At the end of 2023, Law 14,785/2023 was published in Brazil’s official gazette, creating a new regulatory framework for chemical pesticides and environmental control products. The result of decades of discussions in the National Congress, the new law brings provisions that represent improvements to the system, such as the mandatory use of risk analysis in the process of granting registration of products and the requirement to harmonize with internationally established standards.

Today, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision in CyWee Group Ltd. v. ZTE (USA), Inc. affirming the Patent Trial and Appeal Board’s (PTAB) invalidation of CyWee’s 3D pointing device patent claims. In affirming the final written decision, the appellate court found that ZTE’s lack of adversarial nature in inter partes review (IPR) proceedings allowed LG Electronics, a joined party that was otherwise time-barred, to properly oppose CyWee’s motion to amend patent claims.

The Bayh-Dole Coalition yesterday submitted comments to the National Institute of Standards and Technology (NIST) asking the agency to withdraw the recently published Draft Interagency Guidance Framework for Considering the Exercise of March-In Rights. The Coalition’s Executive Director, Joseph Allen, who authored the letter and formerly served as the Senate Judiciary Committee staffer to Senator Birch Bayh (D-IN), explained that “the framework would irreparably undermine one of the most successful laws in American history.” While Bayh-Dole contemplates march-in rights, the law strictly limits the situations in which such rights can be exercised and does not make any reference to pricing as a criterion for marching in. March-in requests have been rejected on a bipartisan basis multiple times since the bill became law and even then-Senator Joe Biden himself has opposed attempts to inject price controls into the law.

When I was in law school, my business associations professor began the semester by telling the class that debt and equity are essentially the same thing. In her view, both involve money going from one organization to another (i.e., the parties exchange “capital” or “debt”). And both are concerned with how the receiving organization will ultimately compensate its counterparty (i.e., do they get a fixed payment or a share of profits). From this perspective, debt and equity exist along the same continuum, with the primary difference lying in the allocation of risk between the parties through the distribution of control and economic rights. Litigation finance and insurance are quickly approaching a similar moment of conceptual and practical unity in which the dividing line between the two products is blurring and they are increasingly used together.

The U.S. Supreme Court heard oral arguments today in two cases that are challenging the so-called Chevron deference doctrine, which says courts should defer to administrative agencies’ interpretation of the statutes delegated to them when there is an ambiguity. While the conservative justices’ questioning largely leaned in favor of scrapping the doctrine, Justices Kagan, Sotomayor and Jackson pushed back on the petitioners’ arguments, predicting chaos, and the U.S. Solicitor General said overruling such a foundational doctrine would result in “endless litigation.”

On January 16, the U.S. Copyright Office published a final rule in the Federal Register amending agency regulations on small infringement claims filed at the Copyright Claims Board (CCB). Responding to comments from both the legal and copyright industries, the Copyright Office’s final rule addresses disputes to the form of CCB proceeding chosen by claimants, as well as the discretion of CCB officers in penalizing evidentiary violations. As drafted, the Office’s final rule on smaller claim proceedings will become effective on February 15.

Jamie L. Simpson is the Chief Policy Officer and Counsel for the Council for Innovation Promotion (C4IP) and has previously served as Chief Counsel for the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet, and in various roles at the U.S. Patent and Trademark Office (USPTO). In the latest episode of The SEP Couch, Tim Pohlmann spoke with Simpson about  how IP is dealt with in the United States and, in particular, the topic of standard essential patents (SEPs), and explained that the situation is certainly more complicated than is appreciated from the outside.

Reasonable compensation for standard essential patent (SEP) holders is crucial to create the incentives for adequate investments in standards. In particular, high-quality standards have underlain the development and proliferation of the global wireless technologies that have played such a central role in the innovation-driven growth of the internet economy. (For the key role of strong standards in technological innovation, see, for example, here, here, here, and here). It follows that the discriminatory reduction of compensation for SEP holders would reduce their incentives to participate and invest in standard setting. This in turn would reduce quality of future standards that will be key to economic growth and vitality.

Masimo’s legal team told the U.S. Court of Appeals for the Federal Circuit (CAFC) in a January 15 filing that the Exclusion Order Enforcement Branch (EOE) of U.S. Customs and Border Protection has cleared a redesigned version of the Apple watches that were banned by the International Trade Commission (ITC) in late October. The CBP’s decision has not been made public. According to the filing, the redesigned watches do not contain pulse oximetry technology, which was the subject of the ITC exclusion order. The decision, which has not been made public, removes any danger of irreparable harm alleged by Apple, according to the filing.

The intellectual property regime of the International Trade Commission (ITC) made mainstream news this year with its ban on Apple Watch importation and sales in the dispute between Masimo Corporation and Apple. While that dispute is ongoing and the subject of much coverage already, here are five other key IP cases with a variety of important rulings for parties at the ITC—particularly some outside of the typically patent-centric docket.

Being able to quantify risk probabilities for a trade secret helps owners make strategic decisions in intellectual property management, such as choosing the type of intellectual property protection, considering opportunities for M&A, licensing, and improving the reliability of protection. As a result, this quantification enables the extraction of more value from intellectual property, particularly when managing middle- and large-sized IP portfolios. Let’s explore one possible approach to quantification by modeling an example case, quantify probabilities for risks derived from both the competitor and owner and its influence on Expected Monetary Value (EMV), and then discover some non-trivial suggestions for improving the efficiency of trade secret management.

Section 311(b) of the America Invents Act (AIA) provides that a patent can be challenged in an inter partes review (IPR) “only on the basis of prior art consisting of patents or printed publications.” A published U.S. patent application that never issued as a patent can be used as the basis for an IPR challenge because it’s printed and it’s a publication, right? Not so fast.

In Vidal v. Elster, No. 22-704, the United States Supreme Court has heard argument and is expected to decide in the next several months whether Section 2(c) of the Lanham Act can prevent the federal registration of TRUMP TOO SMALL as a trademark for shirts and hats. Section 2(c) prohibits, inter alia, the registration of the name of a particular living individual without his consent. The issue in Elster is whether the First Amendment’s guarantee of free expression transcends Section 2(c)…. To the extent that Section 2(c) survives, in whole or in part, and apart from weighty constitutional concerns which the Court is expected to resolve, there are numerous other problems lurking in this old, dark and dusty subsection—which  are not particularly “small” at all—which only Congress can fix.

Senators Thom Tillis (R-NC) and Chris Coons (D-DE) have introduced a bill to study the inefficiencies in the reporting system required under the Bayh-Dole Act, with an eye toward streamlining processes. Titled the “Improving Efficiency to Increase Competition Act of 2023,” the bill would direct the Comptroller General of the United States to submit a report to Congress on the impact of the various reporting requirements implemented by different agencies under Bayh-Dole for intellectual property developed by federal grantees.

This week in Other Barks & Bites: OpenAI faces another lawsuit, this time from two journalists alleging copyright infringement; the International Trade Commission (ITC) makes its case before the CAFC to reimpose an import ban on Apple Watches; and OpenAI tells the UK government that it could not make ChatGPT without copyrighted material.