Posts in IPWatchdog Articles

Brand building can be defined as ‘Building the perceptions of your target audience.’ Those who work in marketing usually say that in order to really build your brand you need to be consistent in your marketing campaigns. Consistency and repetition are a sure way to ingrain your message into the minds of those you are trying to reach by creating a focused brand image. However, Geico, has shown that, when done right, you can break the widely accepted and customary brand building “rules” often having numerous different iconic ad campaigns running at once. So today I’d like to discuss 5 of the more memorable GEICO ad campaigns beginning with the GEICO Gecko® through the most recently added Mike McGlone Commercials and analyze what your business can learn from these ad campaigns.

The largest patent infringement verdict in U.S. history did not stand the test of time at the United States Court of Appeals for the Federal Circuit. After a five-day trial, the jury found Abbott liable for willful infringement. The jury rejected Abbott’s argument that the asserted claims were invalid, and awarded Centocor over $1.67 billion in damages. The Federal Circuit reversed and held that the asserted claims were invalid for failure to meet the statutory written description requirement, erasing the $1.67 billion verdict.

Don Dunner is a partner with Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, and he has argued over 150 cases before the Federal Circuit. Dunner was enormously candid, although many of the things I would have liked to ask him had to be off the table due to ongoing litigation. In fact, Dunner is involved in three exceptionally important cases: TiVo v. Echostar, Microsoft v. i4i and Uniloc v. Microsoft. Thankfully, Dunner did agree to return to talk to us further once these important cases finally resolve without further opportunity for appeal. We did, however, go in depth discussing eBay v. MercExchange, the dynmic between the Supreme Court and the Federal Circuit, how he approaches appeals generally and specifically blow-by-blow and which Federal Circuit Judges ask the toughest questions.

Foley & Lardner LLP announced today that Sharon R. Barner has returned to the firm’s Intellectual Property Department in its Chicago office. Barner most recently served as Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the U.S. Patent and Trademark Office (USPTO).

Intellectual property law is premised on incentivizing innovative and creative activities by providing limited property rights for the fruits of such activities in order to increase the storehouse of creative and innovative knowledge for the betterment of society. Excessive overlapping protection undermines the careful balance individually developed under each body of intellectual property law. Expansion of the subject matter protected under either patent, copyright, or trademark law should only occur if it does not undermine the careful balances struck under each of the other bodies of intellectual property law. Being mindful of the balance between protection and public interest can prevent unintended over-protection of intellectual property that would work to skew the balance in favor of rights to creators and innovators at the expense of the public.

Carrier goes on to detail the comprehensive research of Professor John Walsh who in 2007 surveyed 1125 biomedical researchers in universities, government labs and nonprofit institutions. Walsh received 414 responses and the responses were overwhelmingly clear. Carrier explains that only 3% of respondents indicated that they stopped pursuit of a research agenda based on an excess of patents present in the space. Furthermore, Carrier explained that a mere 5% of respondents even regularly checked for patents related to their research and “no respondents reported that they had abandoned a line of research because of a patent.”

If you look at the list, when they first started doing these ranking we were number one, then we were number four, and then we dropped. Now we’re number nine, and they only rank through number ten. So we’re tied for ninth with Duke, which is amazing given our size and our location. Now, the schools ahead of us are Michigan, Harvard and Stanford. In many ways we would never be on that list. To remain on the list, we needed to be in a bigger boat. We needed more resources. Otherwise, we might be pushed off the list, and we don’t want to fall off that list. So I think in some ways we were entrepreneurial as the school has always been, in ensuring our long term vitality. I think our capacity to be a larger player potentially with more resources, with more interdisciplinary activity in our IP center, has been enhanced.

In June 2008 ICANN (the Internet Corporation for Assigned Names and Numbers), a non-profit technical coordination body for the Internet’s name and numbering systems, made headlines when it announced that it would allow an unlimited number of new gTLDs (generic top level domain names) to populate the web. While the process has been delayed several times, the current belief is that ICANN will begin accepting applications for these new gTLDs by July or August of 2011. However, many in the industry expect the start of the application process to be delayed further, as various trademark organizations have raised concerns about the award and dispute resolution process.

Deputy Director Designate Rea is a patent attorney herself, having been admitted to the patent bar on December 15, 1981. According to her profile page on her firm’s website – Crowell & Moring LLP – Rea’s practice has focused on complex patent litigation and inter partes matters, as well as patent procurement and portfolio management, including patent preparation and prosecution. Rea also has experience in drafting infringement and validity opinions, as well as interference, and licensing matters. Therefore, it seems that the push to have high achievers with industry specific patent experience continues at the Patent Office, which is refreshing.

Today Barner is here to talk to us about what is going on at the USPTO. She is discussing the USPTO Strategic Plan, which she was primarily responsible for pulling together during her tenure. She also went on to discuss appeals to the BPAI, the IT system overhaul, patent reform, patent politics, Microsoft v. i4i and much more. As a former Deputy Director we are getting not only the facts, but her opinions as well. An excellent, informative and candid presentation.

It is impossible to know for sure, but it is reasonable to assume that the 1000+ page IDS Kappos referred to might be in response to what the Supreme Court will likely do. The Supreme Court doesn’t seem to like to apply changes in the law prospectively, even radical changes as this would be. So if they do lower the burden the changes will be applied retroactively and affect (and infect) issued patents and pending patent applications. With that in mind, those with patent applications pending might want to anticipate the worst and file “everything made by man under the sun” information disclosure statements. That way you will be protected if the Supreme Court says there is a reduced standard for invalidating patent claims when prior art was not submitted to the Patent Office.

In New Zealand, patents (equivalent to utility patents in the USA), registered designs (viz. US design patent) and trademarks are subject to normal substantive examination processes. Fortunately, due to smaller backlogs and a less bureaucratic system, overseas applications filed into NZ are often examined within a year of filing. Accelerated examination may also be requested with no official fee where applicants need a quicker indication as to the validity of their rights. Further, if you have a corresponding patent right granted in another major patent office, the NZ process can be accelerated assuming the NZ claims are similar to that in the corresponding right.

On January 28, 2011, the recently retired Chief Justice of the New Hampshire Supreme Court, John Broderick, became the Dean and President of the University of New Hampshire School of Law. The new UNH School of Law is the law school formerly known as Franklin Pierce Law Center, renowned around the world for its intellectual property program. On January 31, 2011, I had the opportunity to chat with Chief Justice Broderick, who prefers to go by his first name these days.

It is time once again to profile some patents in honor of the festive day. While many might not consider Valentine’s Day to be a major holiday worth of profiling patents, allow me to suggest that you test the theory by failing to acknowledge the amorous sentiment of the day and see just exactly how much of a major holiday your significant other considers it to be! Not that I would suggest giving heart shaped pepperoni slices to the love of your life (yes, patented, see below), but Valentine’s Day does need a proper celebration.

Today it is quite difficult to demonstrate that a patent claim issued by the United States Patent and Trademark Office is invalid and should not have been issued. Microsoft, along with a great many others, is urging the Supreme Court to change that and make it easier for them to demonstrate that patent claims, and thereby the associated patent rights, are invalid and should not have been issued. A strange association of those who are large patent owners themselves are urging the Microsoft position because they are tired of getting sued on patents that they infringe and having to pay tens of millions or hundreds of millions of dollars because they have trampled on the rights of innovators. So in order to excuse their own infringement they are asking the Supreme Court to throw the entire patent system under the bus, which is sadly more likely to happen than not.