Posts Tagged: "intellectual property"

The Enlarged Board of Appeal (EBA) of the European Patent Office published opinion G 3/19 “Pepper” on Thursday, May 14, holding that plants and animals exclusively obtained by means of an essentially biological process are excluded from patentability. The opinion, which arose via a referral from the EPO President, also set out principles regarding the interpretation of the European Patent Convention (EPC) that could apply in other technical fields. 

On May 11, 2016, President Obama signed into the law the Defend Trade Secrets Act (DTSA) which extended the Economic Espionage Act of 1996 (EEA), which provides a broad basis for civil federal jurisdiction for the theft of trade secret thefts. Thus, trade secret owners can sue in federal court so long as there is a connection between the trade secret and interstate or foreign commerce. However, the DTSA does not preempt states laws and parties can still bring an action under a state’s version of the Uniform Trade Secret Law. Two recent reports highlight a number of significant findings that are relevant to companies looking to protect and defend their trade secrets: In April 2020, finance consulting firm Stout Risius Ross, LLC published its 2020 “Trends in Trade Secret Litigation Report (the SR) and Lex Machina released its 2020 Trade Secret Litigation Report (LMR), in which it summarized data from the past decade and compared it against data from the previous year’s report.

The Federal Circuit’s recent Uniloc v. LG Electronics decision (April 30, 2020) may be very helpful for subject matter eligibility. This Federal Circuit panel (Moore, Reyna & Taranto) held software patent claims to be patent eligible subject matter. I find the decision clearly written, with many interesting aspects. What strikes me most, though, is that seemingly very broad software patent claims were held eligible. Additionally, the decision highlights the perils of concession in a 12(b)(6) motion to dismiss.

Recently, the U.S. Court of Appeals for the Federal Circuit has issued several rulings defining some of the contours of the impact of its decision last year in Arthrex v. Smith & Nephew, in which the Federal Circuit found that administrative patent judges (APJs) at the Patent Trial and Appeal Board (PTAB) had been unconstitutionally appointed because they were principal officers under the Appointments Clause. The Federal Circuit’s recent decisions show several limits to the impact of Arthrex, which has spurred a large number of PTAB appeals since the Federal Circuit denied a motion to stay issuance of the Arthrex mandate this March, requiring the PTAB to conduct remanded proceedings under the case.

Is imitation really the highest form of flattery? Nintendo might not think so after seeing dbrand’s latest Switch skin set. The Nintendo Switch has become extremely popular amidst social distancing, work from home, and stay at home requirements during the COVID-19 pandemic. The console’s combination of handheld and traditional features, along with its wide variety of games, appeals to a large audience and provides an engaging way to spend time at home.

On May 13, 2020, the United States Court of Appeals for the Federal Circuit (CAFC) upheld a decision of the United States District Court for the District of Minnesota in Schwendimann v. Arkwright Advanced Coating, Inc. In particular, the CAFC affirmed the District Court’s holding that Jodi A. Schwendimann was a patentee entitled to pursue infringement claims despite the patent assignment being improperly recorded at the time the infringement action was filed.

As predicted following oral arguments, the U.S. Supreme Court today ruled that Marcel Fashion Groups, Inc. cannot preclude Lucky Brand Dungarees, Inc. from raising new defenses under federal preclusion principles, but left open the possibility that it may be appropriate to apply claim preclusion to defenses in certain circumstances. The opinion was authored by Justice Sotomayor. The Second Circuit decision was ultimately reversed and the case remanded, continuing the long battle between the two brands.

Technology innovation in artificial intelligence (AI) is accelerating at a breakneck pace, and the ability to innovate, adopt and integrate AI techniques to evolve business models will separate those businesses that recover from the COVID-19 pandemic from those that will fail. Four artificial intelligence technologies are poised to lead the global economy out of the pandemic-induced recession. Applications for these technologies across verticals abound. Smart strategic and financial investors are scouring the market for new ways to digitally disrupt established businesses. Throughout the COVID-19 pandemic, the importance of sharing critical information across countries about the spread of coronavirus has been emphasized. However, much remains unsaid about how COVID-19 could have been managed more efficiently by using advanced data technologies that have transformed businesses. Here are four areas where AI could change the face of the post-COVID economy

The U.S. District Court for the District of Massachusetts on May 4 denied a motion for partial summary judgment by Palomar Technologies, Inc., holding that the estoppel bar relating to inter partes review (IPR) proceedings did not apply to two prior art references that had not been raised in a prior IPR hearing at the Patent Trial and Appeal Board (PTAB). Palomar brought suit against MRSI Systems, LLC in the Southern District of California on July 6, 2015 for infringement of Palomar’s U.S. Patent No. 6,776,327. In October of 2015, MRSI petitioned the PTAB for IPR of all 48 claims of the ‘327 Patent on the grounds of anticipation or obviousness based on five prior art references. The PTAB instituted and ultimately upheld 47 of the 48 claims.

On May 8, the U.S. District Court for the District of Colorado granted National Geographic’s Motion to Dismiss Stouffer’s amended complaint in Stouffer v. National Geographic Partners, LLC. Stouffer sued National Geographic for trademark infringement, unfair competition, and deceptive trade practices. In response, National Geographic asserted that Stouffer’s claims were trademark-based and must be dismissed in order to protect National Geographic’s First Amendment interests. The Court addressed the question of what protections the First Amendment provides to those accused of trademark infringement and ultimately granted National Geographic’s motion to dismiss with prejudice.

Since the Supreme Court’s Alice decision in 2014, many patent prosecutors in Industrial & Mechanical Technologies practice groups have been spared the headaches that the decision created for their colleagues in Electrical & Computer Technologies practice groups. So, it came as quite a surprise, perhaps unwelcome to some, when the Federal Circuit decided American Axle v. Neapco, invalidating claims for a method for manufacturing propshafts as being directed to ineligible subject matter under Section 101 of the U.S. Patent Act…. Almost six months later, it appears that Neapco was right, at least when it comes to patent prosecution in the mechanical arts. Indeed, both anecdotal evidence and prosecution data aggregated by Juristat demonstrate that the American Axle decision has not affected the prosecution of mechanical inventions before the USPTO in any significant way.

It has become difficult to understand why the Federal Circuit does what it does in any number of rulings, but its decisions relating to patent eligibility have set patent law back several generations, turned precedent on its head, ignored the Patent Act passed by Congress, and unnecessarily and inexplicably expanded upon bad Supreme Court precedent. Somewhere along the way, the Federal Circuit lost its footing in a spectacularly demoralizing fashion. Patents must be stopped at all costs—or so they seem to believe—and 35 U.S.C. 101 is the tool du jour.

Whoever wrote the America Invents Act (AIA) left out the U.S. Patent and Trademark Office (USPTO) examiners. The examiner on any given patent at issue in an inter partes review (IPR) proceeding at the Patent Trial and Appeal Board (PTAB) agreed with the patent holder that the patent claims, as amended, were valid. Examiners are specialists, working under Supervisory Patent Examiners (SPEs), who are even more experienced, though in very narrow fields. As such, they knew the state of the art at the time a patent was being prosecuted.

This week in Washington, D.C., both houses of Congress will host a short hearing schedule as D.C. begins a slow return to some semblance of normalcy during the COVID-19 pandemic. In the Senate, committee hearings will focus on a recent governmental cybersecurity report as well as ways to improve broadband access during the COVID-19 crisis. In the House of Representatives, a joint hearing of the House Subcommittees on Health and Energy and Commerce will explore ways to promote the development of a COVID-19 vaccine without sacrificing scientific integrity. Elsewhere, the Brookings Institution will discuss the issues to space travel posed by orbiting space junk, and the Information Technology and Innovation Foundation discusses a new vision for promoting the commercialization of energy innovation. The week got started with the first day of the KnowIt IP conference, being conducted virtually, which will explore a bevy of IP topics over three days, including a FRAND/SEP roundtable on Monday that featured IPWatchdog President and CEO Gene Quinn.

Trademarks consisting solely of a color applied to products or their packaging have been protectable under U.S. law for decades—if they meet a heightened standard for protection. Since the U.S. Supreme Court decisions in Qualitex Co. v. Jacobson Products Co. and Wal-Mart Stores, Inc. v. Samara Brothers, Inc., an applicant for a color mark has been required to prove that the color actually serves as an indicator of source in the minds of consumers by showing that the mark has acquired distinctiveness (otherwise known as secondary meaning). Yet that longstanding requirement no longer applies to all color marks, after a new decision by the Federal Circuit in In re Forney, which opens the door for the first time to certain color marks gaining protection as inherently distinctive.