Posts in Guest Contributors

After nearly twenty years with the DMCA, the Copyright Office has launched a new study to examine the impact and effectiveness of this system, and voices on both sides of the debate have filed comments expressing their views. For the most part, frustrated copyright owners report that the DMCA has not successfully stemmed the tide of online infringement, which is completely unsurprising to anyone who spends a few minutes online searching for copyrighted works. Unfortunately, some commentators are also pushing for changes that that would make things even more difficult for copyright owners.

The IP5 is the name given to a forum of the five largest intellectual property offices in the world that was set-up to improve the efficiency of the examination process for patents worldwide. The top five Patent Offices (IP5) have recognized this internationalization phenomenon and many directives have been introduced to facilitate cooperation between the patent offices… For example, the IP5’s Common Citation Document (CCD) application now allows access of up-to-date citation data of all five patent offices.

Earlier this week a friend posted a magazine article, “The Rise of Fakes and False Attributions in the Art World,” on social media. The article was about art authentication and due diligence. Before I reached the end of the first paragraph, I realized that I was reading a plagiary of my article, “Purchasing Art in a Market Full of Forgeries: Risks and Legal Remedies for Buyers,” published in the International Journal of Cultural Heritage. The author structured her article on my work, a piece that includes extensive research and that is partially based on experience that I cultivated while working with major art collectors. And rather than just using the outline of my article or presenting some of my arguments, she copied entire sentences. In fact, she went as far as copying entire paragraphs. Shockingly, she even kept the same punctuation, quoting words that I had placed in quotations marks in my article.

It’s very unlikely that obtaining data from just 25 PAEs will provide a representative sampling of PAEs given that the universe of PAEs is largely unknown and probably very diverse… The problem is that in my experience both lawmakers and regulators routinely ignore important statistical limitations of federal studies. I say this with the experience of having worked for over 20 years as a federal government statistician. All too often policymakers use federal studies in ways beyond their intended purposes, with the result that legislation or regulation may be based on a flimsy and potentially inaccurate understanding of the underlying problem or the costs or benefits of proposed government action.

Two cases making their way through the Federal courts may force the Supreme Court to consider the issue of what sorts of trademarks should be considered “disparaging,” and whether the government may lawfully prevent the registration of such trademarks… The Redskins appealed to the Fourth Circuit in August 2015 and the parties’ and amici briefs have been rolling ever since. As of April 25, 2016, the Redskins have petitioned the United States Supreme Court to review their case, skipping over the Fourth Circuit Court of Appeal.

Earlier this month, attorneys and patent practitioners from all over the nation, and far corners of the globe, descended upon Bethesda, Maryland for the 31st Annual Intellectual Property Law Conference of the American Bar Association (ABA). A panel of three distinguished practitioners, Tim Bedard of Visa, Eric Sutton of Oracle, and Gene Quinn, debated The Post-Alice Landscape. The presentation included…

The use of a mathematical formula in a claim can trigger a 35 USC 101 rejection or invalidation of the patented claim. However, the role of mathematics in physics and in inventions has changed dramatically over the last 50 years. Computers are programmed to operate on the numbers to perform a defined task, such as filtering or demodulation, by performing calculations in a certain order and at a certain speed. Cellphones, DVD players, telephone sets, 3D printers, cameras, MRI machines and the like are in essence computers with an A/D and D/A converter and/or transducers.

The first patent is typically filed prior to entering the market. This prophetic patent might have several different ways a product may be designed and capture a couple different ways the product may go to market. The purpose of the first patent application is to clear some space so that the company can keep competitors away. This patent application is done with the highest degree of uncertainty about both the technology and the market. It is critical to note that not only is the entrepreneur just beginning the journey at this point, but so is the patent attorney. Neither player knows which elements of the invention will turn out to be important.

Today’s pace of innovation and competitive intensity demand greater protection of new ideas and inventions. Yet intellectual property (IP) management is not a high business priority for many companies. Organizations that fail to recognize IP as a strategic asset put their competitive advantage and profit margins at risk. Companies can circumvent these potentially adverse impacts by maximizing the value of their creativity. Prioritizing and protecting IP assets helps organizations stay in front of competitors and drive greater growth.

The reason it matters as to whether we patent folks can speak non-patent speak is that those who make the decisions about patent value, i.e., corporate C-Level and above, do not speak or grasp patent speak, and instead rely on our guidance to make informed judgments about business and capital commitments. We sadly cannot communicate (think Raj on Big Bang, in the early episodes, around females) and, worse, even if we could, we are not even in the meetings where the decisions are being made. Look at any Org chart: We are often kept at more than arms length by General Counsel or who ever it is that patent counsel report to – solid or dotted line. In short, our fate, and the fate of our life’s work, is being decided by others, without benefit of our thoughts. Tragic, and a real business mistake.

As the world continues to grow and international trade on a multi-continent level has become the norm, protecting a company’s name is one of the most important things a company can do, regardless of their size or international standing. Due to what has become almost “organic” international growth for most companies, the use of trademarks owned by U.S. Companies within Europe has grown exponentially in the last 5 years. Consequently, the use of distribution licenses across Europe has also expanded massively.

The Court held that the district court must review the design disclosed in the patent as a whole, and consider whether functional elements contributed to the ornamentation of the design. Although a design patent protects ornamental features rather than functional features, the claims are not limited solely to ornamental elements. The combination of form and function to achieve an ornamental result is within the scope of a design patent. This is particularly true given that design patents are statutorily permitted to cover “articles of manufacture” which almost always serve a functional purpose. Because design patents “protect the overall ornamentation of a design, not an aggregation of separable elements,” eliminating individual elements of the design from consideration was found to be improper, and the Court remanded for further proceedings.

The Court affirmed the obviousness rejection, noting that even under the proper claim construction, substantial evidence supported the Board’s factual findings underlying its obviousness determination. The examiner properly relied on evidence from the request for reexamination showing a motivation to combine prior art, by combining a base system combined with a known improvement. , Man Machine did not introduce any objective indicia of nonobviousness. Thus, the Court affirmed the finding of obviousness.

the Courts have found it difficult to use the Mayo two-part test in the examination of a patent’s validity thus creating great uncertainty… One should not confuse the uncertainty of the complex U.S. patent system with the clarity of the Alice decision. There is no reason to believe any new legislation will provide any improvement in deciding what should, and what should not, be patentable.

First, the definition of PAE used by the FTC characterizes all PAEs as the same. But in treating patent licensing firms as a homogenous category, the FTC fails to recognize there is a wide spectrum of business models that exist under the licensing umbrella. Second, and related to the first, there are serious methodological questions that undermine any conclusions that could be drawn from the FTC’s data.