The news first came to light during the Spring of 2012 when FOX News recently broke a news story relating to a certain rogue branch of the UN undertaking some kind of clandestine scheme to ship computers and other technologies to the government of North Korea in violation of several UN Resolutions, including UN Security Council Resolutions 1718 and 1874. When I heard the story initially my thought was — so what else is new? The United Nations seems to coddle dictators, tyrants and oppressive (and genocidal) regimes of various types. It was, however, a shock to learn that WIPO was at the center of the controversy. For more see WIPO Embroiled in North Korea Computer Deal.
The first wave of the “WIPO computer scandal” gave way to another revelation. WIPO not only sent computers to North Korea, but they also sent computer to Iran. The Iran computer fiasco was front in center in a recent hearing where Congresswoman Zoe Lofgren (D-CA) was grilling Deputy USPTO Director Teresa Rea. Lofgren called this latest WIPO transgression relative to sending computer to Iran “an outrage.” Lofgren went on: “Really, it’s an outrage that WIPO would be transferring material, violating the sanctions that we have to North Korea and Iran…” While I don’t often agree with Lofgren on many issues, she is absolutely dead on accurate. How could WIPO be involved? For more see Congress Unhappy with WIPO over Iran.
Posted: Wednesday, Jul 18, 2012 @ 5:24 pm | Written by Gene Quinn | 6 comments
Just about one month ago the International Trade Commission prepared a brief document identifying the facts and trends relative to Section 337 investigations. The Silicon Valley elite who would prefer a weaker patent system — those I refer to as the “patent infringer lobby” — would like to strip the ITC of it’s patent jurisdiction and make it easier to import infringing products into the United States. Lead by the ITC Working Group, the patent infringer lobby is forwarding a proposal to accomplish their goal of further weakening the patent system in America, while at the same time grossly exaggerating the problem of non-practicing entities who seek to use the ITC to stop the importation of infringing products.
Frankly, calling what the patent infringer lobby is doing “grossly exaggerating” is being profusely generous. The facts and figures relative to Section 337 investigations put out by the ITC itself demonstrate that the alleged NPE problem simply does not exist. The House Subcommittee on Intellectual Property held a hearing on July 18, 2012. Hopefully Members of Congress will be able to see through the lies and distortions and not put the U.S. patent system in the cross-hairs.
Posted: Wednesday, Jul 18, 2012 @ 4:27 pm | Written by Bernard J. Cassidy | 5 comments
Editor’s Note: What appears below are the prepared remarks of Bernard J. Cassidy. Mr. Cassidy testified earlier today before the House Committee on the Judiciary’s Subcommittee on Intellectual Property, Competition and the Internet. The Hearing was on “The International Trade Commission and Patent Disputes.” Mr. Cassidy’s remarks are published here with his permission.
Chairman Goodlatte, Ranking Member Watt, and Members of the Subcommittee,
My name is Bernard J. Cassidy, and I am Executive Vice President and General Counsel at Tessera Technologies, Inc., which is headquartered in the heart of Silicon Valley, in San Jose, California. We have facilities in Charlotte, North Carolina, Rochester, New York, and Arcadia, California as well as in Europe and Asia. I deeply appreciate this opportunity to speak before you regarding the importance of the International Trade Commission to my company and our innovation economy.
Posted: Tuesday, Jul 17, 2012 @ 4:22 pm | Written by Gene Quinn | 40 comments
And round 2 of the implementation of the America Invents Act (AIA) at the United States Patent and Trademark Office (USPTO) has begun. Earlier today the USPTO published final rules to implement the preissuance submission provisions of the AIA. The preissuance submission final rules appear in the Federal Register and set forth the procedure that a third party must follow to submit patents, published patent applications, or other publications of potential relevance to the examination of another’s pending patent application.
“The preissuance submission provision in the America Invents Act aims to bring the most relevant prior art to the examiner’s attention as early as possible during prosecution to enhance examination effectiveness and efficiency,” said Under Secretary of Commerce for Intellectual Property and Director of the USPTO David Kappos. “The agency is please to publish the preissuance submission final rules in the Federal Register several weeks before September’s effective date of the provision to give stakeholders ample time to learn the requirements of the final rules.”
Posted: Tuesday, Jul 17, 2012 @ 1:48 pm | Written by Gene Quinn | 5 comments
“Man controlling trade” outside ITC in Washington, DC, by New York sculptor Michael Lantz (1942).
On Wednesday, July 18, 2012, the Committee on the Judiciary in the United States House of Representatives will hold a hearing titled “The International Trade Commission and Patent Disputes.” The hearing will take place at 10:00 AM in the Rayburn House Office Building, and will take up recommendations by those in the infringer lobby who feel the International Trade Commission must be reigned in and stripped of much of its patent authority. Yes, those who no longer innovate but find it easier to copy want to make it much more difficult to prevent infringing products from entering the United States. Hopefully their efforts will not succeed.
The proposal is modestly (and misleadingly) titled “Modernizing the ITC Patent Process to Ensure Consistent Application of US Patent Law.” Those who seek to weaken the U.S. patent system so that it is easier for them to infringe without consequence are making the argument that the ITC does not apply patent laws the same way as other courts do and are a haven for non-practicing entities seeking to prevent infringing products from entering the United States. Imagine that? A patent owner who wants to prevent infringing products from entering the United States.
Posted: Tuesday, Jul 17, 2012 @ 12:00 pm | Written by Gene Quinn | 3 comments
Earlier this year, on April 26, 2012, Under Armour sued Body Armor Nutrition for trademark infringement in the United States Federal District Court for the District of Maryland.
In the Answer filed by Body Armor on July 12, 2012, there is a concerted attempt to make this case look like it is a classic trademark bullying matter. The “Preliminary Statement” begins with that theme and sets the tone: “This lawsuit is a prime example of trademark bullying by a corporate giant seeking to stifle an innovative start-up company.” The Answer goes on to say: “Under Armour’s claim against BODYARMOR is without merit. It is impossible that consumers or retailers of either brand would confuse the two. Under Armour and BODYARMOR operate in disparate industries, produce distinctly unrelated products, and share no branding or logo similarities.”
But is that true? At the end of the day Under Armour may lose, but is this really a case of trademark bullying? We all know that these types of bullying cases do exist, and many a large entity will use their power and might to push around small companies. That disgusts me when I see it, but I don’t think that is what what is happening here.
Posted: Monday, Jul 16, 2012 @ 3:50 pm | Written by Michael Carrier | 9 comments
For the past nine years, every appellate court to analyze the issue applied deferential analysis to “reverse payment” settlements. Court upon court lined up to support the agreements, and plaintiffs were down to their last batter. Today, the United States Court of Appeals for the Third Circuit stepped up to the plate and hit a home run in favor of antitrust scrutiny when it released its decision in In re K-Dur Antitrust Litigation.
First, some context. One of the most complex issues in antitrust and patent law today involves agreements by which brand-name drug companies pay generics to delay entering the market. In the past decade, with the Supreme Court showing no interest in wading into the area, the Federal, Second, and Eleventh Circuits have upheld these agreements. And, with each court relying on its sister court, a momentum had developed that made it nearly impossible to discern a role for antitrust scrutiny.
The Board recognized multiple characteristics that differentiate the claimed invention in the “674 patent from the prior art combination of Song and Handong. Among these, the Board specifically determined that the claimed invention possessed a “supporting arm” and that the safety wheels of a resultant combination of Song and Handong would be raised off the ground, unlike what is depicted in the ‘674 patent and recited in the claims. Still, the panel determined that the claims were invalid. How is it possible to find an invention obvious when not all of the elements are within the prior art? This is unfortunately a disturbing trend that has been brought about by a misreading of KSR.