Home › Posts tagged novel

novel

conversion of data (and not the conversion you’re probably thinking of)

Posted on by — No Comments ↓

Very interesting piece from Duane Morris on a case in New York. My ultra short summary of the summary: Insurance company leases computer to agent. Agent puts all his business and personal data on it. Insurance company terminates agency, takes back the computer and all data on it, and refuses to give the agent access to any of it. Agent sues, loses, but then wins on appeal.

The interesting part is the basis on which he won, which was a claim under “conversion”. Not necessarily incredibly groundbreaking, as other cases have dealt with conversion as applied to intangibles previously, but, as the folks at Duane note:

Under the merger doctrine, a conversion claim will apply to intangible property, such as shares of stock, that are merged or converted into a document, such as a stock certificate. Accordingly, conversion of the certificate may be treated as conversion of the shares of stock represented by the certificate. More recently, the court ruled that a plaintiff could maintain a cause of action for conversion where the defendant infringed the plaintiff’s intangible property right to a musical performance by misappropriating a master recording, a tangible item of property capable of being physically taken.

Thyroff was the Court’s first opportunity to consider whether the common law should permit conversion for intangible property that did not strictly satisfy the merger test. Recognizing that it “is the strength of the common law to respond, albeit cautiously and intelligently, to the demands of common sense justice in an evolving society,” the Court decided that the time had arrived to depart from the strict common-law limitation of conversion.

Interestingly, in their analysis of the decision, they conclude that:

This decision provides a powerful remedy for New York employers to bring a cause of action against employees who steal company information or [intangible] property. Unlike claims for breach of fiduciary duty or misappropriation of trade secrets, conversion may be easier to plead than other claims because it does not require that the employer establish willfulness or wrongful conduct.

Hmmm. Not quite sure I’d agree – after all, the “conversion” itself would need to be established. Also, I’m not sure that a rogue employee who takes a copy of his or her employer’s confidential information but leaves the original copy with their employer, would be the basis for a cause of action under conversion, which, if I understand the case correctly, has more to do with depriving someone of property that is rightfully theirs. Absconding with confidential information does not deprive the owner of that information of the data, but rather the value the owner of the data can realize by virtue of the fact it can only be used by that owner. That situation seems somewhat different than the one in Thyroff – the analogy there would be if insurance company did not deny the agent access to his information, but rather took a copy of it and used it in a way they weren’t supposed to. It would be interesting to see whether the court would extend a claim of conversion to deprivation not of the intangible information itself, but rather value of the rights to exploit it exclusively. Alternatively, it may be that the ruling could be read broadly enough to already take that into account.

I also wonder what sort of effect this might have on those who might have otherwise leapt at the opportunity to become an agent for the insurance company…

Microsoft Patents RSS. Or Tries To. Maybe.

Posted on by — No Comments ↓

Interesting post on someone else’s blog about Microsoft apparently trying to patent RSS:

The applications, filed last June but just made public yesterday, cover subscribing and discovering what Microsoft calls “Web feeds.” That comes as a bit of a shock to anyone who’s been working on RSS, which has its origins in a format developed seven years ago at Netscape Communications.

Microsoft executive Don Dodge, while not involved in the patent applications, says he suspects the filings were made to defend the company against “patent trolls”. (The filings were made shortly before Microsoft announced plans to build RSS technology into its upcoming Vista operating system.) Still, if granted, the patents would give Microsoft a legal cudgel to wield against other companies using RSS.

Well. They do have a point. Generally speaking, I don’t think patent trolls (those that basically file overly broad patents and then sit on them in a dark cave until someone who actually does something useful, and therefore has deep pockets, unwittingly infringes, at which point the troll comes out and clubs them over the head with a lawsuit or settlement) are a good thing. That being said, its ironic that Microsoft feels the need to abuse the system in the same way as patent trolls in order to proactively defend itself. It will be interesting to see how things turn out.

Unfortunately, I’m not necesarily sure that prior art would necessarily invalidate these patents – after all, most of NTP’s patents were more or less considered invalid, but that didn’t stop them from collecting several hundred million from RIM. And its not like there haven’t been other, um, rather broad patents asserted in the past. You know, like back in 2002, when British Telecom asserted ownership of hyperlinks (which they lost) though of course BT doesn’t quite fit the description of a patent troll.

Then again, it begs the question as to who or what should or shouldn’t be considered a patent troll – for example, its well known that IBM has a huge, gigantic, enormous arsenal of patents at its disposal. IBM also actively licenses these patents (and of course threatens litigation where it believes its rights are being violated), but it isn’t necessarily the case that IBM would otherwise have exploited these patents in what I’ll call “active” business – i.e. making and selling something based on the patent as opposed to primarily seeking royalties and licenses from those do – even though IBM does do so in some cases. So does that make IBM a patent troll? What about Philo T. Farnsworth who, arguably, never started producing televisions but instead sought legal claims against others?

My perhaps overly simplistic take on this is that patent trolls are not inherently the problem, but rather the ability, primarily in the US, to register patents that should have never issued in the first place. If someone comes up with a smart, cool, inventive, and truly novel way of doing something, then they should certainly be free to either produce something with it, or sue the living daylights out of someone else who comes along and infringes the IP even if they don’t (or can’t) make productive use of it themselves. Not actively exploiting a patent is not necessarily tantamount to being a bad guy, IMHO.

It will be interesting to see what happens on this front, if anything. If nothing does, then I may well turn to drafting patents, the first being “Method of Utilizing a Rhythmic Cadence in the Expansion and Contraction of Multiple Muscular Groupings to Faciliate Indefinite Continuation of Metabolism of Cell Structures.” I like the sound of that. Yes indeed.