Posts Tagged: "intellectual property"

Intellectual property (IP) is a “bridge to collaboration” between companies, and not just a “weapon of competitive warfare.” The U.S. Patent and Trademark Office (USPTO) launched an IP licensing marketplace, “Patents 4 Partnerships” (P4P), on May 4 that is a platform furthering this ideology. The P4P platform is initially being limited to technologies related to COVID-19 to address the ongoing pandemic. However, USPTO Director Andrei Iancu seems prepared to expand the platform to include other technologies, including artificial intelligence (AI) innovations and cancer treatments, based on interest and engagement during this pilot phase.

On May 26, Zaxcom filed an appeal brief with the United States Court of Appeals for the Federal Circuit (CAFC) requesting review of the Patent Trial and Appeal Board (PTAB) decision in which the PTAB invalidated claims directed to Zaxcom’s award winning wireless microphone technology.  Zaxcom appealed the inter partes review (IPR) proceeding, which was filed by Lectrosonics, Inc., arguing that the PTAB misconstrued the patent claims and failed to properly consider evidence of industry praise.

The World Intellectual Property Organization (WIPO) has published a Revised Issue Paper on Artificial Intelligence and IP Policy. The Revised Issues Paper updates the Draft Issues Paper published in December 2019 with the addition of a glossary and sections on trademarks and trade secrets, and an expansion of the sections covering patents, copyright, infringement and deep fakes. As reported by IPWatchdog in February, WIPO received more than 250 submissions from IP offices, companies, organizations and individuals in response to the draft paper. These have been taken into account in the Revised Issues Paper, which lists a large number of questions (many of them not included in the draft paper) under 16 separate issues.

This week in Washington IP events, the Senate IP Subcommittee convenes a hearing to look at recent recommendations made by the U.S. Copyright Office regarding the systems of receiving copyright claim notices and taking down infringing content from online platforms under provisions of the Digital Millennium Copyright Act. While Congress remains mostly quiet, various think tanks will host online video webinars including the Center for Strategic & International Studies, which will explore a fictional depiction of the impact of the robotic revolution as well as innovative responses to the COVID-19 pandemic being developed by the retail and apparel industry.

An employee comes to you with a recipe for your competitor’s “secret sauce.” You know she worked for your competitor before coming to work for you. How do you respond? It’s an important question, because it may go to the core integrity of your organization and because exploring this trade secret conundrum may offer some decision-making principles that businesses can apply when addressing other difficult decisions that they are being called to make in these stressful COVID-19 times.  

Like most countries, Brazil has been facing severe restrictions in an attempt to slow down the spread of COVID-19.  Non-essential services are currently closed in almost all metropolitan areas and authorities are discussing plans to resume activities while the number of fatalities reaches its peak. In Brazil, the courts have approximately 450,000 employees, including more than 18,000 judges. If we also consider 1.2 million attorneys, it is reasonable to say that the justice system in Brazil involves at least 1.65 million people. The Brazilian Patent and Trademark Office (BPTO) operates on a smaller scale, with no more than 1,000 public officials on duty. The IP community is on average quite smaller in comparison to other areas, such as banking and M&A, but still extremely active. The BPTO hears over 250,000 proceedings per year, including patent, trademark, design applications and contracts.

On May 14, the U.S. Court of Appeals for the Eleventh Circuit reversed a decision of the U. S. District Court for the Southern District of Florida in Engineered Tax Services, Inc., v. Scarpello Consulting, Inc. The district court granted summary judgment in favor of Scarpello, asserting that no reasonable jury could find ENGINEERED TAX SERVICES to be a valid trademark due to a lack of distinctiveness. Engineered Tax Services (ETS) appealed to the Eleventh Circuit, which found that a reasonable jury could have found the mark to be inherently distinctive.

On May 21, the U.S. Copyright Office published a report on Section 512 of Title 17 of the U.S. Code, which governs limitations on copyright liability to materials published online. Safe harbor provisions in Section 512, which were enacted as part of the Digital Millennium Copyright Act (DMCA), have allowed online service providers to operate tech platforms without facing liability for infringing content posted on those platforms. While the Copyright Office acknowledges that the careful balance intended to be struck by Section 512 has become unbalanced, to the detriment of rights holders, the report only recommends that Congress fine-tune certain aspects of Section 512 to restore this balance of competing interests.

Last week, the United States Court of Appeals for the Federal Circuit (CAFC) affirmed a decision on appeal from the United States Patent and Trademark Office (USPTO) Patent Trial and Appeal Board  (PTAB) in ESIP Series 2, LLC, v. Puzhen Life USA, LLC. The CAFC found no error in the PTAB’s holding that the claims at issue were obvious and determined that the PTAB’s decision to institute inter partes review (IPR) despite ESIP’s contention that Puzhen failed to identify all real parties in interest was final and non-appealable.

In 2018, after years of planning, the General Data Protection Regulation (GDPR) was introduced by authorities across Europe. It aimed to modernize the laws that protect individuals’ private information; laws which hadn’t been updated for nearly two decades. The GDPR was designed to give formidable power to data protection authorities. The threat of fines of up to €20 million or up to 4% of an organization’s global annual turnover (depending on which is greater) had been established. Two years on, although there have been over 160,000 data breaches reported, only a small number of companies have been issued with a punishment…. Enforcement has indeed varied widely across countries, and last year we caught a glimpse of what the data breach landscape may look like in terms of fines in the UK. The Information Commissioner’s Office (ICO) has issued intentions to fine British Airways £183 million, in addition to a potential £3 billion compensation pay-out, after the personal data of around 500,000 customers was exposed from their website and app. Marriott have also been issued with an intention to fine in the sum of £99m. In comparison, almost a third of countries reportedly have yet to issue a single fine.

On May 15, the Chamberlain Group Inc. filed a petition for a writ of certiorari asking the U.S. Supreme Court to review the U.S. Court of Appeals for the Federal Circuit’s (CAFC) decision reversing a district court’s holding that Chamberlain’s claims covering a “moveable barrier operator” were patent-eligible under Section 101. If the Supreme Court grants review, it will consider whether the Federal Circuit “improperly expanded § 101’s narrow implicit exceptions by failing to properly assess Chamberlain’s claims ‘as a whole,’ where the claims recite an improvement to a machine and leave ample room for other inventors to apply any underlying abstract principles in different ways.”

In March, Chrimar Systems, Inc. filed a petition for certiorari asking the U.S. Supreme Court to decide: 1) whether the Federal Circuit may apply a finality standard for patent cases that conflicts with the standard applied by the Supreme Court and all other circuit courts in non-patent cases, and 2) whether a final judgment of liability and damages that has been affirmed on appeal may be reversed based on the decision of an administrative agency. On April 23, the Court requested a response from ALE USA, Inc., which had waived its right to respond earlier that month. As a result, the deadline for amicus briefs was reset and one more amicus, Baxter International, submitted its brief in support of Chrimar on May 22, followed by ALE’s brief in opposition to the petition on May 26.

With 27 new Patent Trial and Appeal Board (PTAB) filings—25 inter partes reviews (IPRs), one post grant review (PGR) and one covered business method review (CBM), the first in months—this week’s numbers rested roughly within the new normal, with district court complaints flatlining at around 70 (i.e., 68 this week). That included five petitions on five patents owned by SAP brought by the Teradata corporation; on the District Court side, lots of small-potatoes NPE campaigns complemented a number of WSOU filings against their latest target, Dell EMC, as well as a few small company disputes, and one suit against the Her Majesty the Queen in Right of Canada.

Intangible assets today make up nearly 84% of enterprise value for companies listed on the S&P 500. This material growth in intellectual property as an asset on U.S. company balance sheets has placed increased demands on the office of General Counsel. Protecting intangible assets against computer theft and pursuing litigation against wrongdoers has become a major and timely concern, especially in the context of an increasingly virtual world due to the global pandemic. A recent brazen and sophisticated computer intrusion into the records of over 145 million Americans launched from computer hackers based in China led to criminal prosecutions under the Computer Fraud and Abuse Act (CFAA).

Joe Mullin, a policy analyst at the the Electronic Frontier Foundation (EFF), recently penned a misleading article about the Inventor Rights Act  (H.R. 5478). He says it will promote and protect patent trolls. To unravel what he really means, it is first necessary to understand early stage investment, and from there, to define what a “patent troll” truly is. Through organizations like EFF and their companion organization, Engine, Big Tech often writes scary stories about how patent trolls hide under bridges for no other reason than to utterly destroy innovation. Very scary stuff. Scary because this fantasy has misled the courts, Congress, and multiple administrations, convincing them to change the law in ways that destroyed America’s startup engine. Scary because early stage investment is fleeing to China at the expense of American startups. Scary because it has created perpetual Big Tech monopolies with no allegiance to the United States that are immune to American competition and taxes. These forces now control what we read and say, how we vote, and even what we believe to be true.