The United States Patent and Trademark (USPTO) today announced a “National Strategy for Inclusive Innovation” in advance of a World IP Day event being held on Capitol Hill.  The Strategy was developed with support from the Council for Inclusive Innovation (CI2) and, according to a USPTO press release, “aims to lift communities, grow the economy, create quality jobs, and address global challenges by increasing participation in STEM, inventorship and innovation among youth and those from historically underrepresented and underresourced communities.”

On April 30, the Federal Trade Commission (FTC) announced that it was expanding its campaign against allegedly improper patent listings in the U.S. Food & Drug Administration’s (FDA) Orange Book. In letters to 10 pharmaceutical companies, the FTC disputed the relevancy of more than 300 patents protecting aspects of drugs that have received market approval from the FDA. While the FTC claims that such action is necessary to improve Americans’ access to affordable prescription drugs, pharmaceutical industry representatives have questioned the propriety of this enforcement campaign given two decades of requests from industry stakeholders for greater clarity on Orange Book listings.

Standard Essential Patent (SEP) litigation is global and SEP owners often follow a strategy to enforce their SEPs in multiple jurisdictions. Beyond the typical venues in the United States, Europe, or China, SEP cases are increasingly also resolved in less typical jurisdictions such as Brazil, Colombia and India. One country that has been largely ignored in global SEP enforcement strategies, however, is Japan. This is in many ways surprising given that Japan the  fourth largest economy in the world and has over 121 million citizens. This huge buyers’ market has high demands in expensive smartphones or other smart devices, as well as one of the largest automotive industries.

The U.S. Senate Judiciary Committee’s Subcommittee on Intellectual Property met today to hear from six witnesses about a recently-proposed bill to curb unauthorized uses via artificial intelligence (AI) of an individual’s voice and likeness.   The “Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2023” (NO FAKES Act) was introduced in October 2023 by Senator and Chair of the IP Subcommittee Chris Coons (D-DE) and Senators Marsha Blackburn (R-TN), Amy Klobuchar (D-MN), and Thom Tillis (R-NC). The goal of the bill is to “protect the voice and visual likenesses of individuals from unfair use through generative artificial intelligence (GAI).”

The U.S. Court of Appeals for the Federal Circuit (CAFC) today issued a precedential trademark decision affirming a Trademark Trial and Appeal Board (TTAB) ruling that sustained Framboise Holdings, Inc.’s opposition and refused registration of Jalmar Araujo’s mark #TODECACHO. Framboise alleged ownership of the pictured design mark (left) based on prior use of the mark in the United States in connection with hair products, including shampoo, conditioner, hair mask treatments, hair cream, curly hair activator, hair jelly, etc. When Araujo applied to register U.S. Trademark Application Serial No. 88/712823 #TODECACHO as a standard character mark for hair combs, Framboise opposed.

President Biden issued an executive order (EO) on artificial intelligence on October 30, 2023,  announcing a series of agency directives for managing risks related to the use of AI technologies. Now, the Department of Commerce (DOC) has announced several new actions aimed at implementing that order. On Monday, April 29, the DOC said the National Institute of Standards and Technology (NIST) has released four draft publications on improving safety and security of AI technologies and also launched a program that will help to distinguish between content produced by humans and content produced by AI. Additionally, the U.S. Patent and Trademark Office (USPTO) today published a request for comment (RFC) on “how AI could affect evaluations of how the level of ordinary skills in the arts are made to determine if an invention is patentable under U.S. law.”

Epstein Becker & Green is seeking an intellectual property associate to join its Health Care & Life Sciences practice in our Columbus, OH, Nashville, TN, Pittsburgh PA, Portland, OR, or Princeton, NJ, office. This is a full-time, permanent position. Candidates should have a minimum of three years of experience in patent prosecution within the life sciences industry and a familiarity with technology transactions such as collaborations, licensing, outsourcing, and joint venture agreements. Experience in evaluating and managing patent, trademark, and copyright portfolios, performing IP due diligence for corporate transactions, and handling strategic commercial agreements preferred. Candidates must possess strong academic credentials and exhibit excellent research and writing skills. Juris Doctorate degree and admission to the USPTO are required. Admission to practice law in Ohio, Tennessee, Pennsylvania, Oregon, or New Jersey is mandatory.

When the Center for Strategic and International Studies recently hosted a forum on IP, innovation, national security and geopolitical competition, there was an active discussion about the role of IP – intellectual property – in achieving those other outcomes. An interesting debate emerged over the words that describe those IP functions, suggesting that policy can be ill-served by some habitually used, but perhaps not descriptively accurate, vocabulary. The upshot: words matter.  

On Thursday, April 25, the Federal Communications Commission (FCC) held an open meeting during which the agency’s commissioners voted 3-2 to restore net neutrality rules that reclassifies Internet broadband providers as common carriers, dramatically increasing regulatory oversight on such companies operating in the United States. This partisan victory for the Democratic Party membership of the FCC is raising opposition from taxpayer advocacy groups and Republican lawmakers who believe that the return of net neutrality rules will do much to harm America’s leadership in broadband Internet.

GlaxoSmithKline filed a four-count civil action for patent infringement in the United States District Court for the District of Delaware late last week seeking damages for Pfizer and BioNTech’s infringing manufacture, use, sale and marketing of both the original “monovalent” and “bivalent” Comirnaty COVID-19 vaccines. The COVID-19 vaccine was quickly rolled out compared to other vaccines in the past and many pharmaceutical companies benefited financially. However, GSK contends their competitors, Pfizer Inc. and Pharmacia & Upjohn Co. LLC (collectively Pfizer) and BioNTech SE, BioNTech Manufacturing GMBH and BioNTech US Inc. (collectively BioNTech) developed their vaccines with GSK’s patented inventions created about a decade earlier.

A recent Post Grant Review (PGR) petition raises several interesting questions, including whether the crossing of two varieties of corn previously crossed and already owned by the patent owner results in a non-obvious claimed invention. See Inari Agriculture, Inc. v. Pioneer Hi-Bred International, Inc., PGR2024-00025. But as interesting as that obviousness question may be, and how easy it seems it is to get a utility plant patent issued, the question of greater concern for the system relates to which test for indefiniteness the U.S. Patent and Trademark Office (USPTO) should be using, and why.

This week in Other Barks and Bites: Caltech drops a patent infringement lawsuit against HP; the world celebrates World Intellectual Property Day; GSK sues Pfizer accusing the company of infringing on its mRNA patents.

Late last year, , the United States International Trade Commission (ITC) announced that it would issue a limited exclusion order (LEO) and cease and desist order (CDO) against Apple, Inc. prohibiting Apple from importing and selling its Apple Watch (Series 6 and 7) products in the United States. The case was Certain Light-Based Physiological Measurement Devices and Components Thereof, Investigation No. 337-TA-1276 (“Light-Based Physiological Measurement Devices”), a “Section 337” patent infringement investigation before the ITC that was initiated by Masimo Corporation. Adding insult to injury, the ITC refused to stay these remedial orders pending appeal, putting at immediate risk continued sales of the Apple Watch in the United States. These decisions sent shock waves across both the tech industry and the legal community.

The World Intellectual Property Organization (WIPO) established World IP Day (WIPD) 19 years ago to celebrate the day on which the WIPO Convention entered into force: April 26, 1970. And this year, WIPO has set as the theme for World IP Day 2024, “IP and the SDGs: Building our common future with innovation and creativity.” According to WIPO’s website, in order to reach the United Nations’ Sustainable Development Goals (SDGs), “we need to re-think how we live, work and play.” Intellectual property is, of course, a major part of this as the engine for “innovative and creative solutions that are so crucial to building our common future.”

Picture this: You own a women’s swimwear business. You engage your customers by curating eye-popping images on social media that exude athleticism and style. While browsing online, you find a photo posted by someone else of a woman in one of your pink swimsuits diving into a pool. You instantly know that this woman is exactly who your customers want to be! You share it on your profile with the caption, “Making waves wherever I go” and link to your swimsuit for purchase. Within hours the post racks up 50,000 likes and 2,000 swimsuit orders. But the excitement quickly wears off when you receive an email from a law firm representing the photographer, claiming you infringed her copyright.