Posts in IPWatchdog Articles

The Global Innovation Policy Center (GIPC) of the U.S. Chamber of Commerce issued its 11th annual International IP Index today, striking what seems like a more dismal tone than usual compared with past reports. While 18 economies saw modest progress on IP protection improvements, 28 economies, including many of the high-scorers, like the United States and the United Kingdom, had a 0% change in score. Only two countries had a 0% change in the 10th edition of the Index. The Index covers 55 economies that represent “most of the global economic output, together contributing over 90% of global GDP.”

Last week, U.S. District Judge Yvonne Gonzalez Rogers issued an order denying Cellspin Soft’s motion for recusal that sought the vacatur of a summary judgment that released Fitbit, Nike, Under Armour, and others from patent infringement liability. Judge Gonzalez Rogers wrote “in short, plaintiff’s attack on the integrity of the judiciary… not only demonstrates a measure of desperation, but is divorced from the law and the facts.”

Now is an exciting time in the world of artificial intelligence (AI) and intellectual property law. Academics have been interested in this field for a long time, and more narrowly in certain issues, like the legal status of works created by an AI in the absence of a traditional human author (AI-generated works). But AI-generated works have not traditionally been very interesting to lawyers, policymakers, or businesses, because while AI has been functionally making creative works for decades, the technology was never that commercially useful.

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Friday, February 17, ruled in a precedential opinion that a Nebraska district court abused its discretion in granting a preliminary injunction barring the owner of patents on holiday string lights from communicating to its customers that a competitor was infringing its patents. Lite-Netics, LLC sued Holiday Bright Lights (HBL) in the U.S. District Court for the District of Nebraska for infringement of its U.S. Patent Nos. 7,549,779 and 8,128,264, both titled “Magnetic Light Fixture.” HBL was at one time a customer of Lite-Netics and also sells holiday string lights, including one it calls a “Magnetic Cord,” which is one of the two products Lite-Netics alleged infringed its patents. HBL’s U.S. Patent No. 11,333,309 describes the product and issued in 2022 based on a 2021 application. Lite-Netics’ patents issued in 2009 and 2012.

On February 17, 2023, Germany ratified the Agreement on the Unified Patent Court. This means that the Unified Patent Court (UPC) will definitely go live on June 1, 2023. Thus, it’s time to get one’s ducks in a row and to prepare for this new court system, which provides for a new pan European injunction in patent matters. In order to faciliate such preparation, we will be providing a series of five articles over the coming months until the system starts that will deal with the most important aspects of the UPC.

Patent owners think Inter Partes Reviews (IPRs) are a fixed game. Their concern goes beyond structural and procedural aspects of the IPR process; patent owners also believe that Patent Trial and Appeal Board (PTAB) judges are hostile to patents. Their concerns are particularly pronounced because their opportunities for appellate review of those PTAB judges’ decisions is limited. This article examines whether this concern is justified.

Morgan, Lewis & Bockius LLP is seeking a junior, midlevel, and senior level associate with 1-7 years of patent prosecution experience in a biotechnology practice and an advanced degree, preferably a Ph.D., in a life sciences technology area, e.g. molecular biology, immunology, biochemistry, cell biology, and the like. Illustrative subject matter concerns patent prosecution and counseling projects with emerging companies focused on antibodies, DNA or RNA therapeutics, chemical biology, gene-editing, etc. Patent bar membership (USPTO Registration Number) is required. This is a full-time, permanent position located in Boston, MA.

The U.S. Patent and Trademark Office’s (USPTO’s) announcement early last week that it is requesting public comments on artificial intelligence (AI) and inventorship indicates that changes may eventually be implemented with respect to how the Office considers inventions created, or partially created, by AI machines. The Office is asking for input on 11 questions, including “how does the use of an AI system [in the invention process]…differ from the use of other technical tools”; whether AI inventions may be patentable under current patent laws on joint inventorship; and if statutory or regulatory changes should be made to better address AI contributions to inventions.

A company’s trademark activity is a very telling indicator of whether it is interested in a particular country’s or region’s market. Often, a national intellectual property (IP) office or the World Intellectual Property Organization (WIPO) IP registry can speak loudest about a company’s true intentions. Russia’s full-scale invasion of Ukraine began on February 24, 2022. It is instructive to examine how foreign companies behaved with respect to IP registration and renewal in Ukraine to predict how they view business prospects in Ukraine going forward.

This week in Other Barks & Bites: the U.S. Court of Appeals for the Federal Circuit (CAFC) holds that a district court committed harmless error in granting a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim because Hawk Technology Systems’ patent claims were directed to ineligible subject matter under 35 USC § 101, ultimately affirming the decision; ASML says former employee stole data related to proprietary chip technology; the U.S. Department of Justice states that the U.S. government, not Moderna, bears liability for potential patent infringement in ongoing COVID vaccine case; and Canada Announces funding restrictions to protect IP.

In January 2023, the Federal Trade Commission (FTC) unveiled a proposed ban on non-compete clauses that prohibits employees from joining or forming competitive firms following the termination of their employment. According to the FTC, non-compete clauses unfairly and unnecessarily stifle employees’ ability to pursue better employment opportunities. While this criticism may ring true in the case of lower-wage workers, such as restaurant and warehouse employees, even the staunchest critics of non-compete clauses will typically acknowledge that they can — and often do — play a legitimate role in the protection of trade secrets. This is why the FTC’s proposed rulemaking is causing consternation in the intellectual property community.

Faegre Drinker is actively recruiting a litigation associate to join its thriving Intellectual Property practice. This full-time, permanent position offers the opportunity to focus on patent litigation for a national and international client base from our Chicago, Denver, Indianapolis, Minneapolis, Washington D.C., or Wilmington offices.

The U.S. Patent and Trademark Office (USPTO) announced on Tuesday that it is once again extending the deadline for submissions on its “Request for Comments on USPTO Initiatives to Ensure the Robustness and Reliability of Patent Rights.” The Office originally published the Federal Register Notice on October 4, 2022, with a deadline of January 3. That deadline was then extended to February 1 in November, with a note that “this will be the only extension of the comment period.” But on Tuesday, the Office said it will extend the deadline a second time “to ensure that all stakeholders have a sufficient opportunity to submit comments on the questions presented in the October 4, 2022, notice.” The announcement also asserted that “this will be the last extension of the comment period.”

A report released  Wednesday by MarqVision found that 68% of direct-to-customer (DTC) brands have had their products counterfeited. The report surveyed 295 representatives from DTC brands across the world. The report also provides information about how worried DTC brands are about IP infringement and counterfeiting. The DTC market has tripled over the last five years, accounting now for $1 of every $7 spent, according to the report.

Any brand owner with an anticounterfeiting program will tell you that one of their biggest frustrations with online enforcement is that the information online marketplaces keep on third-party sellers is not always accurate or complete. Counterfeit sellers will do anything they can to fly under the radar online, often providing false names, addresses, and other contact information in their online marketplace profiles. Accordingly, it is quite common for brand owners to reach a literal dead end in their investigations of third-party sellers. The Integrity, Notification, and Fairness in Online Retail Marketplaces for Consumers Act (the “INFORM Consumers Act”), recently signed into law as part of the Consolidated Appropriations Act of 2023, aims to make it more difficult for counterfeit sellers to fly under the radar by requiring online marketplaces to collect, verify, and disclose certain information from high-volume third-party sellers to consumers.