Can a Patent Violate Rights of Publicity?

35 thoughts on “Can a Patent Violate Rights of Publicity?”

1. 11

   Great food for thought, Dennis.

   While the patent you mentioned dates back to 2009, FB was even more recently (2018) doing something very similar in US20190205942 (see Figures 6 and 8-11).

   Regardless, these are good examples of why drafters should not be utilizing real life personas in patent applications.
2. 10

   Right of publicity claims generally involve misappropriation of someone’s identity for commerical exploitation. Like appearing in an advertisement. I am dubious that using someone’s photo in a patent application in this manner (to illustrate how the technology works) would qualify.
   1. 10.1

      I am not so sure the leap could not be made, as (it should be clear) patents MAY be pursued for financial gain. The ‘counter’ to an argument of “well, anyone’s picture would do” could be met with “but you did not use just anyone’s, and in context you used mine for the publicity of it — in a manner that offends me, and why the tort exists. Look, even a patent law blog notices the publicity you obtained by your choice.”

      On the other hand, would it be ‘new matter’ to ‘correct’ the inclusion with anonymized items?
3. 9

   Reluctantly returning to the actual question here – is it an actionable “right of publicity” violation to use someone’s name in their social media tweet in a patent drawing? Doesn’t that fail the essential requirement of use for commercial purposes? There is no product sale or other commercial use here. The names in the patent drawing do not effect the patent value or provide any other commercial benefit.
   [Not to be confused with putting a known scientist name on a patent as one of the named joint inventors without their permission, but the only place I ever experienced that, and being told it was legal, was in an Australian patent application once.]
   1. 9.1

      Thanks Paul – this is why I asked my question at post 6.1.

      I asked in earnest, as Rights of Publicity is outside of my bailiwick.
4. 8

   “it is hard to believe that this patent issued since claim 1 just seems obvious AND likely fails the Alice test.”

   I was all revved up to blame Iancu’s test for a 10,xxx,xxx series issue, but that’s not what happened here. The first NoA in the family was mailed a few months after Alice.
   1. 8.1

      “I was all revved up to blame Iancu’s test for a 10,xxx,xxx series issue, but that’s not what happened here. The first NoA in the family was mailed a few months after Alice.”

      ????

      This is off in so many ways.

      First, you should not be blaming anything on Iancu’s test.

      Second, a 10,xxx,xxx series issue is still to be examined under controlling law. And in the area of 101, the Court has refused to recognize that it has actually re-written the statutory law, so TO YOU (the Royal You), any 10,X would be evaluated under current 101 guidelines.

      How long have you been an examiner?
5. 7

   Legal or not, FB made a big mistake using real people in this (and other?) apps / patents.

   A big mistake.

   As for the claims being Alice-eligible . . . well . . . of course they are . . . ’cause . . . ’cause . . . ’cause . . . its Facebook.

   And in today’s America, Facebook gets what it wants, when it wants it.

   Including patents.
   1. 7.1

      “As for the claims being Alice-eligible . . . well . . . of course they are . . . ’cause . . . ’cause . . . ’cause . . . its Facebook.”

      Adjust your hat, the tinfoil is showing.
      1. 7.1.1

         Ben — please point to any FB apps in which they weren’t awarded a patent after receiving a 101 rejection (real question — I’d like to review them).

         Because (though I’m sorry but I don’t have the time to look up such), I’ve seen more than 30 patent-app innovations over the past three years from independent inventors and small tech companies who were unable to so overcome. And yes, they all had excellent legal representation fighting for them.
      2. 7.1.2

         To think that the power of Big Tech does not extend to preferential treatment and seek to dismiss as “tinfoil” is to show an unduly dismissive view of powers extant.

         You reveal more about yourself Ben than you realize as you attempt to impugn someone else. Again.

         Were you one of those that denied SAWS even after the Office came clean? And then denied the effects of SAWS?
6. 6

   No. The answer is no.
   1. 6.1

      To you, what would constitute a violation of one’s right of publicity?
7. 5

   As to why this patent issued, note that it says: “This application is a continuation of pending U.S. application Ser. No. 13/802,779, filed Mar. 14, 2013, which is a continuation of U.S. application Ser. No. 12/646,838, filed Dec. 23, 2009, which is incorporated by reference in its entirety.”
   I.e., a combination of examiner-wearing-down-persistence, claim changes, and pressure on examiners to get such old applications off their dockets?
   1. 5.1

      “Examiner wear down” — a myth that must be exterminated.
      1. 5.1.1

         Interested on why you think it is a myth? Do you not believe that the maxim “if you can’t dazzle them with your brilliance, baffle them with bull****” is sometimes a strategy employed in response to office actions?
         1. 5.1.1.1

            Whether such is the case or not is entirely divorced from any concept of “wear.”

            There is NO “wear” on an examiner that properly does their job.

            ZERO – no matter how many RCE’s are filed.

            … and fyi, the RCE tally is as follows:
            12646838: 2 (both in 2014)
            13620351; (separate, divisional from 1264838): 1 (2015)
            13802779: 2 (2016 and 2017)
            16151059: 0

            And this is back in the “glory days” of the churn of the RCE gravy train.

            Paul’s “viewpoint” is that of one that seeks out to deny patents – not one that seeks out to protect innovation.
            1. 5.1.1.1.1

               I have recently seen a case where applicants tried to argue with a straight face that an avocado is not a food. That is the type of “baffle them with bull” that would wear me down were I responsible for responding for that level of nonsense.

               How do you even respond to that knowing that you are either arguing with someone who is imbecilic at best or not engaging in good faith at the worst.

               You say Paul’s view is one that seeks to deny patents, could his view not also be of one who is willing to grant patents for what applicants have actually invented instead of what they are pretending to have invented if they would drop the nonsense?
               1. 5.1.1.1.1.1

                  An advocate’s arguments — no matter and especially if they are SO counter factual — have nothing to do and cannot invoke “wear down” to an examiner properly doing his job.

                  Your job is to examine under the law.

                  Yes, you must give full and proper treatment to the arguments provided by applicants.

                  That simply does not include ANY sense of “wear down.’

                  How do you “even respond?”

                  Is that even a question?

                  You respond as you are supposed to respond.

                  You do not — and never have — controlled “in good faith” and you clearly note your response on the merits and move on.

                  And no, I fully reject your “could be actually” stance. There is no need, nor as I have shown in THIS instance with the RCE counts, ANY indication that such subjective nonsense has any bearing on the matter.

                  An examiner’s view — indulging in that type of subjective ‘feeling’ is simply out of place with doing Your job (the Royal Your) appropriately. You examine what is in front of you. You answer arguments on their points. You do your job. There is NO such thing as “wearing down,” and anyone buying into that trope needs to be corrected.
                  1. 5.1.1.1.1.1.1

                     Ah yes. I’m glad patent examiners have been updated to be unfeeling mindless automatons. If you don’t believe applicants claim things wildly outside the scope of what they have actually invented (*cough* lying about what they have invented *couch*) then I’m not entirely sure how many patent applications you’ve ever seen. There is a difference between ideal reality and actual reality. Refusing to admit that wear down is an actual reality even if it shouldn’t be is just a nonsensical stance.

                     Enjoy some reading and brush up. link to ir.lawnet.fordham.edu pp. 964-965
                     1. …

                        “Brush up” on academic
                        C
                        R
                        A
                        P….

                        Wow. Your situation might be worse than I first thought.

                        You might be an academic.

                        How about you brush up on reality, the history of science and technology and actual practice of innovation protection instead of retreading the academic dogma and groupthink that is so incestuously self-cycled in your current diet?
               2. 5.1.1.1.1.2

                  Further, instead of (as it appears) joining in on a lazy excuse (B-b-but I did not do my job because I was worn down), you should be taking the suggestion as an insult to your professionalism.
                  1. 5.1.1.1.1.2.1

                     I’m not an examiner. I think applicants practicing “baffle them with bull” is an insult to other inventors who have actually invented something instead of just pretending to invent something like you see nowadays. Reciting a laundry list of fantasy items should not be considered enablement, yet here we are.
                     1. …

                        Let me guess, you are either a litigator (without a reg number or experience using one) or you are one of those bio “picture claims are the only real claims” guys.

                        to the max
   2. 5.2

      “I.e., a combination of examiner-wearing-down-persistence, claim changes, and pressure on examiners to get such old applications off their dockets?”

      Except that in the original application, the NoA was mailed only 16 months after the first action. Just because the applicant can sometimes be at fault for a bad patent, doesn’t mean that they’re always at fault. This examiner’s approach to 101, back in those dark days of 2014-2016, is downright baffling.

      Also, for better or worse, I don’t believe there is much “pressure” to dispose of old applications. I have never felt such pressure, and most of management seems to pretend that MPEP 707.02 doesn’t exist.
      1. 5.2.1

         Ben, I have to sadly partially agree with “.. I don’t believe there is much “pressure” to dispose of old applications. I have never felt such pressure, and most of management seems to pretend that MPEP 707.02 doesn’t exist.”
         Worse, the dishonest pretense of some in the PTO over the years that the true docket pendency of applications only runs from their very latest continuation RE-filing date. Only Director David Kappos ever responded to my complaints about grossly long pendency patent applications and took effective actions.
         As to Anon’s argument that examiner-wear-down is a myth, it’s enshrined in at least one oft-quoted old judicial opinion.
         1. 5.2.1.1

            “it’s enshrined in at least one oft-quoted old judicial opinion.”

            That means nothing, Paul.

            Seriously – nothing.
8. 4

   So the patent was granted because Chris Sacca’s name was mentioned in it.
   I should use him in all my applications.
   1. 4.1

      or you can avoid some of the filters on this site by having him Tweet.

      F that, eh?
9. 3

   “In any event, it is hard to believe that this patent issued since claim 1 just seems obvious AND likely fails the Alice test.”

   Should we not be taking every opportunity to avoid the plebeian drive-by colloquiallizing of patent law principles?

   Do we teach people that “seems obvious” is a proper metric?

   One quick glance shows the priority date to trace back to 2009.

   Instead of indulging in a feckless lack of critical thinking “seems,” would not this serve as a better teaching moment as to the legal principle of obviousness and instead ask, would the legal fictional person known as the Person Having Ordinary Skill In The Art considered the claim obvious as of the priority date?
10. 2

    According to Twitter’s policy, you give up any rights to the content when you post something, including third parties, so it makes sense to use a Twitter post. The twitter license allows one “to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods now known or later developed (for clarity, these rights include, for example, curating, transforming, and translating). . . “This license authorizes us to make your Content available to the rest of the world and to let others do the same.”
    1. 2.1

       Yes, it is amazing that not everyone understands that they have no control whatsoever over whatever they themselves posts on social media. And that stirring up controversy and hatred is a social media company traffic and therefore profit incentive.
       1. 2.1.1

          Would I be reading too much into your post to suggest that the profit motive of Big Tech is part and parcel of any “H A T E generating effect” and thus complicit with any acts of inciting insurrection?

          Asking for a friend.
11. 1

    Maybe FB threatened to the accounts of the examiner and the SPE if a notice of allowance wasn’t forthcoming.
    1. 1.1

       …threatened to delete…

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