Posts in IP News

There is no question that smart phones have transformed the social and economic structure of society, and the integration of increasingly effective cameras has helped spark the revolution.  It is now the norm for people to document their lives through images of themselves and those around them, and to share those images through social media, where others then copy, edit, and reuse them within the blink of an eye.  Just imagine all the ways that photos are now taken, posted and virally spread via social media.  For instance, I have taken selfies, asked strangers to take pictures of me with my hiking buddies, and asked friends to send me images of people from their camera rolls. I have taken photographs of well-known personalities at private gatherings, and snapped pictures of individuals when they had no idea I was even there.   Sometimes I decide to post these personal images on Instagram or Facebook, and then away they go… Unfortunately, the Ninth Circuit failed in T3Media to fully and accurately address the limits of copyright preemption on state law claims involving the personal rights of individuals appearing in photographs.

While the Patent Trial and Appeal Board (PTAB) has not been friendly to patent owners, to put it mildly, the PTAB has not been inhospitable to pharma patent owners according to a report issued in mid-June by BiologicsHQ, a searchable database of drugs, patents, and companies involved in PTAB inter partes review (IPR) proceedings developed by attorneys at Fitzpatrick, Cella, Harper & Scinto. The BiologicsHQ report shows a much different story in terms of drug patents facing IPR challenges at the PTAB. The report looks at a combination of data sources, including the Orange Book, Center for Drug Evaluation and Research (CDER) listed biologics and statistics on America Invents Act (AIA) trials published by the PTAB. The BiologicsHQ report draws the conclusion that, despite widespread concerns about the PTAB operating as a patent death squad in IPRs, “such concern is not justified for drug patents.”

Autonomous, or self-driving, vehicles are coming, even if it’s going to take some time for the technology to become fully operational on U.S. highways. When the technology catches up with the commercial demand, however, there’s little doubt that the market for autonomous vehicles will be huge. News reports from last June indicate that market research firm IHS Automotive published a report forecasting that almost 21 million driverless cars will be driven on roads across the world by the year 2035… Despite forays into the automotive world by Silicon Valley contenders like Tesla, Google’s Waymo and Uber, it seems that the coming generation of American research and development for self-driving cars will be centered in Detroit, long the center of the American automotive world.

It is with great sadness that I write to tell everyone that my father – Gene Sr. – passed away on Tuesday, July 11, 2017, at approximately 7am. He is now with my mother, who passed away five years ago. My father missed my mother so much. I couldn’t even begin to describe his grief at her passing. I invited him to come live with me in Virginia after my mother passed, and repeatedly in the five years since, but he steadfastly (and politely) declined. He visited the cemetery where my mother is buried every day, typically for several hours, just sitting there talking with her and the friends he made who worked at the cemetery. One of his friends at the cemetery told me after he passed: “He never wanted to leave, and now he doesn’t have to, he can just stay with your mother forever.”

Many were stunned to learn that Senator Angus King (I-ME) included language undermining the Bayh-Dole Act in the report of the Senate Armed Services Committee as it approved the National Defense Authorization Act. The the language “directs” the Department of Defense (DOD) to issue compulsory licenses under Bayh-Dole “whenever the price of a drug, vaccine, or other medical technology is higher in the U.S. than the median price charged in the seven largest economies that have a per capita income at least half the per capita income of the U.S.” The provision gives the Department no discretion— it must comply. Apparently no one bothered to check with DOD or anyone familiar with the law to discover that this language incorporates a long discredited theory of how Bayh-Dole operates, or of the significant damage it would do to the development of badly needed medicines and the U.S. economy. The bill is headed to the full Senate for consideration. So before that happens, let’s consider why this is such a bad idea.

At least $17 million. That is what my Bunch O Balloons patent has cost so far. It could grow to $50 million. Yes, we are talking about water balloons, not smartphones. How can this be? Because the patent grant issued by the U.S. Patent and Trademark Office means nothing to infringers like Telebrands and Walmart. They simply ignore the patent and rush to take over the market with their knock-offs (Balloon Bonanza in 2015, Battle Balloons in 2016, and Easy Einstein Balloons in 2017). Then they use those revenues to hire attorneys and experts to say the patent is invalid. If the patent owner lacks deep pockets or good lawyers, his patent will not survive. If he does have access to infinite funds, he has about a 5 percent chance of survival thanks to the America Invents Act (AIA) and the USPTO’s implementation of the Patent Trial and Appeal Board (PTAB).

Eight tech companies owning a collective 115,000 patents announced the establishment of the High Tech Inventors Alliance (HTIA), an organization they claim is “dedicated to supporting balanced patent policy.” According to coverage by Congressional blog TheHill, the formation of the HTIA is intended to further debate on Capitol Hill over patent reform… The members of the alliance are your typical “Who’s Who” of the efficient infringer lobby… Every member of the HTIA, including Adobe, Cisco, Oracle and Salesforce.com all lobbied on issues related to the Innovation Act.

Experience shows that most unfair competition or trade secret theft issues can be resolved without the need for litigation; often, an exchange of letters between the parties’ respective attorneys is sufficient to resolve the matter. However, litigation is sometimes unavoidable, and when it occurs, the employers involved are often surprised by how fast an unfair competition case can move to a practical conclusion, and how little time there might be to prepare for the crucial court hearing… The TRO hearing is often the be-all and end-all of unfair competition litigation because, if it is granted, the unfair competitive activities are immediately stopped, any stolen trade secrets are returned, and the competitive damage to the plaintiff-employer is contained or stopped. The case is usually thereafter resolved by a settlement. Essentially, if the TRO is granted, there typically is not much else of consequence to litigate between the parties.

Law Firm Munck Wilson Mandala welcomes seven attorneys, including partners Gregory Howison, John Arnott, and Brian Walker from intellectual property boutique Howison and Arnott, L.L.P. In addition to the three new partners, the firm added senior counsels Andrew Graham, Edward Jorgenson, and Steven Greenfield, and associate Keith Harden. The new attorneys will work in Munck Wilson’s technology/intellectual property law practice, bringing the total number of registered patent attorneys at the firm to 27, and the combined total years of technical and IP legal experience to over 500, or half a millennium.

Cincinnati, OH-based grocery retailer Kroger Company (NYSE:KR) recently filed a trademark infringement suit against German-based discount supermarket chain Lidl over a private food label. The suit, filed in the U.S. District Court for the Eastern District of Virginia (E.D. Va.), alleges both trademark and service mark infringement and is seeking to have a related U.S. trademark application filed by Lidl cancelled. The suit comes just weeks after Lidl opened its first locations in the United States.

Finnish telecom firm Nokia (NYSE:NOK) and Chinese mobile handset developer Xiaomi recently issued a joint press release announcing a multi-year patent cross license agreement granting both companies access to standard essential patents (SEPs) owned by either firm in the cellular space. In addition, Xiaomi bought patents from Nokia outright. Details on financials and the patents involved were not included in the press announcement.

The district court denied a request for a permanent injunction against Metaswitch after a jury found infringement because Genband failed to establish irreparable harm. More specifically, the court found that Genband failed to establish a causal-nexus between infringement and irreparable harm, i.e. that “the patent features drive demand for the product.” The Federal Circuit remanded because this causal-nexus requirement was too stringent. The Federal Circuit explained that the court could not have confidence as to the answer to the causation question under the standard properly governing the inquiry or whether there is any independent ground for the district court finding no irreparable harm or otherwise denying an injunction.

The district court made clearly erroneous factual findings that independently supported reversal. Particularly, the record supported a finding that this case was exceptional given the weakness of AdjustaCam’s litigating position. The evidence offered by AdjustaCam showed that its lawsuit was baseless. However, the district court instead found that AdjustaCam’s litigation position was not exceptional because Newegg’s ball-and-socket products were constrained in such a way that AdjustaCam could reasonably argue that it rotated on a single axis, consistent with the original district judge’s Markman order. But the Court pointed out that AdjustaCam never advanced this argument.

The Federal Circuit vacated and remanded the Board’s finding of obviousness of certain challenged claims based on a means-plus-function limitation, affirmed the Board’s finding of obviousness as to other challenged claims and affirmed the Board’s findings that the prior art discloses all other limitations of the challenged claims on appeal… In a patentability determination, the Board must identify the structure of a means-plus-function limitation disclosed in the specification; it is insufficient to merely disagree with patentee’s arguments. Additionally, if a practitioner reopens prosecution and amends claims during inter partes reexamination, additional prior art can be cited against the amended claims.