Yesterday, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Global Health Solutions LLC v. Selner affirming the Patent Trial and Appeal Board (PTAB) in the first appeal of a derivation proceeding under the America Invents Act (AIA) litigated at the Board. Although the Federal Circuit corrected the PTAB on the proper analysis for derivation proceedings in light of the AIA’s related first-to-file provisions, the appellate court found no reversible error in the Board’s determination that Marc Selner could not have derived the invention at issue from GHS’ inventor because Selner proved an earlier conception of the invention.
Trade secret litigation presents a fundamental paradox at the pleading stage: on the one hand, a plaintiff must identify their allegedly misappropriated trade secrets with sufficient specificity to survive a motion to dismiss, without providing an overly detailed disclosure in the public complaint that could effectively destroy the trade secret’s protected status, undermining the very foundation of the claim, while also describing the trade secrets sufficiently to provide defendants with adequate notice to mount a defense and ensure compliance with required pleading standards. The federal Defend Trade Secrets Act (DTSA) does not provide explicit identification guidance. At the state level, only California and Massachusetts have enacted statutory provisions addressing certain aspects of trade secret identification under their respective versions of the Uniform Trade Secrets Act.
Patrick Kilbride argues for a system where novel work is protected by law, honoring the American founders’ vision that property rights should be tied to labor. Kilbride asserts, “Innovation is just an economic activity. What sets it apart is its complexity, requiring time, resources, and the right environment to flourish.” He stressed the global necessity for environments that support innovation, highlighting the shared human instinct to create and solve problems. He also explained that if an individual creates something demonstrably new, they deserve ownership and protection, reinforcing the essential role of strong IP laws in the economy.
A split panel of the U.S. Court of Appeals for the Federal Circuit (CAFC) on Tuesday vacated and remanded a Trademark Trial and Appeal Board (TTAB) decision that affirmed the rejection of Erik Brunetti’s applications to register the mark FUCK for various goods and services. The precedential decision was authored by Judge Dyk and Judge Lourie dissented.
The premise of the conversation was to identify solutions for a better patent system that would improve the current state of the system without empowering bad actors, such as patent trolls. I begin the conversation offering each of the panelists an open mic to start so they can set forth their preliminary thoughts… Ultimately, Judge Newman reached her conclusion: “I was wrong. We should not have formed the Federal Circuit and taken it away from the regional circuits. Maybe we should have looked elsewhere… And I have a very simple solution. We give the patent cases back to the regional circuits.”
The topic this week is quantum computers. It is quite a niche topic and finding people who actually know what they’re talking about is not particularly easy, but this is an enormously important topic that we should all know something about because for Artificial Intelligence (AI) to achieve all its full potential, we are going to need much better and much faster computers. And whether it is ultimately quantum computing or whatever comes next, quantum computers are going to be at minimum a bridge to go from where we are right now to where most in the public already think we are in terms of AI sophistication. What are quantum computers and how do they operate? Why are quantum computers necessary for the evolution of AI? Why can’t ordinary computers do what we need to have done? What is the particular advantage of quantum computing versus classical computing power?
This week on IPWatchdog Unleashed we explore the age-old question about whether it is best to keep an innovation as a trade secret or if it makes sense to seek patent protection. And while this question is not new, it is a question that has been getting more attention in recent years as patents in the United States become weaker, which makes trade secrets increasingly look like a viable alternative for a host of different innovations in a variety of technology fields. “I have a pretty easy formula that I use to balance the patent versus the trade secret [question],” Arash Behravesh said. “And that is, can it be reverse engineered? How much does it cost the competitor to reverse engineer it? And if we decide to keep it as a trade secret, how long will it be before somebody potentially discloses the information to the public?”
Fashion company Vetements Group AG filed a petition for a writ of certiorari that was docketed on August 19 asking the U.S. Supreme Court to review a U.S. Court of Appeals for the Federal Circuit (CAFC) decision that upheld the rejection of its trademark applications for the non-English mark VETEMENTS under the doctrine of foreign equivalents. According to the petition, the case presents fundamental questions about whether foreign-language marks should be evaluated based on consumer perception or English translation.
Filing a patent application is one of the most important steps an inventor can take. It protects your priority rights, signals credibility to investors, and can form the foundation of a business. But it’s also one of the easiest steps to get wrong. During my 15 years as a patent examiner at the U.S. Patent and Trademark Office (USPTO), I reviewed thousands of applications. Time and again, I saw filings that were doomed before they even reached my desk. Not because the idea lacked merit, but because inventors rushed ahead without preparing properly.
In the latest Director Discretionary Denial decisions to issue from the U.S. Patent and Trademark Office (USPTO), Acting Deputy Chief Administrative Patent Judge Kalyan K. Deshpande denied institution in six inter partes reviews (IPRs) brought by Samsung Electronics Co. Ltd. and Samsung Electronics America, Inc against GenghisComm Holdings, LLC over mobile communications patents—some of which are only three years old. USPTO Acting Director Coke Morgan Stewart recused herself from the decisions due to a conflict and delegated her authority to Deshpande via a Notice of Delegation.
I began my conversation with Wen Xie by giving her an open mic opportunity to share her thoughts on the state of the industry and she said: “You asked me just now before we started filming, should we be afraid of AI. And my answer is there’s no point in being afraid because it’s coming… AI is coming in every profession, every technology. And we shouldn’t resist it when it comes to patent drafting or patent prosecution.”
This week on IPWatchdog Unleashed we dive into patent eligibility waters, with a discussion on how patent attorneys and litigators alike can cope with Alice. Our conversation will triangulate patent eligibility from the political perspective, from the perspective of a patent litigator who represents patent owners in federal court, and from the perspective of a patent attorney who represents clients as they attempt to obtain software patents. Joining us this week is the Honorable Andrei Iancu, former Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. Vince Rubino, who is a patent litigator with Fabricant in the firm’s New York City office, and from the patent prosecution perspective we have John Rogitz, who is Managing Attorney at Rogitz & Associates.
The USPTO receiving authority by the Trump Administration to hire was no easy lift. IPWatchdog has learned that the USPTO has been tirelessly working with the U.S. Office of Personnel Management (OPM) for 4+ months in an effort to convince OPM to give the USPTO a waiver that would allow the Office to once again start hiring examiners.
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