Posts Tagged: "International"

Some have dubbed it the modern-day gold rush while skeptics warn of the hostile attitude of the current administration in Washington D.C. Whatever the view there is no denying that the marijuana legalization landscape is contentious and demands attention, including from trademark attorneys who will increasingly see their clients interested in cannabis related business activities, and consequently in obtaining cannabis trademarks.

Founded in 1967 by Indonesia, Malaysia, the Philippines, Singapore, and Thailand, the Association of Southeast Asian Nations (ASEAN) is a regional organization that aims to “accelerate economic growth, social progress, and sociocultural evolution among its members.” The organization’s membership has subsequently expanded to ten, with the induction of Brunei, Cambodia, Laos, Myanmar, and Vietnam. Collectively, the ten economies constitute an economic powerhouse; the ASEAN Economic Community (AEC) was the third largest Asian economy and the seventh largest global economy in 2014, as per the ASEAN website. Further, the AEC is expected to grow at a feverish pace of 7% per annum and is touted to be the fourth largest economy in the world by 2030 (Ken Moriyasu; 2016).

The United States was once again the top ranked country in the U.S. Chamber of Commerce’s annual Global IP Index for 2017, but the rankings are closer than ever. The closeness of the overall rankings was significantly influenced by the U.S. tumbling to 10th in terms of patents. Join Gene Quinn, patent attorney and founder of IPWatchdog.com, for a free webinar webinar discussion – Global Patent Landscape: Where to File and Why – on Wednesday, April 5, 2017, at 12pm ET.

The UK is the fifth largest economy in the world, so I have little doubt that companies would pay solid money to protect their interest in that country alone, however in our modern day and age the concept of mutual recognition of protections is ever important to protect innovation. Therefore in order to pull this off the UK would have to make Patents registered in its country either totally mutually exclusive (effectively taking what is already there and making all new patents register in the region) or partner with the largest commonwealth in the world and expand upon current patent treaties and mutual recognition, in essence becoming more of a power house than the EU currently is. For those of you not in the Know countries like Canada, BVI, Australia, New Zealand are all members of the English Commonwealth. It’s the reason why the British Queen features on their currency, stamps, and many other administrative areas.

The sunrise period for opting out traditional European patents is planned to start on 1 September 2017. Since such opt-outs will now be done electronically through the UPC case management system, it will take less than a minute to opt out a patent and the opt-out will be on the register immediately… For pending patent applications that are close to grant, the applicants need to decide whether they want to apply for unitary effect and take the necessary preparations, including a request to the EPO not to publish the mention of the grant of the patent prior to 1 December 2017 and filing a request for unitary effect with the EPO during the sunrise period.

There are several different forms of intellectual property rights available in the United Kingdom, each with its own formality, level of protection, and duration period. It is crucial that any individual who creates a product, or who believes that they would benefit through protecting their intellectual property ensures that they follow the correct procedure… Many individuals will incorrectly assert a claim for copyright infringement. However, copyright infringement is a niche protection right and is only afforded to ‘artistic output’. No formality is required to register this right in the United Kingdom, which is different than U.S. practice.

Guidelines, set to go into effect on April 1st in China, continue to leave the window open for software and business method patents. For software patents, patent applicants will be able to claim a medium plus computer program process instead of claiming means plus function, a term which has typically been narrowly construed by SIPO examiners. As ZY Partners’ analysis notes, previously ineligible claims directed at “a computer program product” or “a machine-readable medium” will now be eligible for patent protection in China…. Given this trend towards delegitimizing the patentability of inventions within valuable growth sectors in the U.S., it’s particularly galling to see that China, often portrayed as the United States’ top economic competitor, has been moving in the opposite direction, even if only slightly. Last October, China’s State Intellectual Property Office (SIPO) released revised guidelines for its patent examiners and some were quick to note that the revised guidelines were friendlier to both software and business method patents.

In yet another reversal of the Federal Circuit, the Supreme Court yesterday held that liability under § 271(f)(1) of the Patent Act requires more than one component part of a multicomponent patented invention to be shipped abroad for assembly, no matter how important or critical that one component may be. Life Techs. Corp. v. Promega Corp.,(U.S. Feb. 22, 2017) 580 U.S. ___, slip opinion at *8 (No. 14-1538)… Writing for the Court, Justice Sotomayor rejected the case-specific approach of the Federal Circuit. The Supreme Court analyzed the ambiguous term “substantial” in the full context of the statute. Based on this context approach, the Court reasoned that “substantial” is best understood in a purely quantitative sense, as opposed to the qualitative importance of the component approach championed by Promega.

The problem-solution paradigm has become a cornerstone of patentability in Europe. If the invention cannot be reduced to the format of a technical solution to a technical problem, this could be a sign that either the supposed invention is non-technical, or the contribution over the state of the art is non-technical. In Europe, non technical inventions are excluded much in the same way as abstract ideas are deemed non-patent eligible in the US. Inventions that make no technical contribution are refused for obviousness. The EPC and the subsequent case law do not have a precise definition of what is technical (non-abstract) and non-technical (abstract). Nevertheless there is a growing body of case law on inventions which involve a mix of technical features and non technical features and that are refused for lack of inventive step because the non-technical features are disregarded.

This new e-Privacy Regulation, if adopted, will replace the current e-Privacy Directive and will establish, together with the General Data Protection Regulation, GDPR, a new privacy legal framework for electronic communications. The proposal aims to be lex specialis to the GDPR. Probably to ensure consistency with the new privacy legal framework for electronic communications, the entry into force provision of the leaked text has been amended to state expressly that the e-Privacy Regulation will come into force on the same date as the GDPR (25 May 2018). With many legislative hurdles still remaining before it is approved, this represents an ambitious timeline for EU legislators.

NPEs are uniquely positioned to help China by attacking foreign entities to clear the way for Chinese companies by exerting pressure in ways that only NPEs can. Even if Chinese semiconductor companies had the necessary patents and experience to engage their foreign competitors, they would risk retaliation from these foreign parties. NPEs, on the other hand, can unilaterally attack foreigners without fear of retaliatory patent suits. Although there are a few of antitrust issues, I do not believe that NPEs that act in the best interest of China should, or will, be attacked by the NDRC or any other antitrust agency in China.

There is a plausible case that the US law on obviousness is indeed compatible with the EPO problem-and-solution approach. It could even be said that the steps of the problem-and-solution approach appear to have been inspired by US law and practice! Under present working styles, USPTO examiners concentrate on the claims and spend little or no time reading the description. If they are to initiate obviousness rejections using the problem-and-solution format they would have to change habits and consult the description to locate any effects related to the distinguishing features.

On December 8th, famed basketball star Michael Jordan was partially successful in a legal action filed in Chinese courts over the use of his name and likeness on shoes and sportswear marketed by a domestic Chinese firm. The case is further proof of a major change in the fortunes of foreign intellectual property owners in the highest courts of the world’s second-largest economy. The Jordan trademark suit goes back to 2012 when the suit was filed against Qiaodan Sports, a sportswear manufacturer operating thousands of retail locations in China which was founded in 2000 according to business information reported by Bloomberg.

In Europe and the US, patentability depends on a showing of inventiveness that is based on similar legal requirements but practice differs substantially and the resulting patent quality varies… At the USPTO, patent applications are rejected for obviousness (35 USC §103) already in a first Office Action by an examiner and his/her supervisor… Over in Europe the examination of inventive step begins with an opinion following which the applicant is invited to comment/amend.

In late October, China’s State Intellectual Property Office (SIPO) released a set of guidelines for Chinese patent examiners that revises the last guidelines put in place in 2010. Although SIPO has made the revised guidelines available online in the Chinese language only, analysis of those guidelines by the European Patent Office (EPO) and others indicates that, in some important ways, the new guidelines represent a veritable inverse of the current patent examination environment seen here in the United States… China is about to become friendlier to software patents in particular and patent owners more generally by reducing the complexity of prosecution procedures and making more information publicly available. Given the large number of patent applications being filed with China’s patent office, a high percentage of which are not filed with foreign offices as well, and the growing preference for China as a patent infringement litigation venue, it’s likely that these new guidelines are further proof of the growing divide of IP regimes in the United States and China which, if left unchecked, will probably be to the detriment of the U.S. and its economic prospects in future years.