Posts in IPWatchdog Articles

Mission Product: SCOTUS Appears Skeptical That Bankrupt Licensor’s Rejection of Trademark License Means Licensee Can’t Use the Mark

On Wednesday, February 20, the U.S. Supreme Court heard oral arguments in Mission Product Holdings, Inc. v. Tempnology, LLC, where the Court was asked to address one of the most important issues at the intersection of trademark law and bankruptcy law: whether a debtor-licensor’s rejection of a trademark license terminates the rights of the licensee to use that trademark. Taking seriously the language of the question presented, and generally acknowledging that 11 U.S.C. § 365(g) provides that rejection constitutes a “breach” of the contract, the justices focused on the remedies for breach outside of bankruptcy law and whether, because trademarks (and quality control issues) are involved, deviation from ordinary, contract law principles is warranted. Both the advocates and the justices returned to whether analogies, including with respect to breaches of apartment and photocopier leases, are apposite. The question of whether the case was moot also received some attention, though it seems unlikely that the case will be dismissed on that ground.

Mandamus Relief Denied: Federal Circuit Avoids Clarifying TC Heartland in In re Google LLC

The Federal Circuit recently elected not to decide en banc “whether servers are a regular and established place of business, such that venue is proper under 35 U.S.C. § 1400(b). In re: Google LLC, No. 2018-152 (Fed. Cir. Feb. 5, 2019) (Before Prost, Chief Judge, Newman, Lourie, Dyk, Moore, O’Malley, Reyna, Wallach, Taranto, Chen, Hughes, and Stoll, Circuit Judges) (Dissent by Reyna, Circuit Judge, joined by Newman and Lourie, Circuit Judges). SEVEN Networks, LLC’s (SEVEN) patent infringement suit against Google arose in the Eastern District of Texas. SEVEN alleged Google’s servers, stored in a third-party ISP’s facility, where the allegedly infringing activities occurred, were a regular and established place of business, such that venue is proper under 35 U.S.C. § 1400(b). The district court denied Google’s motion to dismiss for improper venue. As a result, Google petitioned the Federal Circuit for a writ of mandamus directing the district court to dismiss or transfer the case for improper venue. On appeal, the panel majority found mandamus relief inappropriate because “it is not known if the district court’s ruling involves the kind of broad and fundamental legal questions relevant to § 1400(b),” and “it would be appropriate to allow the issue to percolate in the district courts so as to more clearly define the importance, scope, and nature of the issue for us to review.”

Return Mail v. USPS Oral Arguments: Both Sides Struggle in Robust Questioning at Supreme Court

On Tuesday, February 19, the U.S. Supreme Court heard oral arguments in Return Mail Inc. v. United States Postal Service, a case that asks the nation’s highest court to determine whether the federal government constitutes a “person” for the purposes of instituting review proceedings at the Patent Trial and Appeal Board (PTAB) under the Leahy-Smith America Invents Act (AIA). Although the Supreme Court Justices appeared to be dissatisfied with arguments from counsel for either side, they arguably pushed back more against the USPS’ position. All Justices apart from Justice Clarence Thomas played an active role in questioning.

EU Reaches Copyright Reform Agreement But Opposition Remains

Have European Union legislators finally agreed on the substance of a new Copyright Directive? That was the claim made in a statement by the European Commission on February 13. The Commission announced that it, the EU Council (which represents member state governments) and the European Parliament (comprising 751 elected members) had reached a “breakthrough” on controversial proposals that have been hotly debated for the past six years. The Commission explained that the three bodies had found a “political agreement to make the copyright rules fit for [the] digital era in Europe and bring tangible benefits to all creative sectors, the press, researchers, educators, cultural heritage institutions, and citizens”. However, it did not publish the text that had been agreed.

Qualcomm, Google, Verizon and Industry Reps Gather for Women’s High-Tech Coalition Women of Wireless Dialogue

On February 13, global policymakers and technology company representatives gathered in Washington, D.C. at Google’s offices for the Women’s High-Tech Coalition (WHTC) Third Annual “Women of Wireless” dialogue. The speakers represented companies including Google, Verizon, and Qualcomm, as well as major industry organizations such as the Cellular Telecommunications and Internet Association (CTIA) and the Consumer Technology Association (CTA), and discussed the various infrastructure, policy, and privacy challenges facing the industry in the race to 5G-implementation. With a record number of women elected to the 116th Session of the U.S. Congress and recent White House Executive Orders on technology issues— including this month’s “Maintaining American Leadership in Artificial Intelligence (AI),” an expected executive order on 5G technology, and likely Congressional briefings and hearings focused on wireless innovation—the WHTC is an integral network of stakeholders to discuss these issues and to develop opportunities for strategic partnerships and shared initiatives.

Don’t Be Fooled by His Patent Purge: Elon Musk is Just Another Hypocritical Tech Billionaire

In 2014, Elon Musk made Tesla’s patents available for anyone to use for free, stating that “technology leadership is not defined by patents.” Earlier this month, Musk announced again that he had released all of Tesla’s patents, promising the company “will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.” Musk believes patents only serve “to stifle progress” and that by releasing his patents he can help get progress moving again—and that progress will somehow win the fight against climate change. But do patents stifle progress, and will releasing patents really have this result? Patents are a trade with a government. The inventor agrees to disclose the invention to the public in exchange for a limited exclusive right to the invention. No one else can make, use, sell or import the invention without the inventor’s permission. The public interest is served because the invention is publicly disclosed, so anyone can improve the invention and patent that advancement. And anyone can design around it and patent that invention. If the invention has commercial value, no doubt many people will jump in and do one or both.