Posts in International

Understanding ‘NNN’ Agreements in China

An “NNN” agreement is short for Non-Disclosure/Non-Use/Non-Circumvention agreement, which means the information cannot be shared with anyone, it cannot be used in any way, and “behind-the-back” or design around tactics are forbidden. In recent years, signing NNN agreements has become widely adopted and is now the standard initial step in dealings with Chinese companies, particularly original equipment manufacturers (OEMs). An NNN Agreement is much more than just a Non-Disclosure Agreement (NDA). An NDA focuses narrowly on preventing secret information from being revealed to a third party or to the public, which is not sufficient for OEMs in China. In contrast, an NNN agreement not only contains confidentiality provisions, but also prevents misuse of confidential information.

Canadian Federal Court Sets a New Subject-Matter Eligibility Test for Computer-Implemented Inventions

Clearing the air on labyrinthine subject-matter eligibility standards for computer-implemented inventions (CIIs), a Canadian Federal Court last month revisited the issue in Benjamin Moore & Co. v. Attorney General of Canada, 2022 FC 923. In its decision, the court, while setting a new test, rejected, for the second time, a problem-solution approach to claim construction followed by the Canadian Intellectual Property Office (CIPO) in examining patent applications. The appeal was filed against decisions by the Canadian Commissioner of Patents finding two Canadian Patent Applicants numbered 2,695,130 and 2,695,146 as patent ineligible under sections 2 and 27(8) of the Canadian Patent Act. Intellectual Property Institute of Canada (“IPIC”), an IP policy advocacy organization, intervened in the appeal proceedings, affirming that the appeal raised a fundamental question of Canadian Patent Law.

The Case for Patenting AI: U.S. Patent Laws Better Get Smart or Get Left Behind

The idea of patented inventions brings to mind machines fully realized – flying contraptions and engines with gears and pistons operating in coherent symphony. When it comes to artificial intelligence (AI), there are no contraptions, no gears, no pistons, and in a lot of cases, no machines. AI inventors sound much more like philosophers theorizing about machines, rather than mechanics describing a machine. They use phrases like “predictive model” and “complexity module” that evoke little to no imagery or association with practical life whatsoever. The AI inventor’s ways are antithetical to the principles of patent writing, where inventions are described in terms of what does what, why, how, and how often.

A License to Steal IP: What Partnering with China Really Means for Businesses

“The nine most terrifying words in the English language are: I’m from the Government, and I’m here to help,” said President Ronald Reagan during a press conference on August 12, 1986. This is one of President Reagan’s most often quoted quips, and for a reason. The Government can certainly help people in times of need, but it can also be a scary bureaucracy, particularly when it shows up unannounced and uninvited. Fast forward 31 years and the 12 most terrifying words in the English language for any business should be: “I’m from China, and my company would like to partner with yours.”

How Wimbledon Tennis Trademarked its Signature Colors

July 10 marks the end of one of the most important events in the sporting calendar and one of the most iconic tennis tournaments in the world: Wimbledon. The All England Lawn Tennis Club (the “Club”) has owned multiple registered trademarks for the famous Wimbledon name and other prominent signs for some time. However, the dark green and purple colorway – which has been associated with the Wimbledon tennis tournament for over a Century – has only been protected as a registered trademark in the UK since 2016.

The Push for Clean Energy Ignores Economic and U.S. Innovation Realities

During the last Presidential campaign, then candidate Biden famously promised to end fossil fuels. True to his commitment, President Biden has attempted to make the oil and gas industry less attractive to both corporations and investors. Unfortunately, clean energy is not ready as a solution for 21st century economies. But if the Biden Administration does want an alternative energy future, it better figure out how to fix a broken American patent system where virtually nothing is patent eligible, and it better also figure out how to keep the United Nations and developing countries from stealing proprietary rights of innovators. On the heels of the Biden Administration siding with developing nations in their effort to appropriate vaccine technology, UN Secretary-General Antonio Guterres is calling for all intellectual property on clean energy technologies to be busted, and the innovations handed over to developing nations for free.

Coca-Cola Win Reversed at CAFC in Case Over Indian Soda Trademarks

The U.S. Court of Appeals for the Federal Circuit (CAFC) today reversed a decision of the U.S. Patent and Trademark Office’s (USPTO’s) Trademark Trial and Appeal Board (TTAB) that had canceled two marks for Thums Up cola and Limca lemon-lime soda owned by Meenaxi Enterprise, Inc. The CAFC held that Coca-Cola had not established a statutory cause of action based on lost sales or reputational injury under Section 14(3) of the Lanham Act and thus reversed the decision. Judge Reyna wrote separately in concurrence but said he would have focused the inquiry on the territoriality principle and the well-known mark exception, rather than lost sales and reputational injury among U.S. consumers, as the majority did.

Amazon Brand Protection Report Details Major Anticounterfeiting Investments But Small Businesses Want Stronger Policing Against Knock-Offs

Earlier this month, e-commerce giant Amazon.com issued its latest Brand Protection Report detailing steps taken by the tech titan to reduce the tide of counterfeit products being sold to consumers around the globe. While the report identifies several concrete steps taken by Amazon to prevent knock-offs from being listed for sale, there are plenty of questions that yet remain as to whether Amazon is genuinely committed to eliminating sales of fake branded products that the company has been known to ignore.

‘Reasonable Efforts’ Require Care and Consistency

At this moment, there is a fellow riding a bus in London who will determine the fate of your secrets. To be more precise, he’s on the Clapham bus; but he has no name. In fact, he’s a fictional character originally imagined by 19th Century journalist Walter Bagehot, who thought that “public opinion” was best described as the “opinion of the bald-headed man at the back of the omnibus.” The idea was picked up by the English courts as a metaphor for the “reasonable person” standard that is applied in all sorts of cases, from criminal to personal injury to contract interpretation. It also has special application to trade secrets, which we’ll get to in a minute.

The TRIPS Waiver: What Does it Mean to Change the Rules of the Game?

A terrible idea – wayward and ill-conceived, criticized by all economic, political and geopolitical fronts – has come to fruition. The World Trade Organization’s (WTO) TRIPs waiver on patents related to COVID-19 vaccines will disincentivize the entire industry from investing in vaccine production. To understand what happens next, let’s understand history first.

WTO Announces COVID Vaccine Waiver Deal That Virtually No One Wants

Following a week of round-the-clock deliberations, the World Trade Organization (WTO) this morning announced a deal on waiver of IP rights for COVID-19 vaccine technologies under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The final text has made almost no one happy and largely mirrors the draft text going into negotiations, with a few key changes. With respect to open questions in the draft text, the final agreement indicates that all developing country WTO Members will be considered eligible to take advantage of the waiver, but that those with “existing capacity to manufacture COVID-19 vaccines are encouraged to make a binding commitment not to avail themselves of this Decision.” This language is primarily targeted at China, which has publicly stated that it would not use the waiver provision but had objected to language based on percentage of global vaccine exports that would have categorically excluded it. The draft text had encouraged members with vaccine export capabilities to opt out rather than to make a binding commitment.

Vaccine Access Advocacy Groups Speak Out as COVID IP Waiver Talks Heat Up

The People’s Vaccine Alliance issued a statement today, one day before the World Trade Organization’s 12th Ministerial Conference is set to end, accusing the United Kingdom and Switzerland of being “major blockers of the TRIPS waiver for twenty months while millions have died without access to COVID-19 vaccines.” Anna Marriott, Policy Lead at the People’s Vaccine Alliance and Health Policy Manager at Oxfam, said the two countries “have repeatedly disrupted negotiations using the amendment process to ensure that any text is difficult to use or implement” and added: “It would be totally false for rich countries to shift the blame for the current state of TRIPS negotiations onto anybody else.”

WTO Conference Could End with Agreement on COVID Vaccine IP Waiver This Week

The World Trade Organization’s (WTO’s) 12th Ministerial Conference is set to take place this week, June 12-15, at WTO headquarters in Geneva, Switzerland. As part of the four-day meeting, discussions around the latest text of the proposal to waive intellectual property (IP) rights under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) for COVID-19 vaccine technology will take place around the clock, and it is expected that some agreement will be reached. TRIPS Council Chair, Ambassador Lansana Gberie of Sierra Leone, said on June 7 that “delegations have entered into real negotiation mode in the last 24 hours,” and that she is “feeling cautiously optimistic now that we will get this text ready for adoption by ministers in time for the coming weekend.”

Another Peculiar Anti-Patent Court Decision in ParkerVision v. Qualcomm

Infringing patented inventions feels like stealing, from the innovator’s perspective, much like a smash and grab at a jewelry store. Politicians refuse to fix the gutted patent system so it can protect U.S. startups and small inventors. The American Dream is slipping away, as it consolidates into the hands of just a few tech giants and sending whatever is left to China. Case in point, ParkerVision v. Qualcomm, which illustrates just how anti-patent some courts have become. In this case the importance of ParkerVision’s seminal semiconductor chip technology that helped to transform cellphones into smartphones is at issue. ParkerVision invested tens of millions in R&D, but the courts have allowed it to be taken from them and transferred to a multinational corporation free of charge.

CJEU Advocate General Recommends Clarifying What Constitutes Trademark ‘Use’ by Online Intermediaries

On June 2, the Court of Justice of the European Union issued a press release discussing the results of the Advocate General’s opinion on two actions filed by French footwear designer Christian Louboutin, one in Luxembourg and another in Belgium, against the Amazon group (Amazon) alleging trademark infringement. As detailed in the opinion, Amazon regularly advertises red-soled platform shoes which are for sale on its platform without the consent of Louboutin. Louboutin is the owner of the EU position mark referred to as the “red sole” for goods in International Class 25 covering “high-heeled shoes (and other orthopedic footwear).” The mark at issue “consists of the colour red (Pantone 18-1663TP) applied to the sole of a shoe.” Louboutin also has national protection for the mark in both Belgium and Luxembourg.


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