Posts in IPWatchdog Articles

Wi-Fi has been universally recognized as a term for non-cellular, wireless connectivity to the Internet for at least two decades, and reliance on Wi-Fi has been increasing as more devices become “connected,” such as smart outlets, TVs, audio systems, and the like, in a connected household. Similarly, consumers have become more dependent on the bandwidth of Wi-Fi for bandwidth-intensive activities, such as streaming video, video conferencing during the COVID-19 pandemic, and the emerging “metaverse.”

In the United States, our ability to innovate drives our economic advantage. Have policymakers taken that for granted? To find out, Bruce Berman, founder of the Center for Intellectual Property Understanding, interviewed renowned professor David Teece and Patrick Kilbride of the Global Innovation Policy Center of the U.S. Chamber of Commerce in Episode 6, Season 2 of “Understanding IP Matters.” Their wide-ranging conversation explores the relationship between intellectual property rights, investment, and the rule of law.

As the Senate Judiciary Committee gears up for an Executive Business Meeting Thursday where members will in part consider S.2774, the Pride in Patent Ownership Act, co-sponsored by Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT), a number of patent advocacy organizations have sent a joint letter to the committee asking it to oppose the bill. The Pride in Patent Ownership Act (PPOA) is seemingly intended to ensure that the public has access to information about the true owner of a patent. But critics of the bill have noted that it focuses on ownership of patents, and does not seek to provide true transparency by identifying those funding and benefiting from Patent Trial and Appeal Board (PTAB) challenges, for instance. Senators Chris Coons (D-DE) and Mazie Hirono (D-HI) last year questioned the bill’s approach, which  would entail penalizing patent owners who fail to record accurate ownership information within 90 days after the issuance date.

The European Union Unified Patent Court (UPC) announced this week that the court’s Sunrise Period will be delayed by two months. The Sunrise Period has a new planned opening date of March 1, 2023, with the entry into force of the UPC Agreement (UPCA) pushed to June 1, 2023. In an official announcement, Klaus Grabinski, President of the UPC Court of Appeal, and Johannes Karcher, Acting Chairman of the Administrative Committee, said, “the additional time is intended to allow future users to prepare themselves for the strong authentication which will be required to access the Case Management System (CMS) and to sign documents.”

At the very end of the movie “The Current War,” Benedict Cumberbatch, the actor who played Thomas Edison, bumps into Michael Shannon, the actor who played George Westinghouse. The two had battled for years over implementations of their respective electric current systems into society, with Westinghouse winning in the end. This particular meeting probably never took place, but the conversation in the movie was rather interesting. 

The Office of the United States Trade Representative (USTR) this morning announced support for delaying the deadline to decide whether to extend a waiver of intellectual property rights under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to diagnostics and therapeutics. The USTR also said it has asked the United States International Trade Commission (USITC) “to launch an investigation into COVID-19 diagnostics and therapeutics and provide information on market dynamics to help inform the discussion around supply and demand, price points, the relationship between testing and treating, and production and access.”

Copyrights are the most widely held form of intellectual property. They are also the most infringed. Many creators are unaware their rights even exist or how they can be used. Most do not have a clue how they impact commerce and society. A range of creators and copyright holders, from high school students to Warner Media to Beyonce, individuals and businesses, have generated a cornucopia of content, fueled by faster digital processing and virtually unlimited storage. In theory, most of it is protected under copyright law. Most people, and many businesses, have been known to infringe them, no matter their value, often with impunity. Earlier this year, the U.S. Copyright Office established a small claims system for copyright to slow infringement and prevent rightful owners, small and large, from being routinely ripped off. 

The latest mainstream version of the ubiquitous Wi-Fi standard, known as IEEE 802.11ax or “Wi-Fi 6,” offers substantial technological improvements over traditional Wi-Fi, including Wi-Fi 6’s immediate predecessor—Wi-Fi 5 (IEEE 802.11ac). In particular, Wi-Fi 6 offers faster performance, lower power consumption, and better battery life, all while enabling reduced network congestion and latency. These substantial improvements made over even the immediate predecessor in Wi-Fi technology are made possible by several key technological advances. Wi-Fi 6 has enjoyed good timing as well—its benefits are valuable and necessary improvements as consumers and enterprises increasingly look for high-speed connectivity across a wide and ever broadening array of devices and uses, including the Internet of Things (IoT), augmented/virtual reality (AR/VR), and autonomous vehicles.

The U.S. Supreme Court today denied certiorari in Centripetal Networks v. Cisco Systems, Inc., a case that asked the Court to consider the question “[w]hether placing stock in a blind trust satisfies [28 U.S.C.] §455(f) and, if not, whether…[it] constitutes harmless error under Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988).” James Edwards, a consultant to Centripetal and to amici Eagle Forum ELDF and Committee for Justice, as well as head of amicus, Conservatives for Property Rights, wrote on IPWatchdog last week that Centripetal and other amici hoped the High Court would take the case to clarify the judicial recusal statute. The Federal Circuit’s June 2022 ruling “cast doubt upon the judiciary’s impartiality and [risks] public confidence in the judicial system,” Edwards wrote, summarizing the petitioner’s argument.

If you are filing or have filed a trademark application with the United States Patent and Trademark Office (USPTO) you now have a shorter deadline to respond to Office Actions. The USPTO on Friday announced a new examination guide that implements changes mandated by the Trademark Modernization Act (TMA) of 2020 to the deadline for trademark applicants to respond to Office Actions from six months to three months with an optional three-month extension.

This week in Washington IP news and events, the House Judiciary Committee convenes a hearing Wednesday afternoon to mark up a new copyright bill that would require AM/FM radio stations to pay copyright royalties to music creators. Over in the Senate, the Agriculture Committee explores the research and innovation programs that could be funded through the next iteration of the Farm Bill that will pass Congress next year. Elsewhere, the Hudson Institute pushes back on misguided claims that patent licensing will prevent innovation in the Internet of Things, while the Center for Strategic & International Studies invites USC Gould School of Law Professor Jonathan Barnett for a discussion on patent licensing and enforcement policies in the People’s Republic of China.

Anna Pasternak is the Claimant in a recent copyright case at the UK High Court of Justice and author of Lara: The Untold Love Story That Inspired Doctor Zhivago (“Lara”). Lara is a non-fiction, historical book that was published in the United Kingdom in August 2016. It is a love story of Pasternak’s great uncle, Boris Pasternak, poet and author of the book Doctor Zhivago, and his mistress and muse, Olga Ivinskaya, who is portrayed as Lara Antipova in Doctor Zhivago. The Claimant is also the owner of the copyright in a translation of extracts from a book called Légendes de la Rue Potapov” (“the Légendes Translation”). Lara Prescott is the Defendant in the case at issue and author of The Secrets We Kept (“TSWK”), a historical, fictional account of a late 1950s CIA operation, which used copies of Doctor Zhivago as propaganda against the Soviet Union. Prescott, who is named after Lara Antipova, has always been fascinated by the novel. TSWK was published both in the United States and the United Kingdom in September 2019.

When it comes to ex parte appeals, the kid gloves come off. It’s always nice to be easy-going with the examiner when working directly with that person, but if an impasse is reached and you need to appeal, then there’s no reason to go easy anymore. Don’t be disrespectful, but it’s okay to be rigorous and articulate. With that in mind, below are a few practical tips for writing an appeal brief to the Patent Trial and Appeal Board (PTAB). None of them are meant to serve as a magic bullet but they might help you get a leg up. And course, you need to have a decent case to appeal in the first place or nothing I say below is going to help very much.

The U.S. Court of Appeals for the Eleventh Circuit earlier this week ruled in favor of Viacom in a trademark fight over the media conglomerate’s Floribama Shore reality television show. MGFB, the company that filed the appeal, owns the “FLORA-BAMA” trademark and owns and operates the Flora-Bama Lounge on the border of Florida and Alabama. The company filed a cease-and-desist letter in 2017 when Viacom first aired Floribama Shore in 2017. The appeals court judges cited the First Amendment as protecting Viacom’s right to artistic use of “Floribama”. “Creative works of artistic expression are firmly ensconced within the protections of the First Amendment,” wrote the judges.

This week in Other Barks & Bites: Amici urge the U.S. Court of Appeals for the Federal Circuit to Reject Attempts to Curb Delaware Chief Judge’s Litigation Funding Rules; the U.S. Court of Federal Claims rules that the Centers for Disease Control and Prevention breached transfer agreements with Gilead Sciences in obtaining patents to HIV treatment that the agency has asserted against Gilead; the High Court of Delhi issues an order indicating that Telegram has disclosed IP addresses of copyright infringing accounts on its messaging platform; Judge Brasher concurs in an Eleventh Circuit ruling affirming a successful First Amendment defense for MTV Floribama Shore to urge the Eleventh Circuit to reject the Second Circuit’s “title-versus-title” exception to the Rogers test; the U.S. Food and Drug Administration halts authorization for Eli Lilly’s COVID-19 treatment for lack of effectiveness against dominant Omicron subvariants; and more.