Guest Contributors

James Edwards

Legislative Steps in the Pro-patent Direction

Posted 13 days ago

New patent legislation would rectify some of the damage done by several court rulings and by Congress.  It would reestablish the fundamental constitutional principle that a U.S. patent secures certain rights in private property. Reps. Thomas Massie (R-KY) and Marcy Kaptur (D-OH) have introduced H.R. 6264, the Restoring America’s Leadership in Innovation Act.

Kent Richardson

My Top 25 Songs of All Time

Posted 17 days ago

Frankly, this was a really tough project. My musical tastes range from rock to hip-hop to blues, from Pink to Ottmar Liebert to Kendrik Lamar. The list includes songs from almost five decades, with a significant Canadian component. I like Victor Hugo’s view on the topic, “Music expresses that which cannot be said and on which it is impossible to be silent.” I hope you have a wonderful fourth of July.

Michelle Armond

The Supreme Court, the Federal Circuit, and the Patent Office Walk Out of an Appellate Review Bar: Changing Standards For Appellate Review of IPR Institution Decisions

Posted 22 days ago

This article reviews recent Federal Circuit and Supreme Court decisions addressing the scope of appellate review of institution of inter partes review (IPR) by the Patent Trial and Appeal Board. The America Invents Act, 35 U.S.C. § 314(d), provides that: “[t]he determination… whether to institute an inter partes review under this section shall be final and nonappealable.” Federal courts initially interpreted Section 314(d) to bar appellate review of institution decisions entirely. However, recent decisions have narrowed Section 314(d) and expanded the scope of appellate review of matters decided by the Board at institution. This article will review decisions interpreting Section 314(d) to date, and explain how recent precedents have created new opportunities for appellate review of the Board’s decisionmaking in IPR proceedings.

Jake Wharton

Supreme Court to Resolve Copyright Registration Circuit Split

Posted 22 days ago

On Thursday, June 28, the U.S. Supreme Court agreed to hear a case that should resolve the long-standing question of whether a copyright plaintiff must have a registration in hand when filing suit or, instead, can merely have an application pending. The case is Fourth Estate Public Benefit Corp. v. LLC, 17-571… The Solicitor General filed a brief in favor of the court taking the case. That brief urges the high court to adopt the “registration” approach based on the plain language of the statute.

Chrissie Jamieson

Brand counterfeiting is starting to reach epidemic levels

Posted 23 days ago

The rate of digital transformation within the business world is unstoppable. Of course, transformation of this kind can deliver numerous benefits, but it is also leading to an increase in illicit counterfeit activity. Almost half (47%) of all brands are losing revenue due to counterfeiting while four out often organizations have experienced an increase in the occurrence of counterfeiting and brand infringement. This has, more often than not, originated from a variety of components related to digital transformation on a global scale, including but not being limited to: advances in social media (61%); chat/messaging (52%); artificial intelligence (51%); the dark web (48%), and augmented reality (47%).

Jaclyn Jones

From 1 to 10,000,000 – A History of Patents

Posted 23 days ago

Tuesday June 19th, 2018 goes down in history for the patent world as the day U.S. Patent No. 10,000,000 was granted. The journey from patent No.1 to patent 10,000,000 tells the story of an evolving economy and the technological change that has taken place over more than two centuries.

Gary Addison

Top 5 reasons why counterfeit goods are getting harder to spot

Posted 25 days ago

Counterfeiting can sometimes be seen as a victimless crime where the only ones losing out are the super-rich corporations whose products are being copied. This is simply not true… A big reason for the increase in fake goods is that quite simply, that they are getting harder and harder to spot, both by consumers and also by the authorities.

Aaric Eisenstein

The Real IPR Gauntlet: What USPTO Statistics Don’t Show

Posted 26 days ago

87.2% of patents in the study, per the table, were subjected to just 1 or 2 IPR petitions – so gang tackling is no big deal. But make this simple observation: If a patent is killed in its first IPR, it can’t possibly be considered for a second one. The USPTO keeps their denominator fixed (and too large), which artificially lessens the reported percentage of patents which have large numbers of petitions filed against them. The calculation shouldn’t be 55/4,376 = 1.3% because by the time a patent faces its 7th(!) IPR petition, the universe of eligible-for-challenge patents is much smaller than during the first petition.

Benjamin Joe

PayPal Secures Patent for Augmented Reality Glasses

Posted 27 days ago

The unusual direction of innovative developments in the field of fintech is underscored by U.S. Patent No. 9953350, called Augmented Reality View of Product Instructions, which was issued to PayPal in late April. This patent protects a method by which an augmented reality view of an identified object is generated to include promotional material, recommendations, location to purchase the product and product instructions from a database correlated with the object. This technology enables the user’s ability to access information related to a product by creating an augmented reality in which users may be able to see product and service reviews and listings associated with buyers and sellers, recommendations, and product tutorials.

Gene Quinn

Industry Reaction to WesternGeco LLC v. ION GeoPhysical

Posted 28 days ago

We reached out to our distinguished panel of industry insiders, and the initial reaction is this decision is a clear win for patent owners. Efrat Kasznik: “The expansion of lost profits to include foreign lost profits enhances the ability of a patent owner to recover the appropriate amount damages that would make them whole, without artificially excluding foreign lost profit damages from the pool of available damages. It’s economic justice.” Ronald Abramson: “Today’s decision in WesternGeco is clearly a win for patent owners, though the Court made considerable efforts to limit its ruling…”

Sanjeev Mahanta, Ph.D., J.D.

Denying Inducement to Infringe in Face of a Drug Label: A Fool’s Errand?

Posted 29 days ago

Proving inducement to infringe requires showing that the accused infringer possessed “specific intent” to infringe. In pharmaceutical cases, particularly those arising in the Hatch-Waxman framework, specific intent may be supplied by the wording of a drug label. Vanda sheds light on several issues relevant to inferring inducement to infringe based on a drug’s label. For example, can a label’s clear recommendations on ultimate dosage be negated by how a medical provider arrives at the dosage? Or, does finding specific intent require that every practitioner prescribe an infringing dose? Or, can evidence of substantial non-infringing use negate a finding of inducement when the drug’s label instructs performing the patented method?

James Pooley

The 700 Million Dollar Boomerang Lawsuit

Posted 1 month ago

This is where the drama begins its teaching. Title Source believed its own narrative, in which it was a victim of HouseCanary’s breach… Why didn’t Title Source see the potential disaster when deciding whether to sue? The answer almost certainly lies in the emotional content of disputes where information has been shared between companies. The relationship starts, as it must, with declarations of trust on both sides. So when things start to go downhill, disappointment morphs into loathing and a sense of victimhood. Each side, anxious to see its own behavior as fully justified, develops a committed perspective.

Martin Bijman

Creating Better Applications Through Patent Strengthening

Posted 1 month ago

Events along the prosecution process create multiple windows of opportunity for strengthening a portfolio. Decisions are based on indications of market adoption using evidence from specialized technical analysis and subject matter experts who examine products in the market that potentially use your teaching and proposed claims. There are four key factors to consider during the prosecution process that can identify strengthening opportunities

Joseph Allen

The Government Entrepreneur’s Dilemma   

Posted 1 month ago

Ironically, now that the Trump Administration’s prioritizing economic as well as scientific returns on investment from federal research, one of EPA’s best examples is gone. Others who share this faith are waiting to see what becomes of the Administration’s ROI initiative. One thing’s for certain, it’s going to take more than lofty pronouncements to steer this ship in a new direction. Until there are meaningful rewards for transforming federal laboratory discoveries into useful products, tech transfer will remain little more than window dressing.  With the Chinese right on our heels, that’s a luxury we can no longer afford.

Theodore Chiacchio

Patent Eligibility Determinations in Life Sciences Patent Cases

Posted 1 month ago

This article examines Supreme Court and Federal Circuit analyses of patent eligibility under 35 U.S.C. § 101 where the patent claims at issue were directed to Life Sciences-related technologies. I first examine this topic in the context of composition of matter patent claims and then in the context of method claims. As reflected in the below discussion, while the § 101 case law is fairly straightforward with respect to composition claims, the case law is murkier when it comes to method claims.

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