Posts in IP News

Richardson Oliver Insights launches a suite of data and analytics solutions providing patent buyers, sellers, and executives access to patent market data covering over 120,000 patent assets and nearly 5,000 deals. The data spans hundreds of technologies and market sectors including smartphones, wireless communications, cloud computing, social networking, OLED displays, and semiconductors.

PTAB proceedings have radically changed the time to money for patent owners asserting U.S. patents against infringers. Additionally, the value of U.S. patents has dropped substantially since its peak in the 2012… Like many others, I applaud Director Iancu’s stated focus on the PTAB process and his concern about whether the U.S. patent system is fostering innovation investment and risk taking, especially for inventors, universities, and small to medium enterprises.

These issues of fairness and fair use are played out in the recent Oracle v. Google decision. In a convoluted case that has gone up to the Supreme Court once and will again, the Federal Circuit finally was able to make a ruling that the blatant, verbatim copying of computer code is not a fair use. At issue were the copying of 37 Oracle programs or apps, constituting over 11,500 lines of code, by Google for their use in the Android operating system for smart phones and other uses… In the Federal Circuit’s final analysis of the four factors, they again noted that Google could have written their own code or properly licensed with Oracle, but instead chose to copy. “There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.” Accordingly, the Federal Circuit held that Google’s use of the Oracle code was not a fair use.

Today, the biggest reason to have a strict regime in place to protect trade secrets, according to Gambhir, is because technology has made misappropriation of trade secrets so much easier than ever before. Compare the days when trade secrets resided in physical forms (blue prints, coca cola formula etc.) and were stored in locked file cabinets, safes etc. with the trade secrets in the digital world. “In most situations, they may be stored in a computer file that has restricted access on a secure network,” he said. “Yet, even given all that, an unhappy employee can easily download that file on a USB drive and walk out of your building directly to your competitor’s office. Access to trade secrets has become so much easier. In turn, misappropriation has become so much easier.”

There are many reasons that it makes sense for companies, law firms and other entities with valuable IP assets to utilize legal finance. Most are well understood: The cost of litigation is rising, the IP landscape continues to be ever more fraught with risk, and fewer firms are willing to take IP matters on contingency… However, there’s another, less understood but quite compelling reason for IP litigants to use legal finance: Its positive impact on accounting outcomes. The accounting and financial reporting impact of litigation is clearly a pain point: The 2017 Litigation Finance Survey shows that a noteworthy 76% of in-house respondents identify as a business challenge that “ongoing legal expenses depress financial results.”

Intel is not the only chipmaker feeling the pinch from Apple’s decision to move away from third-party vendors for its device components. Reports from last November indicated that Apple was also planning on developing its own power management chips for use in its iPhone products… News reports have indicated that Apple has poached engineering talent from firms like Imagination and Qualcomm, including the former head of Qualcomm’s core communications chip business, in recent years. While many will tout the superior nature of Apple’s computing chip products, there will likely be few who point out the damage wrecked on the company’s suppliers and the potential of intellectual property theft which might be enabling the consumer tech giant’s attempts to further consolidate the personal computing market into its own hands.

AbbVie’s maneuver worked like clockwork to induce regulatory gridlock, which prevented generic competition and kept the company’s profits high at public expense, for years. Fortunately, the FTC would have none of it. The agency filed suit against AbbVie in the Eastern District of Pennsylvania in 2014, accusing the company of illegal monopolization under the antitrust laws. The gravamen of the FTC’s complaint was that AbbVie wrongfully filed objectively-baseless sham litigations, to block generic competition.

Daniel Miller has joined Kasowitz Benson Torres LLP as Special Counsel in the firm’s Intellectual Property Litigation group; he will be based in the firm’s Washington, DC office.

Despite being excluded from the practice of patent law before the USPTO, Kroll is openly continuing his practice. His website Invention.net is still up and running, advertising his services as specializing in patent law and having obtained thousands of patents for inventors. On Monday, April 2, 2018, an e-mail sent to [email protected] inquiring about assistance yielded a return e-mail containing advice on the need to quickly file a patent application because the U.S. is not a first to file country… Michael I. Kroll presents a very real challenge to the authority of the United States Patent and Trademark Office, and specifically to the Office of Enrollment and Discipline. If the Office is unable to stop Kroll from practicing why exactly should any practitioner concern themselves with OED? Why have any ethical rules?

35 U.S.C. § 271(e)(2) provides that it shall be an act of infringement to submit an Abbreviated New Drug Application (“ANDA”) “if the purpose of such submission is to obtain approval … to engage in the commercial manufacture, use, or sale of a drug … claimed in a patent or the use of which is claimed in a patent before the expiration of such patent.” 35 U.S.C. § 271(e)(2). The statute requires that the infringement analysis focus on what is likely to be sold following FDA approval. Bayer AG v. Biovail Corp., 279 F.3d 1340, 1346 (Fed. Cir. 2002). The governing case law holds that this hypothetical inquiry is grounded in the ANDA application itself, the materials submitted in support thereof, as well as any other relevant evidence submitted by the applicant or patent holder. However, as reflected in the below discussion of key Federal Circuit case law examining the appropriate analytical approach, and the sorts of evidence properly considered, when assessing infringement in the ANDA context, these seemingly bedrock legal principles in reality fall by the way side and, therefore, neither patentees nor ANDA applicants should allow themselves to be lulled into a false sense of security through reliance on such verbiage.

On March 13th, the Court of Appeals for the Federal Circuit issued a decision in Cascades Projection v. Epson America, which upheld a ruling by the Patent Trial and Appeal Board (PTAB) to invalidate the asserted claims in a patent covering a system of projecting images using a liquid crystal display (LCD). During oral arguments, one judge of the Federal Circuit opined that it may not have enough testimony in order to decide the case correctly. To save themselves any discussion, the Federal Circuit panel of Circuit Judges Jimmie Reyna, Evan Wallach and Todd Hughes issued a Rule 36 affirmance of the PTAB’s decision, upholding the PTAB without discussing any reason as to why.

Arnold & Porter announced this week that Evan Rothstein has joined the firm as a partner in the Intellectual Property practice, resident in the firm’s Denver office. Mr. Rothstein represents individuals and companies in complex and high-stakes disputes and has significant first-chair trial experience.  He advises clients across a broad range of technologies and industries with specific emphasis on media, advertising, software and hardware, gaming, and e-commerce. 

Imagine this: you become aware of a patent that might cover your products, so you reach out to the patentee to secure a license agreement. After negotiating and entering the agreement, you later decide you’d like to pay less or no royalties. So you threaten to file some IPR and PGR petitions, and when that fails to secure more favorable terms, you breach the contract. If you find yourself sued for patent infringement you protest to the court that as the agent of public interest, you must be allowed to simultaneously challenge the validity of the patents not only before that court, but also before the PTAB. On the same grounds. At the same time. This is what at least one licensee is trying, and the Federal Circuit may soon provide guidance on the viability of this double-adjudication-for-the-public-good-tactic.

The preservation of food and beverage products for safe consumption despite extended shelf lives at grocery stores is a major global industry. Both consumers and companies have soon to be Hall of Fame member Mary Engle Pennington to thank… This May, Pennington will be honored along with the rest of the 2018 class of inductees into the National Inventors Hall of Fame for her technological contributions to food storage and safety. With the anniversary of Pennington’s egg preservation patent upon us, we return again to our Evolution of Technology series to take a long view at the history of food storage and the contributions of this year’s Hall of Fame inductee, a pioneering scientist and the first female lab chief at the U.S. Food and Drug Administration.

eSports is an exciting new area — not only in the sporting industry but in legal terms. There are various key players such as eGamers, game publishers, and organizers of eSports events, who are facing the challenge of sufficiently protecting their rights. Organizers need to ensure that they obtain all necessary usage rights from the game publishers and the participating eGamers, and these parties need to be aware of their possible ancillary copyrights and should take appropriate precautionary measures to protect them. They should also keep in mind that the use of cheat bots might be illegal and sanctioned by courts and organizers of eSports events on the basis of their possible virtual domiciliary rights. There is still a considerable amount of legal uncertainty when it comes to IP in the world of eSports, so it’s vital that all parties involved in this space protect their interests though adequate contractual provisions.