Posts in IPWatchdog Articles

Native American tribes possess and exercise inherent sovereign immunity. It is also undisputable that such power may be abrogated, limited or qualified only by the express and unequivocal action of Congress. In Kiowa Tribe of Oklahoma v Manufacturing Technologies, Inc., the U.S. Supreme Court explicitly affirmed that no court or administrative agency may interfere with that power absent Congressional legislation… The Court again in Bay Mills reiterated that absent congressional limitations, tribes exercise unqualified immunity. The Court even went so far as to note that “a fundamental commitment of Indian law is judicial respect for Congress’s primary role in defining the contours of tribal sovereignty.”

The world of intellectual property law has been abuzz in recent months leading up to oral arguments in front of the U.S. Supreme Court in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, a case which will determine whether the Patent Trial and Appeal Board (PTAB) operates in violation of both Article III of the U.S. Constitution and…

Your business name is how people will identify with your goods and services, so you want to have one identity that is all your own. Simple enough really, at least in concept, but making a mistake at the selection stage will prove costly… It would seem virtually impossible to operate in the modern world without a website for your business, and soon it will be equally incomprehensible not to be using social media platforms in one way or another. The power of social media is only growing, and smart businesses are trying to position themselves to take advantage of the phenomenon. If you are serious about your business endeavors you too need to get in the social media game, and if you don’t already have a website for goodness sake get moving!

The motion of the St. Regis Mohawk Tribe (“the Tribe”) is based on the misplaced theory that Tribal Sovereign Immunity is applicable to administrative proceedings before the PTAB. While the Supreme Court has repeatedly confirmed that, as a matter of judicial construct, Native American Tribes (like the Tribe) can be immune from “suits” in a court absent abrogation or waiver (see Paper 81, at 8), such immunity does not extend to all government action. See, e.g., Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 755 (1998). In this regard, a PTAB proceeding is not a “suit” in court, but instead an administrative proceeding in which the Office (through the PTAB) takes “a second look at an earlier administrative grant of a patent.” Cuozzo Speed Techs. v. Lee, 136 S. Ct. 2131, 2144 (2016) (“Cuozzo”).

Being an effective law legal group leader whether in a corporation, a law firm or the Government, requires specific skills.   Leading teams to accomplish goals under stressful circumstances requires these skills and a team commitment… An excellent leader recognizes that they rise or fall with the team.   To be successful, we all need to have the best team working with us.   When we promote people, they feel valued and appreciated.   Making people feel appreciated is the #1 motivator and its free!… The performance of the team, rather than individuals, is the most important measure.   Yet, pressures can take us away from the team approach if we don’t consciously focus on it.

On November 21st, a jury verdict entered in the Eastern District of Texas awarded $12.3 million in damages to Tinnus Enterprises and ZURU Ltd. in a patent infringement case against major U.S. telemarketing firms Telebrands and its subsidiary Bulbhead.com. The verdict, which also carries a finding of willful infringement of the patents-in-suit, further upheld the validity of patents owned by Tinnus in stark contrast to findings which have issued by the Patent Trial and Appeal Board (PTAB) on those patents.

Tribal sovereignty is not a “sham” or a “contrivance,” even when it produces results Petitioners do not like. There is no dispute that the St. Regis Mohawk Tribe is what the Supreme Court has termed a “domestic dependent nation[]” entitled to tribal sovereign immunity and that its agreement with Allergan is a legitimate contract… Moreover, Petitioners’ objections are being raised in the wrong forum. Congress – rather than the Board, the Article II executive, or even the Article III courts – controls the availability of tribal sovereign immunity.

The U.S. International Trade Commission has issued a final determination finding a violation of section 337 in a matter dealing with infringement of patents owned by Rovi Corporation. As a result of the investigation the ITC issued a limited exclusion order prohibiting importation of certain digital video receivers and hardware and software components, and also issued cease and desist orders directed to the Comcast respondents. This final determination concludes the matter at the ITC and the investigation is now terminated, with this final determination submitted to President Trump for his review.

Doubtless there are some manufacturing firms, such as Telebrands, who are great endorsers of inter partes review (IPR) proceedings at the Patent Trial and Appeal Board (PTAB) and how that agency has found in favor of copy-cats even as federal courts have repeatedly issued injunctions and found in favor of the inventor of an award winning toy (see here and here).But the manufacturing sector did not all line up in favor of Greene’s Energy Group, although most did. Nevertheless, given that manufacturing firms tend to license patents and do not necessarily develop their own technologies, it is informative to see how this sector feels that the Supreme Court should decide Oil States.

Antitrust agency communications, such as the EU Commission’s Horizontal Guidelines and the FTC/DOJ Licensing Guidelines underline that market power does not necessarily result from patent ownership as such. They contain, however, no specific language on standard-essential patents which are – if they are valid and truly standard-essential – different from other patents in that they must, by definition, be used in order to operate on the respective standard-based market. In Europe at least, it seems to be increasingly accepted that SEPs can convey market power but that they do not necessarily always do so. Advocate General Wathelet’s proposition (para. 57 et seq. of his opinion in the Huawei/ZTE case) to establish a rebuttable presumption that SEP ownership generates market power has not been taken up by the CJEU’s Huawei/ZTE-decision, probably because the parties already agreed that Huawei held a dominant position (para. 43). But court decisions from the UK (for instance Unwired Planet/Huawei, a summary of the case is provided here) and Germany (for instance LG Düsseldorf, 26.3.2015, 4b O 140/13) have taken a case-sensitive approach, looking not only at the leverage generated by a SEP but also at circumstances which may limit its holder’s power.

When a rule becomes a target, it ceases to be a good rule.  In the three years since the Supreme Court issued its opinion in Alice, there have been positive changes to patent applications, but there remains a long-term risk that patent practitioners will use tricks to beat the Alice test.  Here, we focus on the changes to patent applications by drafters, as well as changes to patent applications that have issued since Alice… Previous analyses have reported that patent specification length has been increasing since long before 2010. As shown in Figure 3, from 2010 to 2013, the average patent application length was approximately 12,417 words. However, from 2015 and 2017, the average patent application length increased to over 14,700 words… Alice appears to have resulted in positive developments, such as narrowing the scope of claims and increasing disclosure of technical benefits of inventions in the specification.

A jury verdict recently entered in a patent infringement case in the Eastern District of Texas held that plaintiff Packet Intelligence, a patent owning entity headquartered in Marshall, TX, did not prove infringement of claims from three patents asserted against Canadian communications service solutions provider Sandvine Corporation (TSE:SVC). The jury verdict comes less than one month after Packet Intelligence won a jury verdict of infringement on the same asserted patents in a different Eastern Texas case filed against Westford, MA-based application and network performance management firm NetScout Systems (NASDAQ:NTCT).

RPost has been unfairly described as a patent troll. In fact, RPost is a privately held cybersecurity technology company that has been in operation since 2000. For at least the past two years, RPost has been listed as representative of vendors in Gartner’s Market Guide for Electronic Signature… Microsoft promotes RPost on its partner website for offering “an Outlook add-in that puts advanced email capabilities in the hands of any Microsoft Outlook or Office 365 user.” Its RMail product was even favorably reviewed and recommended by the American Bar Association.

One of the interesting theories posed by the case is Character for Hire’s claimed right to use Disney characters, which derive from Norse mythology or centuries-old fairy tales. In its response to Disney’s motion for summary judgment, Characters for Hire argues that many of the Plaintiffs’ copyrights are based on prior works that have been in the public domain for hundreds of years such as Cinderella, Snow White, Rapunzel, Sleeping Beauty, Aladdin, Princess Aurora, Beauty and the Beast, the Little Mermaid, Thor and Loki. “It will be interesting to see how the Court delineates between established fairy tale characters and the original expression added to them by Disney,” Furey said.

Looking at the types of damages being awarded in trademark cases and how they’re being awarded, it’s highly likely that most damages awarded in these cases might never be recovered. “You can see it as two separate worlds of trademark cases,” Howard said. “There are cases in which a defendant doesn’t show up and it goes straight to default judgment, and then there’s everything else.” $4.6 billion dollars, or 84.6 percent of all damages awarded in district court trademark cases going back to 2009, have been awarded on default judgment.