Posts in International

With the World Trade Organization’s (WTO’s) Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) set to meet informally on Monday, September 19, to discuss extending a waiver of IP rights for COVID-19 vaccine-related technology to diagnostics and therapeutics, the U.S. Chamber of Commerce and the Chamber’s Global Innovation Policy Center (GIPC) are urging the Biden Administration to oppose such a move in favor of “real solutions.” The GIPC’s President and CEO, David Hirschmann, and the Chamber’s Executive Vice President and Head of International Affairs, Myron Brilliant, sent a letter to U.S. Secretary of Commerce Gina Raimondo on Friday expressing confusion at the administration’s seemingly contradictory stances on intellectual property rights.

During the final day of IPWatchdog LIVE in Dallas, Texas on Tuesday, a panel of attorneys discussed issues surrounding “dangerous fakes,” which are counterfeit goods that pose health risks to consumers. The panelists began with a brief overview of how U.S. Customs and Border Protection (CBP) identifies and seizes infringing goods. The panel also outlined the role that U.S. Consumer Product Safety Commission (CPSC) plays in working to identify dangerous fakes in conjunction with CBP.

During day one of IPWatchdog LIVE in Dallas, Texas, a panel of speakers discussing current trends and the prospects of patent monetization going forward noted that the “heyday” of patent monetization was approximately ten years ago, with several large patent awards increasing interest in patent monetization. The panelists noted two major factors which presently act as a “glass ceiling” over patent valuations. First, the inter partes review (IPR) proceedings instituted at the U.S. Patent and Trademark Office (USPTO) in 2012 as part of the America Invents Act (AIA) has made investment in patents a riskier proposition.

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.

On September 2, the U.S. Court of Appeals for the First Circuit issued a decision in Amyndas Pharmaceuticals, S.A. v. Zealand Pharma AS affirming the District of Massachusetts’ decision to dismiss trade secret misappropriation claims between former drug development partners. However, the First Circuit found that the district court abused its discretion in denying Amyndas’ motion to file an amended complaint and vacated the dismissal of trade secret claims against Zealand’s U.S. subsidiary.

Despite high aspirations among political leaders, lawyers and others for a rules-based international order, a major new study from researchers at York University finds that the 250,000 existing treaties designed to foster international cooperation have mostly been ineffective. One big exception, however, is in the area of trade and finance, where negotiators wisely put meat on the bones of the commitments by including meaningful enforcement mechanisms. As a result, the researchers found, these international agreements were effective in increasing commerce and global prosperity.

The U.S. Court of Appeals for the Third Circuit on Monday said in a precedential decision that Jiangsu Tie Mao Glass Co. Ltd. (TMG) should have shown up sooner in a trade secrets misappropriation lawsuit brought against it by PPG Industries if it wanted to have a chance at winning. But by failing to enter the litigation until after PPG asked the district court to enter default judgment and award damages for unjust enrichment, “its protestations were and are too little and much too late,” said the appellate court.

V2X, or Vehicle-to-Everything, is on the horizon to revolutionize vehicular technology by enabling interaction between vehicles and their environment. The first communication standard for V2X, IEEE 802.11p: WAVE (Wireless Access in Vehicular Environments), was standardized by IEEE (Institute of Electrical and Electronics Engineers) in 2010 for WLAN-based V2X communication. The terms DSRC (Dedicated Short Range Communication), WAVE, 802.11p, WLAN based V2X have been used by experts interchangeably to refer to this standard. Alternatively, 3GPP (3rd Generation Partnership Project) started standardization of C-V2X (Cellular-V2X) with Release 14, which was related to LTE V2X. This was followed by Release 15 with added compatibility of 5G to V2X, Release 16, adding 5G NR V2X, and Release 17 related to enhancement in 5G NR V2X and beyond.

Not long ago, Dr. Stephen Thaler, a member of the scientific community, began claiming that his artificial intelligence (AI) machine, DABUS, was a bona fide inventor. The outcome so far has been that the claim has been rejected in most jurisdictions. A notable exception is South Africa, which accepted Thaler’s patent application under “Formalities Examination” with DABUS as named inventor. The acceptance of the patent in South Africa and the evolution of the legal field opens the possibility of further assertions and challenges with respect to AI inventorship. I recently authored an article about some of the challenges presented by AI inventorship to the technological and philosophical community. The article highlights that more technological evidence is needed before claiming such inventorship. This technological evidence must be based on the burgeoning concept of “technology analysis,” that is, an analysis that is based on logico-mathematical foundations.  

As the concept of a unified “metaverse” is gaining traction, savvy brand owners are shifting their focus to securing rights in this emerging sector. In pursuit of intellectual property (IP) rights, individuals and corporations are turning to metaverse trademark filings to provide protection for goods and services in the virtual world. As of the summer of 2022, the China National Intellectual Property Administration (CNIPA) has received more than 16,000 applications that either contain the word “METAVERSE” (in English or its Chinese translation: “YUAN YUZHOU,” or both) or that include descriptions of goods and services in the virtual world, or both. These applications were filed by individuals as well as companies (big and small, both foreign and domestic). The rejection rate for traditional trademark applications in China is typically high, around 60-70%, at least in the first instance. However, the rejection rate for these new metaverse applications is even higher, hovering around 80%.

Latin American countries are not usually seen as a first line option when building a strategy to deploy global litigation campaigns to enforce patent rights. However, in 2022, developments in Colombian law highlighted it as a country with administrative and judicial systems that favor patent rights and provide for effective assertion of local patent assets.

Responding to the patent term adjustment obligation under the Canada-United States-Mexico Agreement (CUSMA) and to “streamline the patent examination process”, the Canadian government has registered major changes to the Canadian Patent Rules. The amendments will come into effect on October 3, 2022, and include notable modifications to the patent application examination process, such as establishing excess claim fees for over 20 claims, fees for continuing examination beyond three office actions, and offering conditional notice of allowance.

On August 9, President Joe Biden signed into law the Creating Helpful Incentives to Produce Semiconductors (CHIPS) and Science Act, enacting a major legislative package that will provide $280 billion in federal funding to encourage the domestic production of semiconductor products in the United States as well as fund research and development projects in advanced technological fields like quantum computing and artificial intelligence. Although the 1,000+ page bill establishes massive investments into several areas of developing technologies, it focuses very little on the intellectual property rights that are critical for protecting the new technologies that would be developed through federally funded projects.

An “NNN” agreement is short for Non-Disclosure/Non-Use/Non-Circumvention agreement, which means the information cannot be shared with anyone, it cannot be used in any way, and “behind-the-back” or design around tactics are forbidden. In recent years, signing NNN agreements has become widely adopted and is now the standard initial step in dealings with Chinese companies, particularly original equipment manufacturers (OEMs). An NNN Agreement is much more than just a Non-Disclosure Agreement (NDA). An NDA focuses narrowly on preventing secret information from being revealed to a third party or to the public, which is not sufficient for OEMs in China. In contrast, an NNN agreement not only contains confidentiality provisions, but also prevents misuse of confidential information.