Posts Tagged: "Guest Contributor"

Dear Mr. Claus: You recently contacted this office to confirm the availability of your proposed “SANTA CLAUS” trademark for use in your business and, if this mark is non-infringing, to assist you in registering it for U.S. and international use. For these purposes you describe your business as “delivering games and toys to good little boys and girls as gifts for Christmas.”

The U.S. Court of Appeals for the Federal Circuit recently issued its decision in In re Micron Tech., Inc., Case No. 2017-138 (Fed. Cir. Nov. 15, 2017), and resolved a question that had divided district courts and commentators throughout the United States following the U.S. Supreme Court’s ruling in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017):  Did TC Heartland change the law of venue in patent cases such that a party’s failure to raise a venue defense in its initial responsive pleading could be excused?  The Federal Circuit held: “We conclude that TC Heartland changed the controlling law in the relevant sense: at the time of the initial motion to dismiss, before the Court decided TC Heartland, the venue defense now raised by Micron (and others) based on TC Heartland’s interpretation of the venue statute was not “available,” thus making the waiver rule . . . inapplicable.”

This August, The Walt Disney Company (NYSE:DIS) announced that it will be releasing two large Netflix-like streaming video services which will both be available in late 2019 according to a report from The New York Times. One of the networks that Disney intends on creating will offer movies and television shows from all of Disney’s holdings, including the Star Wars franchise produced by Lucasfilm. On the other streaming service there will be a focus on providing sporting events produced by ESPN. In its first year, the ESPN streaming service will broadcast a reported 10,000 regional and national sporting events including baseball, hockey and college sports.

When infringement claims are legitimate, Take Downs can be a useful mechanism for getting counterfeit or infringing products taken off the online retail platform website. In turn, sellers protect their hard-earned consumer brand confidence. However, not every seller in the online realm plays fairly, and countless honest and legitimate sellers have found themselves in a position where their products have been removed from online platforms for alleged IP infringement and they do not know what they can do about their situation… If there is an urgency to get back into the online marketplace – for instance, in order to participate in the Holiday shopping season – disadvantaged online sellers who have had their products unfairly removed from an online retail platform through a Take Down Notice need legal recourse, and they need it quickly.

With new social media platforms and photo sharing apps becoming more and more popular, the risk of copyright infringement through the sharing of photos is more present now than ever before. Not to mention, many social media platforms give the ability to re-post, save or share other people’s content. When so many options are available, allowing you to share someone’s photo at the click of a button, it is easy to forget about the possible legal implications of what you do on social media.

A cross-licensing patent agreement is a contract between at least two parties that grants mutual rights to both parties’ intellectual property. The agreement may be a private one between two specific companies or a small consortium of companies. Or it may be a public agreement such as a patent pool, in which IP management is shared amongst a relatively large group of patent holders who share patents. Patent pools are typically industry-based, and companies active in the sector are free to join the pool.

With December here, it really ’tis the season to be jolly’, and with that, many employers indulge in the festive merriment with an annual tradition; the office Christmas party. The afternoon ‘Out of Office’ goes on, the sparkly attire comes out and, many an ear drum is burst as teams of Mariah aficionados compete to hit those harmonic high notes. Karaoke-keen or not, the office Christmas party is the perfect opportunity for employers to thank employees for their contributions over the last year, to bond, share a drink and relax into the holiday season. However, with a glass quickly turning into a bottle, the party can be (and often is) a recipe for disaster that creates consequences extending far beyond the next-day hangover. With many employers well underway in their planning of this year’s Christmas party, we provide a 5-point guide highlighting the steps that can be taken to help avoid any HR headaches.

Like other opinions in the IP arena, the Supreme Court’s decision in Star Athletica v. Varsity Brands has created a new legal rule with limited practical guidance that will inevitably lead to less predictability in an already-murky area of copyright law.  Its new “imaginative separability” test for copyright eligibility for useful articles, such as footwear, clothing, and furniture, may be so easy that few designs will fail to qualify.  Yet, ultimately, Star Athletica may have the unimagined consequence of making copyright protection less desirable for qualifying designs. For those who seek the benefits of the Court’s undeniable expansion of potential copyright protection for useful designs, a bit of caution may be the appropriate response.

The motion of the St. Regis Mohawk Tribe (“the Tribe”) is based on the misplaced theory that Tribal Sovereign Immunity is applicable to administrative proceedings before the PTAB. While the Supreme Court has repeatedly confirmed that, as a matter of judicial construct, Native American Tribes (like the Tribe) can be immune from “suits” in a court absent abrogation or waiver (see Paper 81, at 8), such immunity does not extend to all government action. See, e.g., Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 755 (1998). In this regard, a PTAB proceeding is not a “suit” in court, but instead an administrative proceeding in which the Office (through the PTAB) takes “a second look at an earlier administrative grant of a patent.” Cuozzo Speed Techs. v. Lee, 136 S. Ct. 2131, 2144 (2016) (“Cuozzo”).

Being an effective law legal group leader whether in a corporation, a law firm or the Government, requires specific skills.   Leading teams to accomplish goals under stressful circumstances requires these skills and a team commitment… An excellent leader recognizes that they rise or fall with the team.   To be successful, we all need to have the best team working with us.   When we promote people, they feel valued and appreciated.   Making people feel appreciated is the #1 motivator and its free!… The performance of the team, rather than individuals, is the most important measure.   Yet, pressures can take us away from the team approach if we don’t consciously focus on it.

Antitrust agency communications, such as the EU Commission’s Horizontal Guidelines and the FTC/DOJ Licensing Guidelines underline that market power does not necessarily result from patent ownership as such. They contain, however, no specific language on standard-essential patents which are – if they are valid and truly standard-essential – different from other patents in that they must, by definition, be used in order to operate on the respective standard-based market. In Europe at least, it seems to be increasingly accepted that SEPs can convey market power but that they do not necessarily always do so. Advocate General Wathelet’s proposition (para. 57 et seq. of his opinion in the Huawei/ZTE case) to establish a rebuttable presumption that SEP ownership generates market power has not been taken up by the CJEU’s Huawei/ZTE-decision, probably because the parties already agreed that Huawei held a dominant position (para. 43). But court decisions from the UK (for instance Unwired Planet/Huawei, a summary of the case is provided here) and Germany (for instance LG Düsseldorf, 26.3.2015, 4b O 140/13) have taken a case-sensitive approach, looking not only at the leverage generated by a SEP but also at circumstances which may limit its holder’s power.

When a rule becomes a target, it ceases to be a good rule.  In the three years since the Supreme Court issued its opinion in Alice, there have been positive changes to patent applications, but there remains a long-term risk that patent practitioners will use tricks to beat the Alice test.  Here, we focus on the changes to patent applications by drafters, as well as changes to patent applications that have issued since Alice… Previous analyses have reported that patent specification length has been increasing since long before 2010. As shown in Figure 3, from 2010 to 2013, the average patent application length was approximately 12,417 words. However, from 2015 and 2017, the average patent application length increased to over 14,700 words… Alice appears to have resulted in positive developments, such as narrowing the scope of claims and increasing disclosure of technical benefits of inventions in the specification.

One of the interesting theories posed by the case is Character for Hire’s claimed right to use Disney characters, which derive from Norse mythology or centuries-old fairy tales. In its response to Disney’s motion for summary judgment, Characters for Hire argues that many of the Plaintiffs’ copyrights are based on prior works that have been in the public domain for hundreds of years such as Cinderella, Snow White, Rapunzel, Sleeping Beauty, Aladdin, Princess Aurora, Beauty and the Beast, the Little Mermaid, Thor and Loki. “It will be interesting to see how the Court delineates between established fairy tale characters and the original expression added to them by Disney,” Furey said.

Recently a client asked me for advice on setting up a “reverse engineering” project. He no longer had access to any trade secrets of his former employer; what could possibly go wrong?… In most circumstances, there is nothing wrong with reverse engineering. The recently-enacted Defend Trade Secrets Act declares that it cannot be an “improper means” of acquiring information. (In fact, if you properly reverse engineer a product, the information you discover can be held by you as your own trade secret.) The reason behind the rule is apparent when you consider the limits of trade secret protection: selling a product that reveals the design and method of its manufacture means the secret is imperiled. If it is very easy to discern, then the secret is lost immediately. If it might take some time to figure out, then that’s called reverse engineering, and anyone is allowed to do it.

Bitcoin was touted as the world’s first decentralized digital currency. It basically is a cryptocurrency which uses peer-to-peer technology to provide payment network gateway. Bitcoin is deliberately designed for public use by making it an open-source. Therefore, nobody owns or governs or control Bitcoin and everyone can be a part of it. Bitcoin financial infrastructure follows decentralized and automated systems which overcome the inefficiency of the traditional financial system. The unique feature of Bitcoin is that no one can block you from transferring money from anywhere in this world. Further, this makes whole transaction process irreversible. These transactions are recorded in a public distribution ledger called a blockchain.