Posts in Guest Contributors

Advocating for Ethics-Driven Regulation for Blockchain Technologies

Blockchain technology can serve as a shared database ledger that tracks assets and transactions with little to no oversight but, in theory, unlimited users. Its potential applications spanning smart contracts to blockchaining intellectual property, indicate promise for fluid collaborations, efficient remuneration and thorough intellectual property management. However, there are still crucial issues, including privacy, compatibility, liability and jurisdiction that remain undefined. Moreover, because all fields necessitate specialized codes of conduct and ethics, if blockchain technology is expected to make a significant difference in society, then it too, deserves its own field of ethics, like artificial intelligence (AI), nuclear technology, biotechnology, and space exploration. Leading minds across disciplines need to contemplate how this technology can be shaped to have a positive impact, first by examining what this field is capable of doing and its potential consequences.

Patent Filings Roundup: Western District Waters Tested; IP Edge Runs from Disclosure in Delaware

Twenty-three inter partes reviews (IPRs) and no post grant reviews were filed this week; plaintiffs filed an average-ish 79 new district court filings, though many were associated with older campaigns. The Daedalus Prime subsidiary asserting Intel patents has filed suits against Samsung and TSMC; Volkswagen filed a number of IPRs against Fortress-backed Neo Wireless. There were, again, no discretionary denials at the Patent Trial and Appeal Board (PTAB), though certainly merits-based denials continue apace; many challenges against Magnetar entity Scramoge have been instituted; and Red Hat filed a declaratory judgment action for non-infringement against litigation-funded Valtrus [Centerbridge Capital, run by Key Patent Innovations] on patents not yet asserted in district court, just as Google began challenging a different set of patents asserted against just them.

Understanding IP Matters: How Trade Secrets Foster Collaboration and Sharing

National Science Foundation research shows that many R&D-oriented companies believe that trade secrets are more important than patents and copyrights. How did this happen, and why are trade secrets growing in importance? Bruce Berman, host of the “Understanding IP Matters” podcast, sought out trade secrets expert Jim Pooley to find out why. Pooley is the world’s foremost expert on trade secrets, a mysterious area of the law that has been the focus of employer disputes. A successful Silicon Valley trial lawyer, Pooley served for five years as Deputy Director General of the World Intellectual Property Organization (WIPO) in Geneva, Switzerland. His commentary pieces on the controversial COVID vaccine patent waiver and other topics have appeared in The Wall Street Journal and The Financial Times, and he is a regular contributor on IPWatchdog.

Latest Developments in U.S. Trademark Registrations for Cannabis Products

Despite efforts to legalize marijuana, cannabis remains unlawful under U.S. federal law. This means that it is not possible to obtain federal trademark registrations for marks used in connection with cannabis goods or services. Federal registrations for Cannabidiol (CBD) products or services are similarly very difficult to obtain. The law on this topic is developing quickly. For those in this commercial space, it often feels as if the legal sands are shifting beneath their feet. Best practices for their brand protection can be difficult to navigate. The purpose of this article is to provide a brief overview of where the federal law currently stands and where it may be headed.

#IPconsiderations for Protecting Hashtags as Trademarks

With its widespread use on social networks, mainly on Twitter, the hashtag has become a real communication tool. As a result, there have been a number of trademark registrations with the “#” symbol in the last few years. The question remains, however, as to whether using a third-party trademark with the “#” sign can be considered trademark use and is therefore likely to be infringing the trademark owner’s rights. The Oxford dictionary defines the hashtag as “a word or phrase with the symbol ‘#’ in front of it, used on social media websites and apps so that you can search for all messages with the same subject”.

Taking Control of the Game: How Sports Rights Owners are Fighting Piracy

On August 18, 2022, Albert Pujols hit a grand slam against Austin Gomber for his 690th career home run. A clip of that home run was posted on Reddit before the official Major League Baseball (MLB) app was updated. Three years ago, the post would have been taken down quickly. Today, it has thousands of fans commenting on it instead. In 2020, MLB reversed course on a long-established content policy by going beyond simply allowing fans to post clips and highlights of MLB games. They introduced Film Room, a product that lets fans search clips, make reels, and post them to social media. This decision was made with intent – to take back control over how its media was being used online. “I think we’re at the point now where we believe that making our content available for our fans, particularly our younger fans, in a way that’s easy for them to consume, is really important,” Chris Marinak, MLB’s chief operations and strategy officer told Sporting News.

Can a Human Patent a Space Alien’s Invention?

The 56th anniversary of the first broadcast of Star Trek just passed on September 8. I recently moderated a panel discussion at the Star Trek convention in Las Vegas, titled “Patents in the Future,” where I asked one of my favorite patent questions, one that most patent attorneys get wrong. If I find an alien invention and figure out how it works, can I patent it? I usually get the impatient answer “no” because I didn’t invent it—isn’t that obvious? But actually that’s not correct. I can get a patent.

Flawed Scheme to Lower Prescription Drug Prices Would Do the Opposite

The waning days of summer signal the approaching midterm election season. Amid inflation, recession and voter discontent, it’s understandable that a group of congress members are anxious to put points on the board with a price-control scheme that they wrongly believe will lower prescription drug prices. Though the goal is laudable, their approach would prove disastrous to American innovation while failing to deliver anything but higher prices for American consumers. In a recent letter to Department of Health and Human Services Secretary Xavier Becerra, 100 congressional lawmakers urged him to use his administrative authorities to leverage various intellectual property-related laws as a means of implementing price controls on patented drugs. But undermining intellectual property protection would put a deep chill on healthcare innovation, both at home and globally.

Senator Tillis: Here’s the Answer to Section 101

In early August, Senator Tillis (R-NC) proposed legislation called the Patent Eligibility Restoration Act of 2022, (S. 4734). US Inventor wrote a response to this legislation showing how it will destroy already damaged patent protection for U.S. software inventors and startups. Included in this destruction will be some of the most important inventions to U.S. technological development, economic growth and national security, like artificial intelligence, security systems, block chain, quantum computing, and much more, including anything that could compete with Big Tech’s core technology.  This legislation is dangerously misguided. In a recent interview with IP Watchdog, Tillis was asked about some of the fatal concerns we identified in our response. Tillis brushed those concerns off by saying that he doesn’t want to hear complaints without solutions.  Fair enough. 

Lessons for Brand Owners from the First CCPA Financial Penalty

International cosmetics retailer Sephora has agreed to pay $1.2 million to settle allegations that the company failed to cure violations of the California Consumer Privacy Act (CCPA). The settlement is the first CCPA enforcement action resulting in financial penalties from the California Attorney General’s office and elucidates the Attorney General’s view of how the use of website analytics and advertising trackers involve “sales” of personal information.

How the History of Patents Can Teach Us What a World Without Them Might Be Like

Despite its longevity, the patent system is often criticized. During the pandemic, accusing eyes quickly turned to patents and voices were raised demanding that patents related to COVID-19 be “waived”. This is not an isolated event: some have argued that we would be better off without patents for various reasons in other crises of the past as well. This raises the question of what a world without patents – as we know them today – would be like. As is often the case, history gives us some valuable insight. In this article, we will look specifically at three risks posed by a world without patents in light of real examples from the past.

Let’s Do Something About the Unauthorized Doctrine of Non-Statutory Judicially Created Obviousness-Type Double Patenting

In a June 20, 2022, article on IPWatchdog, I addressed a portion of the June 8, 2022, letter from Senators Leahy, Blumenthal, Klobuchar, Cornyn, Collins and Braun  to U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal requesting the USPTO to issue a notice of rulemaking or request for comments in the Federal Register by September 1, 2022, on curbing continuation practice as a means to address “patent thickets.”  As of the date of this article, the USPTO has not issued the notice. In this article, I, along with co-author Anthony Prosser, address the other issue raised in the Senators’ June 8 letter—whether elimination of terminal disclaimers that “allow” patents to issue that are “obvious variations of each other” would increase patent quality and whether patents that are tied by a terminal disclaimer should be considered an admission of obviousness and stand or fall together in litigation.

Call for Amici: Whatever You Think of In re Killian, Patent Owners Deserve Clarity

[Editor’s Note: Bud Mathis is counsel for Killian]. The average attorney reading the recent opinion penned by Judge Chen and joined by Judges Taranto and Clevenger in In re Killian (Appeal 21-2113) might agree with Judge Chen’s conclusion that, “[w]hile there are close cases under the Alice/Mayo standard, the ’042 application does not present such a close case[.]” To this statement, I, Killian’s counsel, respond that, every time any claim comes close, the Federal Circuit engages in a predictable fiction in which the court: (1) announces that a claim is directed to “a something” described in such a broad and vague manner that “the something” barely resembles the claim at issue, (2) declares that “the something” that barely resembles the claim at issue is “abstract” based on no evidence or analysis, and then (3) declares that the remaining claim limitations lack an inventive concept.

Eliminating the Jargon: An Alternative Proposal for Section 101 Reform

On August 3, Senator Thom Tillis (R-NC) introduced the Patent Eligibility Restoration Act of 2022, S.4734, which would amend the U.S. Patent Act to clarify the patent eligibility of certain technologies under 35 U.S.C. Section 101. Few would disagree that the current state of eligibility jurisprudence is in “abysmal shambles”, and recognizing that U.S. eligibility law needs changing comes from both side of the aisle, as Senator Chris Coons (D-DE) has long questioned the court-made exceptions to patent eligibility….. I have extensively followed the developments of 101 jurisprudence in the courts and the efforts of those in Congress to enact statutory changes to Section 101. In so doing, I have contemplated how Section 101 could be improved, and thus my proposal regarding how to revise the statutory language follows.

Patently Strategic Podcast: From Alice to Axle

Just when we thought things couldn’t get worse, the state of patent law around eligible subject matter has fallen further into limbo with court decisions that dissenting opinions have said will “lead to insanity,” can only be the product of “result-oriented judicial activism,” have moved the system from its once reliable incentive to innovate “to a litigation gamble”, and could “threaten most every invention for which a patent has ever been granted.” Despite cries for help and urges to provide clarification from multiple presidential administrations, the Solicitor General, members of Congress, the U.S. Court of Appeals for the Federal Circuit, IP bar associations, and the Patent Office, the Supreme Court refused to hear American Axle’s recent bid to overturn a lower court decision that invalidated the company’s patent in a closely followed legal battle with rival Neapco Holdings.