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You confuse something inherent to the design with trademark dress: "It uses a distinctive configuration of layout elements, text styles, and interactive elements."

Yet the US Supreme Court ruled that design, in and of itself, in the product, can not be inherently distinctive. The website can not "use" a distinctive configuration because such is not and can not be recognized in a court of law, because it doesn't exist. Any such mutterings are irrelevant.

However, one can acquire secondary meaning. While it is meaningless to say the design is distinctive, it is not impossible on its face that secondary meaning has developed, "which occurs when the public recognizes that the primary significance of the trade dress is identification of the product's source, not the product itself."

To summarize: regardless of how much you like the style, it can't (ever, by definition) have inherent distinctiveness. There is no such thing. Its only over time, as perception gathers in the minds of men, that a design can gain secondary meaning. Again, this is *not* inherent to the design. Design has no inherent distinctiveness.

Without being a lawyer I'm guessing the closest thing we'll get to a criminal case is the possibilty of piercing the corporate veil because of the Lanham Act violations brought on by IBM. The board or parts of it could very well become personally liable for their actions if that works out... they (IBM in this case) have to prove that false or misleading statements were made, that the the statements were used in commercial promotion/advertisment and there must have been a likely injury. If the false/misleading statements were made then the two other points are pretty obvious to me. They went on a telling everyone how they had been done wrong by IBM (if they would sign an NDA) during a promotion tour... and with all the publicity surrounding the case the likelyhood of injury is very very high.

Google for yourself or see some more at http://www.rkmc.com/Lanham_Act_Also_Applies_to_Fal se_Advertising_Claims.htm

http://www.rkmc.com/Lanham_Act_Also_Applies_to_Fal se_Advertising_Claims.htm

The only problem is that patent litigation tends to be expensive and Microsquish has lots of money.

(Oh yeah. IANAL, YMMV, this does not constitue legal advise, check your shorts, ...)

Cheers,
Dave

Yes, he did. Have a look:

Under the DMCA it is a felony to (1) circumvent a technical measure such as an encryption lock that copyright owners use to control access to their works or prevent copying of their works, (2) make or distribute a tool that circumvents access controls, or (3) make or distribute a tool that bypasses other technical measures used by copyright owners to protect rights in copyrighted works. 17 USC 1201, 1204.

He used a software circumvention tool to gain access to locked media files for which he does not hold the copyright. We have his confession. This is an open and shut case. Why has he not been pursued by law enforcement? Further, he linked to the program that allowed him to do this. Linking to circumvention devices was ruled illegal in Universal v. Reimerdes. The decision was upheld on appeal. In short, I believe that's two felony counts under the DMCA. He has since removed the link and destroyed the evidence of his crime:

So for now, I'm deleting the files and the program and will inquire of folks who know more about the legal aspects.

I'm not entirely certain of the seriousness of this crime, but, given his actions, he is a serious threat to our 'Intellectual Property' based society. He should be dealt with swiftly, yet this happened almost a month ago. He is still out there roaming the internet! What good are laws if they aren't enforced? As upright citizens of this great nation, we should DEMAND justice. This criminal is loose out there somewhere and needs to be imprisoned before he hurts any other intellectual property holders. Please! Won't someone think of the intellectual property holders!?

Because, after the evidence and testimony was presented to the judge in court it was proven that it wasn't prior art.

The other often-cited "prior art" is the Viola software which Pei Wei claimed anticipated the Eolas invention. The fact is that Wei was asked to demonstrate that software during the trial, and in the process was confronted with the fact that it never actually worked the way he's always claimed it did. Microsoft got caught tring to rig the demo so as to hide this fact. This article gives a colorful description of Wei's failed attempt being exposed on the witness stand.

From the looks of this, it seems that the real reason that the "prior art" was thrown out was that Pei Wei was lying about how Viola had worked in 1993, and Microsoft's witnesses got caught trying to fake the evidence to hide that fact.

Is everyone on /. so brainwashed by the anti-patent groupthink here that you can't recognize the real message in this announcement? What this announcement tells us is that Microsoft has been either forced by their customers to keep the infringing technology in Windows or they've concluded that their proposed IE patch actually doesn't avoid infringement. Microsoft's statements concerning the "legal status" are merely spin to redirect attention away from their failure and towards a questionable action by the (recently-resigned) Patent Commissioner.

The circumstances surrounding the Patent Office's reexam are quite fishy. Commissioner Rogan granted the reexam the day after it was requested by Sir Tim. The judge in the case comments on this in his recent ruling:

"One possible reason to believe that the reexamination would not take long is that, according to the Deputy Commissioner for Patent Examination policy, the reexamination was triggered by a ?substantial outcry? from the Internet community. The most prominent among the creators of the Web, Sir Timothy Berners- Lee, expressed the view that the PTO had missed clear prior art. Judging from the record before me, it is safe to say that some of the outcry arises from the view of a significant portion of Web experts, including Berners-Lee, that royalties ought not to be paid patented Web innovations. This contingent believes instead that Web invention is for the good of humanity and not the inventor. If this is the true reason for the reexamination, then I doubt the reexamination will take very long."

When the judge refers to "the record before me" he is talking about the facts that the two references that Berners Lee cited to the PTO were both exhibits at the trial and that Dave Raggett, the author of those two references, actually testified at the trial. Raggett's testimony showed that he hadn't even considered "interactive processing" in what he proposed in 1993. For this and other technical insufficiencies, Microsoft chose to drop the Raggett references from the case. The fact that those two references are the best that Berners Lee could come up with doesn't bode well for Microsoft's chances.

The other often-cited "prior art" is the Viola software which Pei Wei claimed anticipated the Eolas invention. The fact is that Wei was asked to demonstrate that software during the trial, and in the process was confronted with the fact that it never actually worked the way he's always claimed it did. Microsoft got caught tring to rig the demo so as to hide this fact. This article gives a colorful description of Wei's failed attempt being exposed on the witness stand.

It's funny how these facts never seem to make it into the Microsoft-controlled press.

There might also be a claim for tortious interference. Here's an example under Georgia law that's more to the point.

See more here at California Public Policy Against Enforcing Non-Compete Agreement Trumps Employment Contract "Choice of Law Provision".