Posts in Guest Contributors

IP Goes Pop! – Intellectual Property and a ‘Wacky’ Professor – Brands and Inventions in the Springfield Universe, Part II

This week on IP Goes Pop! co-hosts Michael Snyder and Joseph Gushue are joined by fellow intellectual property attorney and Volpe Koenig Shareholder, Randy Huis, to once again visit the town of Springfield in the fictional, but full of real fun, world of The Simpsons. Patents on candy, robots, and other inventions that may sound more like they are out of a writer’s room rather than based on an inventor’s technical notebook get filed with the Patent Office every day. In this episode listeners will get a taste of just how much intellectual property can come out of, or be inspired by, popular culture.

High-Risk, High-Capital Investments Lead to Breakthrough Cancer Treatments

Everyone knows someone whose life has been impacted by cancer, be it a parent, a sibling, or a friend. But it is rarer, perhaps, to know a family touched by pediatric cancer. Yet, cancer is the second leading cause of death in individuals under 14, impacting nearly 10,500 children annually in the United States. Fifty years ago, a child diagnosed with cancer had a median five-year survival rate of only 58%. But, thanks to biopharmaceutical companies’ investments in discovery science, we’ve achieved medical breakthroughs that drastically improved the survival rate, with 85% of childhood cancer patients living five years or more.

The Supreme Court is Set to Hear a Copyright Case with Big Implications for U.S. Tech Innovation

The U.S. Supreme Court (SCOTUS) is set to hear Andy Warhol v. Lynn Goldsmith in October. It will be the latest in a series of cases the Court has taken on over the last decade-plus that promise to change U.S. innovation as we know it. The case will be heard on the heels of other controversial SCOTUS decisions that have drastically changed the legal landscape, with rulings that transfer power from the federal government to the individual states (Dobbs v. Jackson Women’s Health Organization) or that reduce federal oversight altogether (West Virginia v. EPA). It has also put limits on specific executive powers and plans to rule soon on affirmative action. Not getting as much attention, but arguably equally important, are some recent and not-so-recent decisions that have changed the landscape of the rights of authors and inventors, and the upcoming Warhol case, which may effectively remove them altogether. Unfortunately, many people, including politicians and academics, don’t understand—or refuse to recognize the importance of—intellectual property rights for the advancement of civilization.

Miami Beware: Patent Clouds Are Quickly Approaching the Sunshine State

“How can I help?” Not even the mayor of Miami could have predicted the effect those four simple words would have on the city traditionally known for its palm trees and nightlife. But that tweet, sent by Mayor Francis Suarez in December 2020, caused a tech hurricane to touch down in the South Florida area. The tweet, shown below, was in response to a San Francisco venture capitalist who (likely somewhat facetiously) suggested that Silicon Valley be moved to Miami.

Patent Filings Roundup: Jeffrey Gross Assertion Tests West Texas Order; Failure to Serve Leads to Taasera Declaratory Judgment; Farm Software Dispute Sparks Suit

There were 33 Patent Trial and Appeal Board (PTAB) proceedings (all inter partes reviews [IPRs]), with just 42 new district court patent filings this week. That, coupled with 67 terminations, suggests that either it’s the summer doldrums, or the Western District of Texas/Waco reshuffling order is having an immediate impact on filings, as would-be plaintiffs reassess venue choices—at least in the short term. Of the terminations, a large chunk are IP Edge (per usual); the IPRs represent mostly defendants in litigation challenging claims asserted against them, with a few notable exceptions. In the district courts, a new Jeff Gross entity was the biggest filer, with some other activity highlighted below. One entity, Alidouble, appears to have ties with both Israeli and Hong Kong-based predecessors-in-interests, with Hong Kong-based Keystone Intellectual Property Management recorded.

Understanding ‘NNN’ Agreements in China

An “NNN” agreement is short for Non-Disclosure/Non-Use/Non-Circumvention agreement, which means the information cannot be shared with anyone, it cannot be used in any way, and “behind-the-back” or design around tactics are forbidden. In recent years, signing NNN agreements has become widely adopted and is now the standard initial step in dealings with Chinese companies, particularly original equipment manufacturers (OEMs). An NNN Agreement is much more than just a Non-Disclosure Agreement (NDA). An NDA focuses narrowly on preventing secret information from being revealed to a third party or to the public, which is not sufficient for OEMs in China. In contrast, an NNN agreement not only contains confidentiality provisions, but also prevents misuse of confidential information.

Blockchain IP: DAOs Are Innovative—But Will They Be Inventors?

Intellectual property (IP) provides us a front row seat to the cutting-edge of technology. The legal questions arising at this frontier are often as complex as the resulting inventions and creative works. The Federal Circuit’s recent Thaler v. Vidal opinion clarifies an important patent law concept, specifically whether an artificial intelligence (AI) may be listed as the inventor of a patent. The current industrial revolution powered by blockchain and crypto continues to raise issues about how it meshes with our current IP legal framework…. The latest question at the cutting-edge of “who, or what may, be an inventor” begs whether a decentralized autonomous organization (DAO), a new type of digital blockchain-based organization, can participate in IP-related activities, including the invention, ownership, licensing, and enforcement of patent rights.

Certification Marks: The Tie that Binds Scotch Whisky, the International Ladies Garment Worker’s Union and a Rated R Motion Picture

A Certification Mark is a name, symbol and/or logo used by groups (associations, unions, organizations, trade groups, etc.) to show that the product or service to which it is attached complies with industry or associations standards. A Certification Mark can be used to indicate that a product claiming to be from a region, is in fact from that region (Roquefort Cheese). A Certification Mark can be used to indicate that a product is in fact made with the materials it claims to be (Wool). A Certification Mark can be used to assure that certain standards a product boasts of are true (Energy Efficiency, 100% Recycled). A Certification Mark can be used to help parents decide whether to take their children to a certain motion picture (The Rating System). The purpose of a Certification Mark is therefore, to certify and not to own or indicate source.

Win for Photographer in Ninth Circuit Reversal of Fair Use Finding

On August 3, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in McGucken v. Pub Ocean Ltd. that reversed a Central District of California’s sua sponte grant of summary judgment to Pub Ocean on McGucken’s copyright infringement claims. The case involved Pub Ocean’s unauthorized use of photos of a lake that formed in Death Valley, California, in March 2019. The Ninth Circuit found that all of the fair use factors weighed against a determination that Pub Ocean’s unlicensed use of the photographs were transformative.

Blow to AI, Clarity for Humans: Key Insights from the DABUS Rulings

The August 2019 announcement that two patent applications had been filed naming an artificial intelligence (AI) algorithm as an inventor in the United States and a dozen other countries was regarded as disruptive and profound at the time. It was one of the hot topics in patent law during those last few months before the pandemic. But since then, given all the other crazy and disorienting stuff that has happened in the world, we have become desensitized to the question, even if it is just as radical and important today. To be sure, the U.S. Court of Appeals for the Federal Circuit’s August 5 ruling that an “inventor” must, under the Patent Act, always be a human being, would seem to definitively resolve the question. As a matter of existing and clearly settled law, Stephen Thaler’s AI machine, DABUS, cannot be a named inventor on his applications for a fractal-shaped beverage container and a neural flame, like we always thought in the Before Times. It’s time to relegate this parlor-game discussion to the same recycle bin as Beeple’s non-fungible token (NFT), The Tiger King, and so many other viral distractions. Or, perhaps, not so fast.

A Plea to Senator Tillis: Words Matter in Section 101 Reform

In U.S. government, setting public policy is the sole and exclusive domain of Congress. The laws they pass effectuate the public policy positions that Congress alone has the power to set. In law, words are everything. The precise meaning of the words in law determines whether the public policy is implemented as intended by Congress. Altering the meaning of just one word can change the entire public policy set by Congress, even turning the public policy on its head. Anyone following the debate on patent eligibility can attest to how the Supreme Court’s redefinition of the word “any” in 35 U.S.C. § 101 to have an exception called an “abstract idea” caused a significant public policy change and that change destroyed countless startups, especially those in tech. Senator Tillis’ Patent Eligibility Restoration Act of 2022, S.4734, wrongly puts the courts in charge of defining public policy because it leaves key words completely undefined.

Entrepreneur Spotlight: How Ray Young is Fighting Content Theft Encouraged by Big Tech Platforms

Ray Young started RightsLedger.com to give creators control of their content and opportunities for IP monetization, using blockchain technology to authenticate ownership. His latest venture, Milio.io, is the first social media platform to fairly share advertising revenue with users, and already has over a million users. Young spent over two years, since Dec 2019, in Manila working on the company’s launch and is focused on rewarding small and independent content creators with the ability to both protect and monetize their IP. I spoke with Young to better understand how he is helping creators to safeguard and profit from their content online.

Unleashing the Power of AI to Fight Bad Faith Trademark Registrations

Summer has been historically associated with celebrating the enactment of the Trademark Act of 1946 (the “Lanham Act”). Accordingly, Congress now annually introduces resolutions celebrating July, along with Independence, as “anti-counterfeiting awareness month.” These non-binding resolutions are an important reminder of the national importance of trademarks—and a reminder that counterfeiting, and related bad faith trademark misconduct, negatively impacts U.S. small businesses, American jobs, the U.S. economy, and erodes our international competitiveness. Increasingly, brand owners are fighting numerous trademark issues around bad faith registrations and more artful counterfeiting every day of every month. Fortunately, one important element of the solution for restoring the integrity of the register are the tools made possible by responsible artificial intelligence and machine learning (AI/ML) image recognition technology that can fight the fakes.

The Federal Circuit’s ‘CAR T-Cell’ Decision: Courting a Disaster for American Innovation

The only president ever to obtain one, Abraham Lincoln knew the essential role patents have played in the scientific and technological innovations that have driven American growth and prosperity since the founding of the republic. Lincoln listed the development of patent laws—along with the invention of writing and the discovery of America—among the most important events in world history. Patents have “peculiar value…in facilitating all other inventions and discoveries,” he said in a speech in 1858. Giving inventors exclusive use of their inventions for a limited time, “added the fuel of interest to the fire of genius in the discovery and production of new and useful things.” What was true a century and a half ago remains true today. But a recent ruling by the U.S. Court of Appeals for the Federal Circuit is threatening to bank the fire and limit the inventions of the future. Last August, a three-judge Circuit Court panel invalidated Sloan Kettering’s patent for its CAR T-cell cancer immunotherapy and overturned the $1.2 billion awarded Sloan Kettering and its partner and exclusive licensee, Juno Therapeutics, after a jury trial found Kite Pharma had infringed upon the patent. The court, en banc, refused to reconsider the ruling.

A Cautious Welcome: Patent Community Chimes in on Tillis’ Eligibility Bill

This morning, Senator Thom Tillis (R-NC) introduced the Patent Eligibility Restoration Act of 2022, S.4734, which would amend the U.S. Patent Act to clarify the application of 35 U.S.C. Section 101 to certain technologies. While the bill was welcomed by many in the intellectual property (IP) community, since it would abrogate or weaken many of the seminal decisions that have arguably caused confusion on eligibility over the last decade-plus, some have called the bill out as being far from perfect. Questions remain with respect to the text’s language regarding the definition of “technological” and what it means for software patents, for instance, as some commenters note below.