Posts in Guest Contributors

According to the Association of American Publishers, the publishing industry as a whole has lost $80 to $100 million dollars to online piracy annually. From 2009 to 2013, the number of e-book Internet piracy alerts that the Authors Guild of America has received from their membership had increased by 300%. During 2014, that number doubled. I’m certain that in 2016, the statistics will go even higher.

We along with several other attorneys represent ParkerVision, the plaintiff, which secured a $173 million infringement verdict that the courts subsequently threw out based on their own assessment of the evidence. In this case, the roles of courts and juries are front and center. The Federal Circuit has been dismissive of jury findings. As Judge Newman has observed, the Federal Circuit frequently “reweigh[s] the evidence to reach [the court’s] preferred result, rather than considering whether substantial evidence as presented at the trial supports the verdict that was reached by the jury.” Other judges and scholars have concurred in this view.

With an increase in the number of patents being issued for clean energy technologies, it’s not surprising to see predictions of increased patent litigation in the sector. Patent infringement cases in the clean energy sector have already involved many of the industry’s top companies, including Westinghouse Solar, Zep Solar, DuPont (NYSE:DD) and SunEdison. Although patent issuances have exploded in that field, the market isn’t nearly as crowded as smartphones and other industries where a much higher number of patents have issued, making those sectors more visible to NPEs. With the renewed calls for both private and public investment into clean energy R&D in the wake of the Paris climate change conference, it’s clear to see that intellectual property owners who can successfully navigate the patent market could make significant financial gains.

Just when you thought the race for the White House couldn’t get any more unpredictable and bizarre, the 2012 Republican Nominee rebuked the current Republican frontrunner, Donald J. Trump. Romney won’t rule out a possibility of accepting the mantle if drafted at the Republican Convention, although he says he will endorse one of the remaining three candidates at some point. There is always the possibility that Romney is trying to keep the door open for someone else, perhaps his former running mate and current Speaker of the House Paul Ryan (R-WI). Given the Romney turn of events we thought it might be appropriate to take a look at what we know about Romney and Ryan as it pertains to patent and innovation policy.

The Supreme Court’s own precedents provide overwhelming authority for interpreting § 101 broadly and, conversely, interpreting its judicial exceptions to § 101 narrowly. These precedents provide ample support for the Cluster Argument: (1) observing that the term “abstract idea” constitutes a legal term of art that, according to stare decisis, properly refers to looped mathematical algorithms and old and fundamental business practices and (2) declining to expand the set of “abstract ideas” beyond these two clusters without a signal from Congress.

To replace the now-defunct Safe Harbor agreement, last week the European Commission published the first details of its transatlantic Privacy Shield. The Privacy Shield is meant to strengthen obligations on US companies to protect European personal data, and improve regulations regarding data monitoring by US government agencies. With the release of the draft Privacy Shield, many are skeptical that it will ensure proper privacy protection and some believe that it may be challenged after implementation.

Now it is time for Trump to call for a vigorous debate on the Trans Pacific Partnership Treaty (“TPP”) to demonstrate his expertise on matters of strategic national and international economic importance. The TPP, now pending before Congress, makes many changes to the US patent system and some in Congress such as Senators Orrin Hatch (R-UT) and Rob Portman (R-OH) have already expressed opposition because of how it weakens American intellectual property rights. Trump should challenge Senators Rubio and Ted Cruz to debate the TPP with their Senate colleagues now rather than wait for the lame duck Congress, when many politicians newly unaccountable to voters could do strange things.

In anticipation of Supreme Court review of Tam, the Commissioner has issued an informal directive to trademark examiners that any application for a mark that is potentially violative of Section 2(a) should be “suspended” rather than refused on that basis until the Supreme Court takes up Tam and its companion cases. In addition, although the Tam decision was expressly limited to the “disparagement” provision in Section 2(a), the Commissioner’s directive apparently applies to all Section 2(a) bases for refusal (immoral, deceptive, scandalous, or disparaging). All non-Section 2(a) application issues will still be addressed prior to suspension.

With leading-edge, tech-savvy companies in the internet, social networking, and e-retailing space often dominating headlines nationwide, it is easy to overlook the myriad businesses competing in the Fast Moving Consumer Goods (“FMCG”) industry, and to dismiss them as somewhat out-of-touch with the modern consumer. However, FMCG companies have combined revenues nearly on par with those in the more highly-publicized technology-based sectors, and have been thriving in the retail space for decades. IP Rights are critically important in the FMCG industry because businesses operating in this sector rely heavily on brand awareness and brandy loyalty for their success. It makes sense then that IP Rights are pivotal in any FMCG company’s long-term strategy for success.

We’re in the business of transforming early stage, publicly funded research into useful products. The odds against success are long as commercialization requires years of hard work, a lot of money and some luck. We’d like to think that this effort is universally appreciated. Many in this profession ignore the public policy debates swirling around, thinking that no one will believe our critics or that someone else will defeat them. That’s a serious mistake.

The Federal Circuit took the case en banc to review the applicability of the patent exhaustion doctrine under Mallinckrodt and Jazz Photo, in view of the Supreme Court’s decisions in Quanta and Kirtsaeng. The Federal Circuit affirmed the holdings in Mallinckrodt and Jazz Photo, and distinguished them from the Supreme Court’s decisions. In Quanta, the Supreme Court was reviewing whether a patentee’s rights in a product were exhausted by a licensee’s sale of a product.

Michelle Lee talks about transparency, but the PTO is hiding behind redacted pages and claims of privilege to deny a legitimate FOIA request from Kyle Bass. “I don’t want to be embarrassed” is not a grounds for privilege and improperly asserting privilege is not being transparent… On page 407 there’s an email to Michelle Lee with briefing materials for the BIO meeting that were prepared by BIO. Not only are the many pages of the BIO briefing materials themselves redacted, but in the email the list of what’s included is redacted. We don’t even know what’s missing. How can materials prepared by BIO and shared with Ms. Lee be privileged?

Each week, we succinctly summarize the preceding week of Federal Circuit precedential patent opinions. We provide the pertinent facts, issues, and holdings. Our Review allows you to keep abreast of the Federal Circuit’s activities – important for everyone concerned with intellectual property. We welcome any feedback you may provide. – Joe Robinson, Bob Schaffer, Parker Hancock, and Puja Dave 83-2.…

What we can, and should, address are institutional challenges. Regrettably, our institutional approach to patents has only further challenged small business and diminished innovation. Those challenges come from changes to our patent law in the America Invents Act (AIA), and precedent that has compromised the exclusive nature of the patent right (eBay v. MercExchange), and rewritten the law of patent eligible subject matter (Alice, Mayo and Myriad). Perhaps most significantly, pending legislation (S. 1137 and H.R. 9), if enacted, will further curtail the patentee’s ability to enjoy the rights granted and to seek just reward for infringement. On top of all this is profound uncertainty as the US Patent and Trademark Office (PTO) struggles to keep up with these changes.

Finally, the Court held that the Board’s denial of Nike’s motion to amend for failure to show patentable distinction over “prior art not of record but known to the patent owner” was improper. The Court held that the Board’s finding that Nike’s “conclusory statement” was “factually inadequate” under its interpretation of the Idle Free decision was too rigid and was an improper ground to deny Nike’s motion. Accordingly the Court affirmed in part, vacated in part, and remanded the decision to the district court.