Patents and trade secrets forum question

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For this assignment you will post your answers to the questions in each thread prior to 11:59 p.m. ET on Wednesday at 11:59 pm. Additionally, you must respond to at least two of your classmates posts by 11:59 pm ET on Sunday. Your follow-up posts can add additional insight to a classmate's opinions or can challenge their opinions. Use examples from the readings, or from your own research, to support your views, as appropriate. For your follow-up posts this week, you may wish to visit a couple of the web sites contributed by your classmates and share your opinion of these sites with the class. Be sure to read the follow-up posts to your own posts and reply to any questions or requests for clarification. You are encouraged to conduct research and use other sources to support your answers. Be sure to list your references at the end of your post. References must be in APA citation format. All posts must be a minimum of 250-300 words.




Read the case study on pp. 198-199 of the textbook and answer the following questions:



1. If you are reading a web page about a particular topic and see related advertisements appear along the side of the page, do you feel the advertising constitutes an invasion of your privacy? What if the advertisements were generated not only on the basis of content on the page you are currently viewing, but on the basis of the most recent 5 or 10 web pages that you viewed?



Read the case study on pp. 221-222 of the textbook and answer the following questions:



2. According to the court, did Byce acquire the source code through improper means? Why or why not?



3. What do you think of Byce's negotiation tactics? If you were in Byce's position, what other options might you have considered?

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11/27/18, 6)51 PM PRINTED BY: daryl.snipesjr@gmail.com. Printing is for personal, private use only. No part of this book may be reproduced or transmitted without publisher's prior permission. Violators will be prosecuted. 197 198 HYPERPHRASE TECHNOLOGIES, LLC v. GOOGLE, INC.: 260 Fed. App’x 274 (Fed. Cir. 2007) MICHEL, CHIEF JUDGE I. BACKGROUND A. The Accused Products AdSense is a service that coordinates advertiser content with contextually related webpages. Advertisers supply Google with online advertisements to display on the Internet via AdSense for a fee. Similarly, websites enroll in the AdSense service and allow AdSense to display such advertisements on their webpages in exchange for fees from Google. When a user accesses a webpage on one of these websites, AdSense automatically scans the webpage’s content. It reads all of the words on the page and conducts a statistical analysis of them—for example, it will look for frequently repeated words and for certain recognized combinations of words, such as “Federal” and “Circuit” together as “Federal Circuit.” From this data, AdSense attempts to discern the general topic or topics of the webpage’s content by comparing the results of the statistical analysis to its list of millions of possible topics. AdSense also simultaneously conducts a separate analysis to determine if the webpage contains any keywords known to match to advertisements in AdSense’s database. AdSense uses the results of these two analyses to select a group of candidate advertisements.22 Still another analysis is then done to choose the advertisement to display on the webpage at that time; this analysis is based on such factors as which advertisers paid the highest fees and which advertisements are the most likely to be clicked by users (AdSense fees are in part based on the number of clicks). Because these factors are largely independent of the content of the webpage, the advertisements displayed can be different each time the same webpage is accessed, even if within seconds. https://jigsaw.vitalsource.com/api/v0/books/1133173500/print?from=198&to=199 Page 1 of 7 11/27/18, 6)51 PM B. The Patents-In-Suit . . . The Patents-In-Suit are members of the same family of patents and relate to systems and methods for contextually linking related computerized records…. All but three of the claims asserted here include limitations requiring at least one “data reference,” “record reference,” “specifying reference,” or “reference.” The parties agreed, and the district court correctly held, that all of these terms are used interchangeably and have the same meaning. Claim 26 of the ’298 patent is representative; it claims: A method for linking first record references to a first record wherein the references are in a second record, the method used with a database (DB) including at least one address format specifying an address format of the first record address, the method comprising the steps of: (i) receiving the second record; (ii) analyzing the second record to identify references to the first record; and (iii) when a first record reference is identified, using information from the second record to form the address of the first record as specified by the address format. ’298 patent cl.26 (emphases added). [THE HOLDINGS IN THE DISTRICT COURT] The district court held that the definition of “data reference” was set forth in the ’321 patent’s specification and was intended to govern all of the Patents-In-Suit: “[A] unique phrase or word which may be used in a record to refer to another record or record segment.” ’321 patent col.8 ll.30-32…. The court also held that AdSense does not infringe the asserted claims because it … lacks data references. The court rejected the idea that either the webpage or the ultimately selected advertisement “refer” to the other. Rather, the court held, the linking between them is done based on predictions of user interest and “has nothing whatever to do with a reference in one record to a second record.” … https://jigsaw.vitalsource.com/api/v0/books/1133173500/print?from=198&to=199 Page 2 of 7 11/27/18, 6)51 PM [T]he district court also rejected Hyperphrase’s doctrine of equivalents [argument] as to … the “data reference” … [limitation]…. II. DISCUSSION … B. Infringement … 2. AdSense [T]he district court essentially held that neither AdSense’s topics nor its keywords refer to any https://jigsaw.vitalsource.com/api/v0/books/1133173500/print?from=198&to=199 Page 3 of 7 11/27/18, 6)51 PM PRINTED BY: daryl.snipesjr@gmail.com. Printing is for personal, private use only. No part of this book may be reproduced or transmitted without publisher's prior permission. Violators will be prosecuted. 198 of the records ultimately linked to them; thus, neither the topics nor the keywords are 199 data references within the meaning of the Patents-In-Suit. We agree and therefore affirm this holding. When AdSense determines that a given webpage is ‘about’ a certain topic based on its statistical analysis of the words on that page, that topic is not necessarily itself found anywhere on that page. For example, in the case of a webpage dedicated to Elvis Presley’s movies, AdSense could determine that the topic on its list of possible topics that most closely matches the subject of the webpage is “Rock Music Artists,” even though that phrase never appears anywhere on the page. Furthermore, AdSense could determine that an advertisement for Apple, Inc.’s iTunes online music store will be displayed because it generally relates to “Rock Music Artists” and Apple’s advertisements are more likely to be clicked by users (thus generating more revenue for Google) than other companies’ advertisements relating to the same topic. The phrase “Rock Music Artists” cannot reasonably be said to refer to an iTunes advertisement in the manner of the data references of the Patents-In-Suit. Most importantly, the phrase “Rock Music Artists” did not directly determine what advertisement was chosen, but rather the deciding factor was the predicted popularity of Apple’s advertisements. Thus AdSense’s topics are not data references within the meaning of the Patents-In-Suit. Similarly, AdSense’s keywords do not determine and do not refer to the advertisement ultimately chosen. Returning to the previous example, if AdSense identifies the word “girls” (from the Elvis Presley film “Girls! Girls! Girls!”) as a known keyword, it may correlate “girls” with “Rock Music Artists” and select an advertisement for the latest album of the all-male band “Boys Like Girls” because the band’s record label agreed to pay premium rates to Google. Again, the word “girls” cannot reasonably be said to refer to an advertisement for a Boys Like Girls album in the manner covered by the PatentsIn-Suit. And the choice of the album advertisement over other advertisements relating to the keyword and the topic is based on completely unrelated factors such as the rates at which certain advertisers agree to be charged for the AdSense service. Thus keywords are also not data references. https://jigsaw.vitalsource.com/api/v0/books/1133173500/print?from=198&to=199 Page 4 of 7 11/27/18, 6)51 PM [INFRINGEMENT UNDER THE DOCTRINE OF EQUIVALENTS] We further hold that AdSense does not infringe any of the asserted claims of the PatentsIn-Suit under the doctrine of equivalents. Both AdSense’s topics and keywords are so far afield of the meaning of “data reference” as used in the asserted claims that no reasonable fact-finder could conclude that AdSense performs substantially the same function in substantially the same way. See Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605 (1950) (holding that an equivalent must “perform substantially the same function in substantially the same way to obtain the same result”). CONCLUSION For the reasons provided above, we affirm the district court’s grant of summary judgment that AdSense does not infringe any of the asserted claims of the ’298 and ’321 patents. CASE QUESTIONS 1. How many analyses are performed by AdSense when matching advertisements to webpages? De scribe each. 2. Did Google prevail in this case because the patents were invalid as anticipated, invalid as obvious, un enforceable, not infringed, or some other reason? Be sure to address whether more than one of these defenses applied. 3. Ethical Consideration: If you are reading a web page about a particular topic and see related adver tisements appear along the side of the page, do you feel the advertising constitutes an invasion of your privacy? What if the advertisements were generated not only on the basis of content on the page you are currently viewing, but on the basis of the most re cent 5 or 10 web pages that you viewed? Remedies Remedies available to patent owners who prevail in court include damages, attorney https://jigsaw.vitalsource.com/api/v0/books/1133173500/print?from=198&to=199 Page 5 of 7 11/27/18, 6)51 PM fees, and injunctions. Damages and Attorney Fees Plaintiffs that prevail in patent suits are entitled to damages (monetary compensation), which may be calculated by the court or jury as profits the plaintiff would have earned if not for the infringement. Where lost profits https://jigsaw.vitalsource.com/api/v0/books/1133173500/print?from=198&to=199 Page 6 of 7 11/27/18, 6)51 PM PRINTED BY: daryl.snipesjr@gmail.com. Printing is for personal, private use only. No part of this book may be reproduced or transmitted without publisher's prior permission. Violators will be prosecuted. 199 200 https://jigsaw.vitalsource.com/api/v0/books/1133173500/print?from=198&to=199 Page 7 of 7 11/27/18, 6)52 PM PRINTED BY: daryl.snipesjr@gmail.com. Printing is for personal, private use only. No part of this book may be reproduced or transmitted without publisher's prior permission. Violators will be prosecuted. 220 221 JUSTMED, INC. v. BYCE: 600 F.3d 1118 (9th Cir. 2010) [FACTS] Fletcher, Circuit Judge: Joel Just and Michael Byce are former brothers-in-law who together developed the idea of a digital audio larynx, a device to help laryngectomees—individuals whose larynxes have been surgically removed—produce clearer speech… Just and Byce brainstormed ideas for how to advance such devices … and, in 1995, they applied for a patent as coinventors of a “system and method for monitoring the oral and nasal cavity,” which was issued to them in 1998… [I]n 2003, Joel [Just]… formed JustMed, Inc., based in Beaverton, Oregon, to continue development of the product. Byce ultimately invested $25,000 in return for 130,000 shares. Byce also accepted a position on JustMed’s board of directors, serving with the Justs. Just and [a business associate] worked full time developing a new hardware prototype and writing source code for the product… Since it was not yet producing a product, the company operated financially by selling shares to family members and by relying on loans from the Justs. [After the Just’s business associate departed, Byce took over development of the source code and rewrote substantially all of it. Byce later became concerned that Just did not view him as an equal in the corporation despite his $25,000 investment and efforts in creating the source code, and changed the copyright notice on the software so that it read “© Mike Byce 2005” instead of “© JustMed.” Just before Joel Just was scheduled to meet with a potential merger or buy-out partner, Byce deleted all copies of the source code from JustMed’s computers in order to gain leverage over Just in Byce’s efforts to acquire a greater share of the company. Byce testified that he did so after seeing a spreadsheet showing a large disparity between the number of shares Byce owned and the number of shares that the Justs and their business associate owned. The court https://jigsaw.vitalsource.com/api/v0/books/1133173500/print?from=221&to=222 Page 1 of 6 11/27/18, 6)52 PM concluded that Byce was an employee and that under the copyright law’s work for hire doctrine (see Chapter 55) the software was therefore owned by the employer, JustMed.] [MISAPPROPRIATION OF TRADE SECRETS] Idaho has adopted a slightly modified version of the Uniform Trade Secrets Act (UTSA). Significant for our purposes, Idaho explicitly includes a definition of “computer program” as a protectable trade secret… The Act defines misappropriation as: (a) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (b) Disclosure or use of a trade secret of another without express or implied consent by a person who … (B) At the time of… use, knew or had reason to know that his knowledge of the trade secret was … (ii) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use … The term “trade secret” means information, including a formula, pattern, compilation, program, computer program, device, method, technique, or process that derives independent economic value … from not being generally known to, and not being readily ascer-tainable by proper means by, other persons who can obtain economic value from its disclosure or use and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Improper means, in turn, include theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means… [ACQUISITION] We find that Byce did not “acquire” the source code through improper means because he already had possession of it as an employee.13 … [H]owever, he did acquire it “under circumstances giving rise to a duty to maintain its secrecy or limit its use” [i.e., subsection (b) (B)(ii) —Eds.]. Thus, if Byce used or disclosed the trade secret, he is liable https://jigsaw.vitalsource.com/api/v0/books/1133173500/print?from=221&to=222 Page 2 of 6 11/27/18, 6)52 PM for misappropriation. https://jigsaw.vitalsource.com/api/v0/books/1133173500/print?from=221&to=222 Page 3 of 6 11/27/18, 6)52 PM PRINTED BY: daryl.snipesjr@gmail.com. Printing is for personal, private use only. No part of this book may be reproduced or transmitted without publisher's prior permission. Violators will be prosecuted. 221 222 [DISCLOSURE] Although Byce disclosed a portion of the source code to the Copyright Office … disclosure of a portion of the source code to the Copyright Office, in itself, is not necessarily inconsistent with maintaining the secrecy and value of the trade secret… [USE] Besides filing for a copyright and threatening to withhold the source code [from JustMed], Byce made no other “use” of the source code. Rather, Byce obtained leverage over negotiations with JustMed by deleting all copies of the source code from JustMed’s computers, giving Byce exclusive possession. While Byce threatened misappropriation, his actions did not rise to the level of misappropriation… Nonetheless, under Idaho law,” [a] ctual or threatened misappropriation may be enjoined.” [CONCLUSION] [W]hile damages for misappropriation of a trade secret are inappropriate here because of the lack of “use” or “disclosure” as contemplated in the context of trade secret protection, the district court may grant an injunction against Byce’s threatened use or disclosure of the source code if appropriate. We remand to the district court to allow it to make this determination … In addition, while damages are not appropriate under the ITS A [Idaho Trade Secrets Act], we remand to the district court to determine whether JustMed can recover damages under either the conversion or breach of fiduciary duty claims. CASE QUESTIONS 1. According to the court, did Byce acquire the source code through improper means? Why or why not? 2. What use did Byce make of the source code? Did Byce disclose the source code to https://jigsaw.vitalsource.com/api/v0/books/1133173500/print?from=221&to=222 Page 4 of 6 11/27/18, 6)52 PM anyone? Why didn’t Byce’s use or disclosure constitute misappro priation, according to the court? 3. Ethical Consideration Consideration: What do you think of Byce’s negotiating tactics? If you were in Byce’s position, what other options might you have considered? Suits Based Upon Inevitable Disclosure Section 2 of the UTSA authorizes courts to enjoin actual or threatened misappropriation. Under the inevitable disclosure doctrine, a court may enjoin a departing employee from accepting employment at a competing enterprise if there is a high probability that the employee would inevitably use or disclose the former employer’s trade secrets to the benefit of the new employer. Inevitable disclosure is more likely to be found where the similarities between the businesses are such that the employee could not reasonably be expected to perform the duties of the new position without relying on trade secrets of the previous employer. One court famously compared the plaintiff in an inevitable disclosure case to “a coach, one of whose players has left, playbook in hand, to join the opposing team before the big game.”14 However, it should be noted that while employees may be enjoined from prospective employment based on the inevitable disclosure of a former employer’s trade secrets, such injunctions are relatively uncommon. Moreover, employees are free to use the general knowledge and skills gained in their former position. The line between general knowledge and skills on the one hand and trade secrets on the other may be difficult to draw, and may ultimately need to be determined by a court. By authorizing injunctions as to prospective employment, the inevitable disclosure doctrine can reinforce a covenant not to compete or, in the absence of such a covenant, may be used by a trade secret plaintiff to achieve a similar result. In IBM Corp. v. Paper- master, below, a New York court had to decide whether to apply the inevitable disclosure doctrine to prevent a chip design guru and 26-year veteran of IBM from accepting employment with Apple Inc. Recall that New York has not yet adopted the UTSA, and so the court had to instead apply the judicially created common law of trade secrets that guide New York courts. https://jigsaw.vitalsource.com/api/v0/books/1133173500/print?from=221&to=222 Page 5 of 6 11/27/18, 6)52 PM PRINTED BY: daryl.snipesjr@gmail.com. Printing is for personal, private use only. No part of this book may be reproduced or transmitted without publisher's prior permission. Violators will be prosecuted. 222 223 https://jigsaw.vitalsource.com/api/v0/books/1133173500/print?from=221&to=222 Page 6 of 6
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hey buddy, here is the complete paper. go through it and in case of anything, feel free to alert me.

Running head: PATENTS AND TRADE SECRETS

Patents and Trade Secrets

Student’s Name
Institutional Affiliation

PATENTS AND TRADE SECRETS

2

1. If you are reading a web page about a particular topic and see related advertisements
appear along the side of the page, do you feel the advertising constitutes an invasion of your
privacy? What if the advertisements were generated not only bs ofy content on the page
you are currently viewing but by the most recent 5 or 10 web pages that you viewed?
As a person who likes surfing the internet several times in a day, I have been living with
the fear of my privacy being exposed to the public due to the appearance of the advertisements
on my web pages. Apart from the fear, the advertisements also got me annoyed because they are
always about the promotion of things that are not within my preferences and concerns. I could
not stop wondering why the advertisements were always able to access the web pages that I have
visited. I felt that the adverts had got close to me and probably their controllers we...


Anonymous
Very useful material for studying!

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