Posts Tagged: "intellectual property"

Chamber of Commerce index on IP environment shows U.S. leading the globe

The report noted key areas of strength for the American IP environment, including effective trade secret protection, commitment to international treaties, mechanisms for pharmaceutical-related patent and generally appropriate boundaries set by courts on copyright exceptions. Along with narrowing patentability and weak enforcement against counterfeit products, key weaknesses for the U.S. included ambiguity regarding the obligations of Internet service providers (ISPs) to respond to trademark-holder notices of infringement and the need to speed up information sharing between rights holders and border agents to aid in the identification of infringing goods.

Pumping the Brakes on IP Infringement in the Fast Moving Consumer Goods Industry

With leading-edge, tech-savvy companies in the internet, social networking, and e-retailing space often dominating headlines nationwide, it is easy to overlook the myriad businesses competing in the Fast Moving Consumer Goods (“FMCG”) industry, and to dismiss them as somewhat out-of-touch with the modern consumer. However, FMCG companies have combined revenues nearly on par with those in the more highly-publicized technology-based sectors, and have been thriving in the retail space for decades. IP Rights are critically important in the FMCG industry because businesses operating in this sector rely heavily on brand awareness and brandy loyalty for their success. It makes sense then that IP Rights are pivotal in any FMCG company’s long-term strategy for success.

Will Vacancy Caused by Passing of Justice Scalia Put US Supreme Court in a Pinch on IP Matters?

Justice Scalia never hid the fact that patent law was his “blind spot”. He also admitted to often taking his cues on IP issues from his colleague Justice Ginsberg. On a Court that has not been kind to patent owners these past years, Justice Scalia, who never feared a bit of controversy, was generally considered as a “staunch defender of patent rights” (as long as they were valid) and viewed them, rightly so, as property. On the other hand, he is also the first Supreme Court Justice to refer explicitly to “patent trolls” (in the Commil case), and not in a good way… He also famously called out the Federal Circuit jurisprudence on obviousness as “gobbledygook.” Google it; it is not exactly a compliment!

The Default Law of Joint IP Ownership

The popular media’s reports of the demise of IP rights (especially patents) are premature and greatly exaggerated. IP remains valuable to enterprises of all sizes and types. Further, the notion of open innovation, which reflects not only the social nature of man but today’s technological reality, is here to stay. As a result, IP law practitioners will continue to be called draft, review and negotiate collaboration-type agreements where business, engineering and other legal personnel will continue to insist on the “fairness” of joint IP ownership. Such insistence should always be met with skepticism for its need. And, when such joint IP ownership is unavoidable, its consequences and mechanics must be addressed. In sum: If you must do it, don’t half-a$$ it!

What the passing of Justice Antonin Scalia means for SCOTUS patent jurisprudence

While Justice Scalia served on the Supreme Court for nearly three decades, his contributions to the area of intellectual property law were quite limited. Scalia did famously refer to patents as “gobbledegook” during the KSR v. Teleflex oral arguments. Scalia was the only Justice not to sign onto an opinion in Bilski v. Kappos that would have recognized that at least some software is patent eligible. But Justice Scalia did not author any of the major patent decisions considered by the Court during his tenure. The passing of Justice Scalia does not seem likely have much of an impact on intellectual property cases, particularly patent cases. Having said this, I could see legislative history becoming more relevant than anyone would have anticipated just a week ago when the Supreme Court considers Cuozzo Speed Technologies v. Lee.

Fully Baking Joint IP Ownership into Collaboration Agreements

It seems the since-kindergarten, ingrained notion of sharing supersedes our B.S., M.S., J.D., Ph.D. and/or M.B.A. training in this respect! Pressures to “get the deal done” by our business and engineering clients, as well as the corporate lawyers who may be supporting the deal and always think it’s a good idea, result in IP law practitioners’ capitulation into drafting joint IP ownership clauses. We should have learned long ago, however, that while splitting the baby (i.e., joint IP ownership in this case) may sound “fair” and give us psychological comfort, in reality it is usually undesirable, unwieldy and perhaps unworkable.

Smarter manufacturing policies, not tariffs or negotiators, is what America needs

The U.S. cannot win a trade war based on raising tariffs. Rather than engage in a trade war that the U.S. can’t win, why not embrace smarter manufacturing policies? when we outsource manufacturing we are handing over the follow-on innovation that will take place on the factory floor. Therefore, by outsourcing manufacturing to the lowest bidder abroad not only have we destroyed the working middle class in America, but we are also increasingly turning over our last economic advantage – our intellectual property. How long will the United States be able to remain one of the world’s leading economies if we continue to outsource that follow-on innovation that takes place through the manufacturing processes?

The Internet of Things Patent Landscape for Wearables

Technology is in a constant state of evolution, and the Internet of Things (IoT) is no exception. The top five emerging markets for the IoT – medical, fitness wearables, industrial, automotive, and smart homes – are driven by patented IP, much of which is being applied in IoT inventions. The patents for the five technology areas of the IoT – Things, networking, computing and storage, services and analytics – differ in content and maturity. The bottom line is that the technologies at the beginning of this system, Things, and at the end of this system, analytics, are the newest. The technologies in between, networking, computing and storage, and services, are established, but will evolve and scale for IoT. It is in these “in between” areas that we see the most dominance of mature companies.

Does the Internet of Things Recycle Old Technology?

There is a lot of hype around the Internet of Things (IoT) yet many, if not most, are confused by what IoT really is and what it means for their IP and their business. If you are a new player in the IoT market, you most likely will be filing patent applications for new innovations; however, since IoT is being built on established technology, you need to be aware that there are hundreds of technology companies that may already own the seminal foundation patents. Many companies new to the IoT market may have strong and expansive portfolio positions for assertion. This makes it difficult at best to discern whether or not IoT inventions are really new or just recycled technology.

The importance of a quality patent search for strategic monetization of innovation

Properly used, a qualified search can be one of the most cost-effective and valuable tools a company can have to not only capture and create innovation, but also to avoid being sued for infringement. This dual purpose for a search is important to understand. A novelty search is intended to determine whether a patent can likely be obtained, but sometimes it will be quite useful to undertake a more comprehensive analysis of the search results to determine whether moving forward might result in a charge of patent infringement. In order to maximize the value of a company’s portfolio it is critical for business managers to understand the of importance of a search— including what kinds of searches are available, why to consider search before filing patent application, when to get searches, who should conduct and review search, and how to strategically use search result.

TPP and Protection of Encrypted Program-Carrying Satellite and Cable Signals

It is already a criminal act in the United States to intercept and/or decode an encrypted satellite signal. See 18 U.S.C. §2511. Many in the United States may not realize that similar provisions criminalizing interception of an encrypted program-carrying satellite signal are included in Free Trade Agreements already concluded by the U.S., including the North American Free Trade Agreement. With Article QQ.H.9, one might be tempted to read Paragraph 1 as permitting the possession and use of a device which can receive and de-crypt a program-carrying satellite signal (without authorization of the signal’s lawful distributor), although any of the nefarious activities enumerated in Paragraph 1(a) would be criminal. However, Footnote 153 makes clear that receipt and use, or receipt and decoding of the signal are also distinct, criminal activities.

Trans-Pacific Partnership – What do IP practitioners need to know?

Trade partners negotiating the Tans-Pacific Partnership trade deal have reached an agreement. The agreement details have not been released, and likely will not be submitted to Congress for a mandatory review for at least a month, perhaps longer… Presently the United States provides 12 years of data exclusivity for these types of medicines, but the TPP agreement reportedly knocks that term of protection down to 5 years. While the term of data exclusivity is not one in the same with reducing the term of market exclusivity, there is little doubt that more limited data exclusivity would likely lead to significant negative consequences for the bio-pharma industry.

Strong IP protection provides inventors and creators the economic freedom to create

Critics argue that intellectual property is bad for innovation in part because it allows for “monopolies” that prevent the public from using certain creations without permission for a period of time. As a preliminary matter, the use of the misleading scare-term “monopolies” to describe property rights in inventive and creative labor is clearly an attempt to skew the debate from the outset. After all, you wouldn’t call property rights in hard-copy creations, like the crops a farmer harvested, “monopolies” in those creations. Furthermore, if public access is the concern, a system that fails to provide inventors and creators the economic freedom to create things to market to the public in the first place will be far more harmful than a system that secures justly-earned property rights in inventors’ and artists’ productive labors.

Tackling the Intellectual Property Battle

The ownership of ideas and creations are among the most valuable assets to any company. Businesses invest in these ideas and rights and use the value they create to help promote and grow business for years to come. Printer manufacturers, for example, invest heavily in new ink and toner technologies and realize a return over the life of the device through the sale of supplies and consumables. When third-party supplies manufacturers, particularly manufacturers of new build ‘cloned products’, violate IP rights and take products to market, they are effectively stealing from the original equipment manufacturer (OEM) – reducing the ability of the OEM to realize the full potential of their investment and, through their sale, securing financial benefit from the OEM who receives no compensation for this lost revenue. These organizations effectively take a ‘free ride’.

PTO Report on Confirmatory Genetic Testing: A Worthwhile Effort But Not Far Enough

The USPTO has released its ‘Report on Confirmatory Genetic Diagnostic Testing,’ which was prepared to fulfill the requirements of §27 of the Leahy-Smith America Invents Act. The USPTO did make an interesting observation that has been reflected in its patent examining guidelines. The USPTO Report concludes that ‘it is unlikely that exclusive provision of a diagnostic test, whether for an original diagnosis or to confirm the original result, will be possible based on patenting and licensing behavior.’ This statement reinforces the USPTO’s prior broad interpretations of the Court’s findings in Mayo and Myriad. Of note is that in the USPTO Report, the USPTO adopts the Supreme Court’s factually and scientifically unsupported distinction between genomic DNA and cDNA.