Posts in Guest Contributors

Modeled after the Hatch-Waxman Act, the BPCIA seeks not only to encourage competition in the field of biologics but also to promote innovation by, among other things, providing twelve years of market exclusivity to pioneer biologics… Like the Hatch-Waxman Act, the BPCIA also sets out a process for identifying disputes over patent infringement and managing any ensuing litigation once an applicant seeks a biosimilar license… To streamline the first wave of litigation, the BPCIA mandates that following the biosimilar applicant’s receipt of the RPS’s detailed statement on infringement, the parties negotiate in good faith to select patents for litigation from the lists initially provided by the RPS and the biosimilar applicant. [§ 262(l)(4)].

It’s a fundamental principal of economics that the secure ownership of personal property is essential for prosperity. Walk through any public park and see how seldomly people bother to pick up trash thrown so thoughtlessly about by a few. But if someone throws trash on your lawn, it will quickly be made clear that this nonsense better stop, including calling the police if necessary. But what happens when the police won’t protect the rights of homeowners? Neighborhoods deteriorate, crime flourishes and investors move their money to other markets. That’s what’s happening to patent owners as “effective infringement” becomes an accepted business practice. However, we’ve been down this road before and have a good roadmap of the way out.

The review of current corporate patent submission policies reveals clear inconsistencies. While some technology firms have standards that result in clear paths for third party inventors to knock on corporate front doors with patent submissions, others have standards to effectively block submissions of patents, block third party communications, and slam corporate doors in the face of outside inventors. The lack of submission standards are somewhat unique as compared to other types of IP submissions, and often unique and inconsistent within specific technology industries themselves. This lack of standardization across similar firms adds to the notion that patent submission policies have thus far been insufficiently analyzed and have perhaps evolved inefficiently. They are also in stark contrast to the strong open patent submission policies technology-driven 19th century firms utilized.

LinkedIn recently filed suit in the Northern District of California against Doe Defendants for allegedly “scraping” data about its users from its website through fake profiles and software bots. LinkedIn alleges that the data scraping that was performed using fake profiles and bots was in violation of its user agreement, the Computer Fraud and Abuse Act, and the Digital Millennium Copyright Act, among other things.

High value information—identified as trade secrets, IP mappings, product designs, financial data, confidential business information and similar files and documents—require an extra level of protection because of their value to cybercriminals and malicious insiders. The last thing an organization wants to do is make the theft of high value information easier by leaving vulnerability gaps in security practices. A malicious actor will exploit those each and every time.

Stifling innovation and curtailing investments are the effects of the AIA from what I see and hear. This is infuriating! It is disincentivizing inventors, innovators and investors! Before last year I have never been an activist or protested anything publically. The AIA issue has change that for me… We are standing to protect the rights of Americans to profit from their ideas. The patent system has been broken and rigged to suit corporations. Stealing IP is cheaper than developing it…

Congressman Pence worked mostly on patent reform bills via the Republican Study Committee, a well-known group of House Republicans focused on inserting conservative views into public policy including respect for the Constitution and private property rights… During the time Pence served as Governor of Indiana, Purdue University soared to a record numbers of new patents, record numbers of technology licenses and record numbers of start ups based on Purdue University innovations… In July, Governor Pence signed an Executive Order establishing the Indiana Economic Development Corporation as the entity that will coordinate all efforts on behalf of the State of Indiana to accelerate innovation and entrepreneurship. Perhaps most interesting, the Order specifically acknowledges that increased innovation helps make communities more vibrant and spurs economic growth, higher wages and job creation.

Of course, the implication being if you are not in favor of a never ending revision of U.S. patent laws then you are somehow an ignorant rube not paying attention to the overwhelming consensus in the industry that vast new patent reform measures are desperately necessary to save America from the evils of innovators hell bent on innovating… Trump not having a clear, well-defined position on a patent reform agenda just means he is paying attention.

Earlier this year, President Obama signed into law the new federal “Defend Trade Secrets Act of 2016.” It arms with substantial new weaponry those whose trade secrets have been taken. What has been less heralded, but might just affect you more directly, are new requirements that might lead you to revise your standard confidentiality and non-disclosure agreements.

In July, Kilpatrick Townsend and Ponemon Institute released their findings from The Cybersecurity Risk to Knowledge Assets study, which confirmed most companies’ worst fears — their intellectual property is at risk every day, and theft is rampant. The 600 survey respondents also disclosed that most companies are unsophisticated when it comes to identifying their key intellectual property (particularly trade secrets) and protecting that adequately. And, most surprisingly, the expected costs associated with loss of these important assets was estimated by nearly seven out of ten respondents to total more than $100 million.

My fellow Australian patent attorney Andy Mukherji recently asked the question on this site: Are Australia’s listed IP firms doomed to fail? Doubtless the hyperbole was intentional, but Andy raises a fair point. The Australian IP professions – registered patent and trade marks attorneys (who, for the most part, would be recognized as patent agents rather than attorneys in the US) and IP lawyers – are currently engaged in what might well be regarded as a brave and daring experiment. Prior to 15 April 2013 the regulatory regime in Australia did not even permit patent attorneys to incorporate. Now, less than four years later, not only have many firms chosen to take up the option of incorporation, but Australia now has (to the best of my knowledge) the largest number of publicly-listed IP firms per capita in the world!

As the dearly departed Prince once sang, it could be a sign of the times. Only in this case the reference is about big law firms moving into the intellectual property (IP) space, including acquiring IP boutiques. For example, Polsinelli acquired the Novak Druce IP practice in early 2016. However, when big law firms acquire IP boutiques it does not always—or even usually—work. Because if a big firm acquires a patent prosecution-based boutique it may not make sense because billable hours and rates for patent prosecutors do not compare with those of litigators. It also creates internal conflicts of interest. But the situation could have changed. This time the acquisitions might work because in many respects IP boutiques focus on administrative trial work at the USPTO due to the America Invents Act (AIA), which is more like litigation, and will not create the same conflicts of interest. But not everyone has the same opinion.

In EON Corp. IP Holdings LLC v. Silver Spring Networks, Inc., No. 15-1237, 815 F.3d 1314 (Fed. Cir. 2016), the Federal Circuit reversed a jury verdict and ordered judgment as a matter of law (“JMOL”)—without further proceedings in the district court—on an unarticulated claim construction that was raised by neither party below or on appeal. Specifically, the case presents the issue: “Whether the Federal Circuit erred in ordering entry of judgment as a matter of law on a ground not presented in a Rule 50 motion in the district court, even though the ground presented a purely legal question.”

The DMCA mandated that the Copyright Office establish a registry of designated agents for service of take-down notices. The initial system now appears to have been primitive. … Beginning December 1, 2016, service providers will be able to submit and update the names and contact information for their designated agents for receipt of take-down notices using a new electronic system. What is more, the fee charged for a paper filing, $105, will be reduced to just $6 for an electronic filing, reflecting the reduced claim on Copyright Office resources to input data and maintain a reliable resource.

As more reports come out that patent filings for individuals and small businesses are down and a general recognition that real innovation does not come from large organizations, but rather small ones, it is becoming clearer that changes in our laws have decreased the previous standards that were in place to “promote the progress of science and useful arts.” As such, it seems to this author that our current patent laws are unconstitutional, or at the very least are thoroughly and completely frustrating the constitutional purpose for which they were created since our laws are promoting less and not “securing” our discoveries. We need to strengthen our patent laws to have a system that promotes the progress of science and useful arts by efficiently and affordably securing for inventors the exclusive rights to their discoveries and innovations.