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McNees Wallace & Nurick Is Looking to Hire a Copyright/Trademark Associate

McNees Wallace & Nurick LLC is recruiting an Intellectual Property Attorney (Copyright/Trademark) with at least 5 years of relevant experience. McNees Wallace & Nurick LLC has offices in Harrisburg, Lancaster, State College and Devon (Main Line) PA, Columbus, OH, and Frederick, MD. Candidates will be offered the flexibility to work remotely but must be willing to travel to one of our offices from time to time. This position is a full-time, permanent position located in Pennsylvania, Ohio, or Maryland.

Alice-Insanity (Part Three): How the Star Chamber of Madison Place Violates Basic Principles of Collateral Estoppel

As stated in Part One of this series, the Fifth Amendment of the U.S. Constitution guarantees, inter alia, that no person shall be deprived of property (including intellectual property), without due process of law. However, the Supreme Court has never held that a single appellate court must comply with Fifth Amendment due process of law. The closest the Supreme Court ever came to such a radical idea as requiring any appellate court in the nation to comply with due process of law was at a time when “Three’s Company” and “The Muppet Show” dominated the 7PM-9PM Nielsen’s ratings. See Singleton v. Wulff, 428 U.S. 106 (1976) (warning the Eighth Circuit that “injustice was more likely to be caused than avoided by deciding the issue without petitioner’s having had an opportunity to be heard,” but not actually requiring the Eighth Circuit to comply with Fifth Amendment due process). In contrast, the Supreme Court has held that even a man classified as an “enemy combatant” by the U.S. government is entitled to at least some measure of due process. See Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

Photographer’s SCOTUS Petition Argues State School Liable Under Takings Clause for Copyright Infringement

On November 15, Houston-area aerial photographer Jim Olive Photography filed a petition for writ of certiorari asking the U.S. Supreme Court to take up an appeal from the Texas Supreme Court, which had denied Olive’s copyright claims against the University of Houston System on sovereign immunity grounds. In the petition, Olive requests that the Supreme Court simply grant certiorari, vacate the lower decision and remand for reconsideration of the issues in light of the Court’s decision this summer in Cedar Point Nursery v. Hassid, which was issued just a few days after the Texas Supreme Court ruled against Olive.

Stars, Paparazzi, and the Puzzling Law of Copyrights

Picture this: A paparazzo snaps an unauthorized photo of a celebrity and sells it to a media outlet, making a tidy profit. As unfair as that may sound to the celebrity, most stars are well-aware of the established law that a photograph—even an unwanted one—can be monetized by the paparazzi. The law also is clear that, absent permission, the celebrity cannot monetize the photograph herself. Photographs, like other works of art, can be copyrighted by the paparazzi and, as with copyright, the owner possesses the famed “bundle of rights,” including the right to prohibit others from displaying the photograph for money.

FDA Resists FOIA Request for Vaccine Approval Info as Biden Administration Offers to Share it with the World

From the “one hand doesn’t know what the other hand is doing” category, believe it or not, the Food and Drug Administration (FDA) is effectively refusing to release documents it possesses relating to the approval of the Pfizer-BioNTech COVID-19 vaccine. More precisely, Public Health and Medical Professionals for Transparency (PHMPT), a group of doctors and scientists, submitted a Freedom of Information Act (FOIA) request for documents relating to the approval of the Pfizer COVID-19 vaccine. After the FDA denied a request by the PHMPT to expedite release of the documents, a lawsuit was filed. In response to that lawsuit, the FDA proposed to release 500 pages per month, which would allow the agency time to redact material as necessary. Given that there are 329,000 pages responsive to the PHMPT request, at the proposed FDA rate of 500 pages per month it would take 55 years for the FDA to fully release the Pfizer COVID-19 vaccine documents.

Quantum Computing Takes Off: A Look at the Evolution of Quantum Technology and Patents

Towards the end of 2019, I was finishing a book, AI Concepts for Business Applications. The last chapter was titled, “The Future.” I wrote about quantum computing and a version of deep learning that was related: a “quantum walk neural network.”In 1980, the idea of a quantum processing unit was proposed. Such a processing unit doesn’t use the 1s and 0s with which we’re familiar. That “classical” way of thinking is the way we think, with a 1 for true and a 0 for false, and combinations—for example, a “false positive.” Quantum computing is based on a “superposition” of states called “quantum bits” or “qubits” for short. But there’s a big difference between the way we think and the way nature behaves. In 1981, the late Caltech professor, Richard Feynman (a Nobel Prize co-winner for his work with “quantum electrodynamics”) summed it up: “Nature isn’t classical, dammit, and if you want to make a simulation of nature, you’d better make it quantum mechanical, and by golly it’s a wonderful problem, because it doesn’t look so easy.” Now, quantum computing is beginning to emerge.

Other Barks & Bites for Friday, November 19: Global Value of Music Copyright Up 2.7% in 2020, Kanter Confirmed as DOJ Antitrust Head, and Ireland Adopts EU Copyright Directive

This week in Other Barks & Bites: The USPTO is postponing until January 2023 the filing fee for patent applications not filed in DOCX format; a recent Global Value of Music Copyright report finds that worldwide copyright value for music increased to $32.5 billion USD; B.E. Tech seeks mandamus relief at Federal Circuit, raising several constitutionality issues with inter partes review proceedings at the PTAB; Ford and GM make moves toward entering chip manufacturing industry; Ireland adopts EU Copyright Directive five months after the EU’s deadline; Jim Olive Photography files petition for cert over Takings Clause claim on state copyright infringement; the Federal Circuit remands a case to the TTAB to reconsider claims that Italian hardware maker Galperti made fraudulent representations on exclusive use of its trademark; former USPTO Directors Kappos and Iancu and former Commerce Secretary Locke blast U.S. support of TRIPS waiver as “strategic folly;” and the USPTO issues a final rule implemented the provisions of the Trademark Modernization Act, including new reexamination proceedings for challenging fraudulent marks.

Is Europe Running Out of Trademarks? Professor Beebe Talks EU Trade Mark Depletion

Is the European trademark system a victim of its own success? This was the question posed by Professor Barton Beebe of NYU School of Law at the Annual Sir Hugh Laddie Lecture at UCL-IBIL on November 9. Beebe argued that “trademark depletion is the most significant challenge the trademark system will face this century” and that, contrary to conventional wisdom,…

Avery Dennison is Seeking a Junior IP Counsel Based in Mentor, OH

Avery Dennison is actively looking for someone to join their diverse team of talents. As a Junior IP Counsel, you will be providing global intellectual property (“IP”) services to Avery Dennison, including IP strategy, domestic and international IP procurement, enforcement, and clearance, business counseling, and transactional support. The position reports to the Global VP and Associate General Counsel, IP, and works closely with the company’s technology and innovation leadership teams, as well as Regional Directors of R&D, Marketing, and Procurement. This full-time, permanent position will be based in Mentor, Ohio, USA.

Tarantino Pulp Fiction Dispute Spotlights the Contentious Relationship between NFTs and IP Rights

Director Quentin Tarantino’s 1994 Pulp Fiction, considered among the most influential films in modern history, has emerged as a test case of sorts for issuing non-fungible tokens (NFTs) that relate to a copyright-protected work. The NFTs are being sold independent of Miramax, the producer and owner of the rights to the film, who says its ownership rights are being violated. The lawsuit, filed in the U.S. District Court for the Central District of California last week, also accused Tarantino of breach of contract, trademark infringement and unfair competition, according to court documents.

Final Rule Implementing Trademark Modernization Act Will Soon Allow USPTO to Crack Down on Fraudulent Filings from China

The U.S. Patent and Trademark Office yesterday published a final rule implementing the Trademark Modernization Act of 2020 (TMA), which was signed into law as part of the Consolidated Appropriations Act of 2020 last year. The new regulations go into effect on December 18, 2021, except for the implementation of the shorter response period for office actions, which will go into effect on December 1, 2022.

The USPTO’s New Guidelines on Prophetic and Working Examples in Patent Applications and Corresponding Practices in India and China

The United States Patent and Trademark Office (USPTO) publishes a large number of notices in addition to guidelines for patent applicants. These guidelines are frequently updated, and it is critical to stay informed of those updates. On July 1, 2021, the USPTO published a notice in the Federal Register titled “Properly Presenting Prophetic and Working Examples in a Patent Publication.” In this notice, the USPTO defined prophetic and working examples, distinguished these concepts, and described their use and importance within patent applications. In contrast, this distinction is not made under Indian or Chinese law or practice. Furthermore, applicants are generally not required to provide prophetic or working examples, and the concept of prophetic examples is not recognized under Indian or Chinese patent law.

The Estée Lauder Companies is seeking a Patent Agent for its Design Practice

The Estée Lauder Companies is seeking a Patent Agent for its Design Practice. This full-time, permanent position is based in Melville, NY.

Iancu, Locke and Kappos Slam Biden Administration’s Support for COVID IP Waiver in New White Paper

Former U.S. Patent and Trademark Office (USPTO) Directors Andrei Iancu and David Kappos, and former Secretary of Commerce Gary Locke, today released a White Paper calling the Biden Administration’s decision to support a waiver of intellectual property protections for COVID-19-related technologies under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) “strategic folly.” The report was produced by the Center for Strategic and International Studies (CSIS). In the paper, titled “The Shot Heard around the World”, the three officials, two of whom served under the Obama Administration, explained that the United States must indeed ramp up its efforts to improve vaccine diplomacy and to distribute more vaccines globally, but that “[w]aiving IP protections would not lead to the manufacture of a single additional dose of a vaccine.” Instead, they proposed a number of alternative solutions to solve the “real problems.”

Patent Filings Roundup: Judge Albright Hits Back at Federal Circuit; APJ Urges Board to Consider Litigiousness Under Fintiv; PTAB Reverses Fintiv Denial after ITC Termination

District court patent filings this week remained slightly elevated, at 78, with a fair number of Rothschild, Raymond Anthony Joao, and Jeffrey Gross entities filings complaints; but oddly—after their explosion of new litigations the past two weeks—there was not a single IP Edge case to speak of. The Patent Trial and Appeal Board (PTAB), for its part, was up slightly too, with 37 new petitions (one post grant review and 36 inter partes reviews). Speaking of Jeffrey Gross, though it consists of two patents issued in 2013, the Jeffrey Gross-run Auth Token LLC appears to have waited until the sunset of covered business method (CBM) petitions to turn around and slap virtually all of the nation’s banks, credit card companies, and some financiers with a lawsuit over two pretty identical point-of-sale authentication patents. The cases now include Mastercard, Visa, M&T Bank, PNC Bank, Regions Bank, TD Bank, Trust Financial, and US Bancorp (US Bank), among the 32 defendants thus far.  But the real action was between the Federal Circuit and Judge Albright, as the words and rulings of each become increasingly confrontational toward the other.