Posts in Business

IP Protects JLTV Despite Sale of Technical Data Package

Oshkosh Corporation has run through a $6.7 billion contract to produce the first 17,000 Joint Light Tactical Vehicles (JLTVs) in a Department of Defense (DOD) program that could produce 55,000 vehicles for the Army and Marines. Oshkosh won the low-rate initial production (LRIP) contract in 2015 to be the sole manufacturer of JLTVs by submitting an original, technologically superior design in a litigated competition with other, arguably, more dominant players in the defense market. Bids for the contract to produce the next tranche of over 15,000 vehicles are due later this year. Competitors for the $7.3 billion recompete contract, including GM Defense, AM General and Navistar, will have access to the proprietary design of the JLTV that Oshkosh used to win the LRIP contract. The U.S. Government has made available to interested bidders a Technical Data Package (TDP) covering the JLTV after purchasing an option in 2016. Oshkosh, however, maintains an intellectual property (IP) portfolio that could counter the sale of the TDP.

USPTO Tasked with Promoting Inclusive Innovation, Improving Prior Art Search Tools Under Commerce Strategic Plan

On March 28, the U.S. Commerce Department issued a strategic plan for fiscal years 2022 through 2026 designed to enhance American competitiveness through the 21st century in several critical areas of the economy, including broadband Internet and supply chain resilience. At several points throughout the Commerce Department’s strategic plan, the importance of intellectual property and the stability provided by certainty in patent rights are acknowledged as key contributors to spurring innovations that benefit American competitiveness against foreign rivals.

Marketing With the Stars of March: NCAA Athletes and the New ‘NIL’ Policy

Name, Image, and Likeness, or “NIL,” is the buzz word spinning around college athletics. In July 2021, the National Collegiate Athletic Association (NCAA) adopted its Interim NIL Policy (“the Policy”) which allows, for the first time, student athletes to monetize their NIL rights without losing scholarships or eligibility. Fans love college sports and cheering on athletes who play for their alma mater or favorite school teams, which creates collaboration opportunities for athletes and brands alike. In an attempt to connect their products and services with college athletes—who are the face of a billion-dollar industry—brands are jumping on the college-athlete bandwagon.

It’s Time for NIH to Uphold the Law, Once Again

As discussed previously, the critics are in full howl now that their attempts to enact legislation controlling drug prices has failed once again. They are applying unprecedented political pressure on Secretary Xavier Becerra at the Department of Health and Human Services (HHS) to misuse the march in provisions of the Bayh-Dole Act to accomplish their goal. Nearly 100 distinguished organizations and individuals endorsed the following letter from the Bayh-Dole Coalition, which I lead, warning HHS not to take this disastrous misstep. Here’s what we said.

What it Means that Russian Businesses Can Now Legally Steal Intellectual Property from ‘Unfriendly Countries’

Russian businesses now hold the key to pilfering, producing and profiting from western technologies. As of Monday, March 7, the Russian government has legalized intellectual property (IP) theft. With this move, businesses in Russia can now violate IP rights, as they no longer need to compensate patent holders from “unfriendly countries.” The list of “unfriendly countries” includes the United States, Canada, Australia, Switzerland, Norway, Iceland, the United Kingdom, Japan, South Korea, New Zealand, Singapore, Taiwan and all 27 European Union (EU) member countries. Russia has faced growing isolation from the Western world following President Vladmir Putin’s invasion of Ukraine. The United States, EU member countries and others recently initiated sanctions against Russia and have enacted crippling trade limitations. Currently, Russia is sufficiently meeting its supply and demand needs for agriculture, energy and natural resources. However, Russia’s isolation and growing lack of skilled producers have led to a stark decrease in technological production and innovation.

IP in the Crosshairs: Government Agencies Terminate Relationships with Russian IP Entities as Kremlin Sanctions IP Theft

The United States Patent and Trademark Office (USPTO) announced last week that it will terminate engagement with the Russian IP Office (Rospatent) as well as the Eurasian Patent Organization (EAPO) and the IP Office of Belarus, which has been cooperating with Russia in the lead-up to and during the Russian invasion of Ukraine. The USPTO also said on Wednesday that, effective March 11, it is no longer granting requests to participate in the Global Patent Prosecution Highway (GPPH) at the USPTO when those requests are based on work performed by Rospatent as an Office of Earlier Examination. And, in pending cases where the Office granted special status under the GPPH to applications based on work performed by Rospatent, “the USPTO will remove that status and return those applications to the regular processing and examination queue, meaning that they will no longer be treated as GPPH applications at the USPTO,” said a USPTO statement. “Like so many, we are deeply saddened by the events unfolding in Ukraine,” said the USPTO. “We hope for the restoration of peace and human dignity.”

IP Audits for the Emerging Life Science Company: A Staged and Strategic Approach for Value

The trend is here to stay – large life science companies are basing their growth strategies on research and development happening at early-stage companies. It is easier, and less risky, for large companies simply to acquire these enterprises working on new and innovative therapeutic candidates that have advanced to a certain stage. For early stage life science companies (ESLSCs), intellectual property is the asset. Although 2021 saw what appeared to be a slowdown in deal-making activity compared to 2020, the top M&A and licensing deals were valued at well over $50 billion dollars. Whether to attract the attention of one of the larger players in the space – for a potential license or acquisition, to entice investors, or to remain competitive – a methodical and focused IP review should ensure clear alignment with business objectives and maximum return on investment. Not only does the IP audit provide the ESLSC a chance to broadly inventory and strategically review their IP, it also prepares them for any potential third-party diligence.

China Joins Hague System – Here’s Why You Should Care

An IP announcement that may have slipped past you in the last few weeks is that China will now become a part of the Hague System for the International Registration of Industrial Designs. The Act will officially enter into force on May 5, 2022. Does this make a difference to you and your clients? Yes, in a very, very big way. Back in the mid-1990s, I had a key client operating out of Hong Kong, prior to the transfer of sovereignty from the UK back to China. He had, by then, become the world’s largest “maker” and seller of vacuum cleaners. Yet, he had only a small staff, mostly engaged in shipping and monetary transactions, i.e., paying for and getting paid for goods he bought and sold to vendors across the globe located in developing world economies.

Report Recommends Worker-Centric Competitiveness Approach to Trade Policy

The Information Technology & Innovation Foundation (ITIF) this week released a report titled “A Worker-Centric Trade Agenda Needs to Focus on Competitiveness, Including Robust IP Protections.” The ITIF is a nonprofit, nonpartisan research and educational institute that focuses on technological innovation and public policy. The report explained that U.S. trade policy has long been contentious. Traditionally, trade policy prioritized U.S. consumer interests. However, in response to a decline in U.S. manufacturing jobs and output due to unbalanced trade, President Biden raised a “worker-centric trade agenda,” turning away from this traditional approach. In his shift to a “worker-centric trade agenda,” the report recommended that President Biden should reject the counsel of anti-corporate, anti-trade progressives who deny that U.S. companies’ interests align with U.S. workers’ interests. A new competitiveness-focused approach to trade policy can support both.

Learning to Live with ‘Zero Trust’: It’s Not as Depressing as it Sounds

Trust is getting a lot of attention these days. Of course, it’s always been important in the United States. We declare trust in God on our currency, Scouts have to be trustworthy, and we even seem to trust the algorithm behind cryptocurrencies. On the other hand, we worry about what feels like a decline, if not complete rupture, in social trust. For businesses that depend on controlling the confidentiality of data shared with employees and outsiders, these are perilous times. Our most important assets are stored and transmitted through digital systems that are imperfect; and that’s without accounting for the frailties of the people with access to those assets. Information security has come a long way since I started my career in the 1970s. There were no networks to worry about then, no powerful computers in the pockets of employees. Data was transmitted on paper. You just needed to watch the front door and photocopier. Employees with their badges as markers of trust could go pretty much anywhere they wanted within the facility.

Sorry, Your NFT Is Worthless: The Copyright and Generative Art Problem for NFT Collections

If you follow Reese Witherspoon on Twitter, you may notice she has been tweeting about non-fungible tokens, or NFTs, a lot. She currently features an NFT as her Twitter profile picture (abbreviated “pfp” for those in the know). In October 2021, Witherspoon became a partner in an NFT art collection called World of Women, or WoW, which was created and illustrated by the artist Yam Karkai. Through an auction-style bidding process, the WoW collection is currently available on OpenSea, one of the largest NFT marketplaces. As of publication, an individual WoW NFT auction starts at around 7 Ethereum (ETH), the cryptocurrency used to purchase on OpenSea, which currently equates to approximately USD 20,000.

Patent vs. Trade Secret Strategy: A Four Factor Decision Framework

Patents and trade secrets are both valuable assets that companies can utilize to protect their innovations and establish competitive advantages in the market. Strategic IP portfolio development and management leverages both patents and trade secrets where they are most effective with the goal of maximizing protection while minimizing costs.

Bipartisan Groups of Administration Officials, Senators, Voice Opposition to New Joint Policy Statement on SEPs

Friday, February 4, marked the deadline for submission of comments on the latest iteration of the Joint Department of Justice (DOJ)-U.S. Patent and Trademark Office (USPTO)-National Institute of Standards and Technology (NIST) Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary FRAND Commitments. The request for comments came on the heels of President Joe Biden’s July 2021 Executive Order on Promoting Competition in the American Economy, which asked the three agencies to review the 2019 statement. In perhaps one of the most surprising submissions, a bipartisan group of former presidential administration officials jointly commented that the new version of the Policy Statement is “disconnected from the realities of SEP licensing,” “unbalanced,” and would “disadvantage the United States on the global stage.”

Senate Judiciary Moves Open App Markets Act Forward

On February 3, during an Executive Business Meeting of the Senate Judiciary Committee, Senator Thom Tillis (R-NC) proposed several amendments on the markup of S. 2710, the Open App Markets Act. The bill would apply existing U.S. antitrust law under the Federal Trade Commission (FTC) Act or the Clayton Act for enforcement actions against companies that engage in anticompetitive practices in app stores, such as requiring app developers to use a favored in-app payment system for accessing consumers through that app store.

Latest Cases from the NAD on Environmental Claims Provide Helpful Practice Tips for Marketers

From consumer goods to cutting-edge industries like blockchain and crypto, consumers want more environmentally-friendly solutions. And advertisers, in response, are rushing to tout their sustainability-focused corporate missions and product solutions. In recent decisions, Butterball, Georgia-Pacific, and Everlane, the National Advertising Division (NAD) of BBB National Programs provided useful and detailed guidance on how advertisers can support sustainability claims and avoid making unqualified general environmental benefit claims that could mislead consumers. In addition to marketing lawyers, brand owners and trademark counsel alike should also be on the lookout for overreaching environmental marketing claims.