Posts Tagged: "intellectual property"

In a significant milestone for the preservation of biodiversity, Decree 11,865/2023, published in the Official Gazette on 12/28/2023, enacted the Nagoya Protocol in Brazil. The protocol, providing for access to genetic resources and the fair sharing of benefits arising from their use, is part of the renowned Convention on Biological Diversity (CBD). The Nagoya Protocol, in force since October 12, 2014, relates to the international commitment of 140 countries, including Brazil, to implement the objective of the CBD on the fair and equitable sharing of benefits from the use of genetic resources and the traditional knowledge associated with them (TK).

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Monday affirmed an International Trade Commission (ITC) final determination that said Google infringed five of Sonos, Inc.’s patents but which also found three proposed redesigns did not infringe. Sonos owns U.S. Patent Nos. 10,439,896 (“’896 patent”), 9,195,258 (“’258 patent”), 9,219,959 (“’959 patent”), 10,209,953 (“’953 patent”), and 8,588,949 (“’949 patent”). Sonos filed a complaint with the ITC alleging certain Google audio players and controllers infringed the patents and the ITC agreed, issuing a limited exclusion order and a cease-and-desist order (CDO) preventing Google from marketing the infringing products in the United States.

“Many believe the root cause of the patent system’s dysfunction is that the U.S. Patent and Trademark Office [USPTO] is issuing too many invalid patents that unnecessarily drain consumer welfare, stunt productive research, and unreasonably extract rents from innovators.” That quote from Professors Michael Frakes and Melissa F. Wasserman echoes a common complaint in patent policy conversations. The USPTO is widely perceived as issuing too many bad patents.

This week in Other Barks and Bites: Judge Pauline Newman responds in district court challenge to her suspension; Over 200 musical artists sign letter imploring tech companies to stop using AI to devalue artists’ work; a California district court denies a motion from tech giants, including Google and Apple, that sought to challenge USPTO IPR rule; and George Carlin’s estate successfully settles copyright infringement lawsuit with podcast that impersonated the comedian’s voice using AI.

The protection of privilege in communications between clients and lawyers is a very important one under U.S. law. The basic rule is that when a client seeks legal advice from a lawyer, the communication between the client and the lawyer is confidential and cannot be discovered during litigation. An important purpose of this rule is to encourage clients to communicate fully and freely with lawyers in the process of seeking legal help. The lawyers here include both external lawyers and in-house lawyers.

The U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision decision authored by Judge Reyna today affirming a district court’s grant of a Rule 12(b)(6) motion alleging that AI Visualize’s patent claims were ineligible under Section 101. AI Visualize owns U.S. Patent Nos. 8,701,167 (’167 patent), 9,106,609 (’609 patent), 9,438,667 (’667 patent), and 10,930,397 (’397 patent), which all relate to visualization of medical scans. AI Visualize sued Nuance Communications, Inc. and Mach7 Technologies, Inc. for patent infringement. Nuance filed a motion to dismiss for failure to state a claim, arguing the claims were directed to patent ineligible subject matter. Since AI Visualize’s Amended Complaint provided no further information about the eligibility of the claims and neither party asked for claim construction, the district court reviewed the eligibility of the claims and concluded they were all ineligible.

The remarkable story that inventor Alan Nelson shared last week at the 7th Annual Intellectual Property Awareness Summit held by CIPU at Northwestern University was revealing in many ways. Dr. Nelson related how he overcame numerous obstacles to commercialize a landmark technology for detecting cervical cancer in the 1990s. Using artificial intelligence (AI) while at the University of Washington, Dr. Nelson automated and vastly improved how early and accurately cervical cancer is identified — he and his team invented a machine to read Pap smears. 

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Wednesday affirmed a number of district court orders against inventor Urvashi Bhagat, whose patent application  was rejected by the U.S. Patent and Trademark Office (USPTO). Bhagat’s U.S. patent application No. 13/877,847 covers orally-delivered nutritional formulations containing omega-6 fatty acids and antioxidants. The application was filed in 2013 and the USPTO examiner rejected all claims as obvious, two claims as lacking written description, several other claims as indefinite and others for improper dependency. On appeal to the PTAB, the Board summarily affirmed the dependency and indefiniteness rejections, affirmed the obviousness rejection on the merits and reversed the written description rejection. Bhagat then appealed to the U.S. District Court for the Eastern District of Virginia, claiming the USPTO erroneously rejected her patent claims and asking for damages due to the Office’s bad faith and for taking her property.

In a nod to Mark Twain’s famous quote, the rumors of the death of IP Edge are greatly exaggerated. It appears the prolific NPE aggregator has either sold or transferred at least one portfolio (and potentially up to 40) to a new entity, Inferential Capital, LLC, which after hiring, has begun asserting again—more below.  On the stats, it was a slightly below average week at both the Patent Trial and Appeal Board (PTAB) and in the district courts. At the PTAB, there were 25 new patent filings, with one post-grant review and 24 inter partes reviews (IPR). 

The European Union Intellectual Property Office (EUIPO) announced today that it has for the first time referred questions of legal interpretation of the EU Trade Mark Regulation (EUTMR) to the enlarged Board of Appeal. The EUIPO’s Executive Director, João Negrão, asked the Office’s Grand Board of Appeal to weigh in on five questions concerning the practice of “conversion,” which allows an EU Trade Mark (EUTM) application or registration to be converted into one or more national applications when necessary. The process is meant to address situations in which an EUTM faces a ground of non-registrability in one or several Member States; through conversion, “the EUTM applicant can convert the EUTM into one or more trade mark applications in the Member States not affected by the problem,” explained the Executive Director’s Referral of Questions.

There are many loud voices making a lot of noise about TikTok right now, and as someone who makes “noise” for a living, I thought I’d provide an independent musician’s perspective on the TikTok legislation before Congress: I hope it passes, both as an American and as a music maker. First of all, this bill restricts TikTok, it does not “ban” the app. It forces the company to cut its ties to the Chinese Communist Party and prevents them from accessing the data of Americans. That’s a good thing. The bill doesn’t mandate or regulate speech, it’s focused on national security. The threat is no secret, it’s real: the Federal Communications Commission (FCC) called TikTok “a clear and present danger” to our country.

Did you know that Brazil’s medical device market is experiencing a surge, attracting billions in imports annually? This boom, however, is attracting not only legitimate businesses but also those looking to exploit loopholes. On average, more than US$6.7 billion worth of products are imported annually, with around 14,000 new products being introduced every year. One example is the increase in sales of equipment for endoscopic surgeries, given the rise in the number of bariatric surgeries, which already exceeds 70,000 procedures per year.

On April 1, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in BBK Tobacco & Foods LLP v. Central Coast Agriculture, Inc. affirming a lower court’s ruling that canceled trademark applications pending at the U.S. Patent and Trademark Office (USPTO). The Ninth Circuit panel majority determined that the district court had statutory authority to invalidate a trademark application for no bona fide intent to use over a dissent authored by U.S. Circuit Judge Patrick Bumatay, who argued that district courts lacked the authority to cancel trademarks before registration by the USPTO.

For the second year in a row, we pulled and analyzed data on the number of women who appeared in International Trade Commission (ITC) investigations. This year’s data confirms what we saw last year: that women are underrepresented at the ITC. While research shows women make up about 50% of the population, 50% of associates, and 39% of the profession generally, they only made up 27% of the ITC advocates in both 2022 and 2023. The difference in years of experience between male and female advocates is even starker, with men having on average nearly 7 more years of experience than women. This year’s statistics are examined in detail below and compared to what we found in our article published last year.

The U.S. Supreme Court on Monday, April 1, dismissed a petition asking the Court to revisit and clarify its seminal holding in Alice v. CLS Bank. The petition stems from a 2023 U.S. Court of Appeals for the Federal Circuit (CAFC) ruling upholding a district court’s grant of summary judgment that certain claims of Ficep Corporation’s U.S. Patent 7,974,719 (’719 patent) were patent ineligible under 35 U.S.C. § 101. The ‘719 patent covers a method of manufacturing industrial steel.