filed suit and obtained an injunction to block the sale of the offending toothpaste. The upside for those of you in NYC tomorrow is that Hello Products plans to give away the 100,000 tubes it can no longer sell as free samples on the streets of Manhattan. Grab a tube (I recommend the grapefruit) and remember that FTC truth-in-advertising rules require that:

  1. advertising must be truthful and non-deceptive;
  2. advertisers have evidence to back up their claims; and
  3. advertisements are not unfair.

A new Picasso — and a hefty tax bill.

Jeffrey Gonano of Wexford in western Pennsylvania won the lottery for the 1914 Picasso painting L’Homme au Gibus (Man in the Opera Hat).  Mr. Gonano had purchased one of the 50,000 lottery tickets that had been sold for 100 euros (approximately $137) each.  The lottery was held to benefit two Arts and Cultural Projects in a UNESCO World Heritage city in Lebanon.

However, because the painting is valued at approximately $1 million, the win may come with a tax bill as large as $365,000.  And, unlike a lottery with a cash prize, Mr. Gonano cannot pay the taxes out of the proceeds, unless he decides to sell the painting.  Of course, Mr. Gonano can avoid the tax liability by donating the painting to a charity or museum.  Mr. Gonano is currently exploring his options.

http://www.goerie.com/article/20131223/NEWS06/312239957/Picasso-may-pose-$365000-tax-dilemma-for-raffle-winner

Win a Picasso and Own a Masterpiece! But Hurry!

UK2This is no joke (although it is extremely awesome!):  A drawing will be held on December 18, 2013 for a Picasso entitled  L’Homme au Gibus (Man in the Opera Hat), completed in 1914.  Here is a copy of the painting:

Tickets cost a mere 100 Euro (approximately $135).  Only 50,000 will be sold.  Proceeds will benefit two Arts and Cultural Projects in a UNESCO World Heritage city in Lebanon.  Tickets can be purchased here: http://www.1picasso100euros.com/?lang=en

Good luck!!

Cariou v. Prince: A victory for appropriation art

The United States Court of Appeals for the Second Circuit reversed a lower court opinion today in the case of Cariou v. Prince and handed another victory to the perhaps surprisingly robust world of contemporary collage artistry and appropriation art generally. 

Left: Patrick Cariou, Photo from Yes Rasta, p. 118; Right: Richard Prince, Graduation

Left: Patrick Cariou, Photo from Yes Rasta, p. 118; Right: Richard Prince, Graduation

The story of the case is relatively straight forward.  In 2000, Patrick Cariou published a book titled Yes Rasta of classical portraits and landscape photographs of Rastafarians that he took over the course of six years while living in Jamaica.  Despite its limited print run, well-known appropriation artist Richard Prince happened across a copy in a bookstore on St. Barth’s in 2005 (more…)