Posts Tagged: "intellectual property"

Patents, Prosperity and Political Systems

Unfortunately, we are going through another period where many see the triumvirate of big government, big business and big labor guiding an economy stuck at a 2% growth rate as preferable to the messy “creative destruction” of free enterprise capitalism. The emphasis on making sure the existing economic pie is fairly distributed rather than grown leads to increased hostility to the intellectual property system. We see arguments that patents harm rather than stimulate innovation and hear how much better it would be if they were placed in the public domain or licensed non-exclusively to be more fair. Many have forgotten that our prosperity is the result of inventions that in just a few decades created a standard of living previously unimaginable.

The Sticking Point that Shouldn’t Be: The Role of Pharmaceutical Patents in the TPP Negotiations

The controversy swirling around the Trans-Pacific Partnership (TPP) Trade Agreement sheds light on two critically important but divisive issues: international trade and intellectual property protection for pharmaceuticals. One of the most significant sticking points in the negotiations is the issue of intellectual property protection for pharmaceuticals, specifically data exclusivity. Data exclusivity is a means of correcting a free-riding market failure, providing the innovative firms with a limited period of time in which data from clinical trials and other required testing cannot be used by competing firms to secure market access.

Big Tobacco Heads to Court Over Cigarette Plain Packaging Laws

The British legislation, aimed at curbing demand for cigarettes, requires that all cigarettes be sold in uniform packs with all branding, including colors, logos and other trademarks, removed. Companies are only permitted to print the brand’s name, in a uniform font, size, and location, on the pack, alongside health warnings and deterrent images. Tobacco companies have indicated that they will be left with no choice but to challenge the regulations.

Trademark Bullying: Defending Your Brand or Vexatious Business Tactics?

The USPTO defined the term Trademark Bullying as the vexatious practice of a trademark owner that uses its trademark rights to harass and intimidate another business beyond what the law might be reasonably interpreted to allow. Mirroring the modus operandi exhibited by patent assertion entities and copyright bullies, several creative mark owners have adopted and modified this sue-to-settle paradigm and applied it in the trademark context. In short, trademark trolls—businesses both large and small—aggressively assert rights beyond the scope of trademark protection afforded by the Lanham Act through the issuance of threatening cease-and-desist letters.

Kimble v. Marvel – Supreme Court quiets criticism of per se rule against post-patent royalties

The U.S. Supreme Court’s recent decision in Kimble v. Marvel Entertainment, LLC (2015) rejuvenates a 50-year-old rule that limits collecting patent royalties after a patent expires. On June 22, 2015, the Court upheld its per se Brulotte rule that bars a patent licensor’s collection of royalties for the use of a claimed invention beyond the expiration date of the underlying patent. The Court directly addressed criticisms of this rule, which originated in its Brulotte v. Thys Co. (1964) decision, and foreclosed any speculation about the continued viability of Brulotte’s bright-line rule in current practice.

Law firms are the new target for IP theft: Basic Protections

At a minimum, two-factor authentication rather than a single password, should be used to protect most types of confidential data. With two-factor authentication, the user is required to use two of the following three forms of identification – something they know (password or PIN), something they possess (a token or USB stick) or a physical characteristic of the user (finger swipe) in order to gain access to the data. For more sensitive data, a multi-factor approach offers an even higher degree of security. In multi-factor authentication, a user must use three or more forms of identification. For example, in addition to a password and a token, users are required to answer one or more custom questions, known only to the user.

IP Protection Incentivizes Innovation and Creates Jobs: A Message Worth Repeating

I recently received an inquiry from an IPWatchDog reader, posing several questions about the links between intellectual property protections, innovation and job creation. (Thank you, Marcus!) The interrelated nature of IP, innovation and jobs is essential to economic prosperity and important enough to explore again. Marcus:   I’m curious about two positions that are taken in your writing. First, you state…

Refocusing the TPP Debate – IP Rights are Critical to Improving Public Health

To listen to the critics, one would believe that the Trans-Pacific Partnership (TPP) Trade Agreement marks the end of the world for global health, especially for the poor. They are, in a word, wrong. Admittedly, the TPP Agreement is extremely contentious, but the TPP Agreement contains important provisions regarding intellectual property (IP) rights, especially the standards of protection for pharmaceuticals. If the global community is to truly benefit from the promise of medical progress, we must stop the attack on the IP protections that incentivize innovation and turn our attention to the issues that genuinely inhibit access to medicines.

Patent market dynamics and the impact of Alice and the AIA

The market price plummeted in the second half of 2011, and set off the downward spiral that stormed through the second half of 2013 when the market price reached the record low. There had been no discernible macroeconomic factors to justify the drastic decline in market price during the two years leading up to the end of 2013. As a result, the industry-specific factors might have been the culprit, among which the most prominent is the enacting of America Invents Act (AIA) in September 2011, as demonstrated by the econometric analysis above.

Black Hats Look for Low Hanging Fruit: Law firms are the new target for IP theft

The USPTO has also created an increasingly sophisticated cyber security defense system to protect the nation’s patents and related information. In this multi-layered system, the USPTO guards against virtually every possible type of intrusion, protecting their systems against a multitude of potential denizens, from lone wolf to suspected nation-state Advanced Persistent Threat (APT) attackers. Compared to the USPTO, or even corporations, most law firms are easy targets and the client IP on their networks is low hanging fruit that is all too easily harvested. Too many law firms still view ‘reasonable’ security as signature-based (passwords) access and malware protection, like McAfee, as good enough. Today, it is not nearly enough.

IP Strategies for Changing Times

The vast majority of the assets developed and owned by technology companies are intangible assets, i.e. they reside in their internal information and employees’ brain (Intellectual Capital or “IC”) and the output thereof (Intellectual Property or “IP”). It is estimated that in excess of 85% of the valuation of the NASDAQ Index companies (and of the new global wealth being created) lies in intangible assets. With smaller technology companies, this percentage is sometimes close to 100%. Nowadays, most technology based companies eventually fail or succeed in large part because of the way they handle their intellectual capital assets and convert those into strategic intellectual property assets.

What if we don’t have sufficient intellectual property rights?

Fundamentally, patents facilitate access to VC financing, market entry and job creation. Without patents and an effective IP environment, the process stalls and, in some cases, firms may never emerge. Without adequate IP protection, innovators are unable to attract investments, business creation is slowed and jobs lost. Evidence suggests that this same story plays out, albeit with differing dynamics, across all sorts of firms and all nations. Economic prosperity relies on job growth, and it is clear that strong, effective IP rights have a role to play in creating both.

Chinese Joint Venture Rules and Respect for IP Cause Concerns

These rules of the game for operating within the Chinese market are especially troubling given the lack of respect paid to American patent rights by Chinese firms. Foreign companies operating in China are forced to operate as 50-50 joint ventures with domestic companies and technology transfer has been a part of the price of entering the Chinese market going back to the early 1980s. Nominally, this practice runs afoul of tech transfer regulations that the Chinese government must respect as a member of the World Trade Organization, which it joined in 2001. However, as the economic policy paper points out, the regulations are difficult to enforce, private firms are dissuaded from speaking out publicly about negotiations while entering the Chinese market and the Chinese government stands to gain by letting the system continue as it has.

IP Protection is Key to U.S. Job Creation

While all job creation is valuable to continued economic growth and development, high-skilled, well-paying jobs are the most impactful for sustained economic progress. Evidence suggests that intellectual property (IP) intensive industries are critical to economic growth and vital to national well-being and global competitiveness. Pham (2010) analyzes the role of innovation and the impact of intellectual property rights on U.S. productivity, competitiveness, jobs, wages and exports. His results clearly point to the importance of IP-intensive industries to economic prosperity.

India, Pharmacy to the Developing World, Must Honor IP Rights

Claiming to be the ”Pharmacy to the Developing World”, India argues that their lax intellectual property rights regime is critical to their ability to provide low-cost, quality generic drugs. They are wrong on two counts. First, India needs to honor IP rights, because without effective intellectual property rights, new pharmaceuticals will not be developed and the “Pharmacy to the Developing World” won’t have anything to provide to the developing world, or to anyone. Second, given the quality crisis in the Indian pharmaceutical industry, they shouldn’t be the pharmacy to anyone.