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Top Federal Circuit Decisions of 2022 That No One Told You About

[To the tune of Rudolph]: You know Mayo and Markman and Alice and Fintiv; Juno and Axle (American) and Amgen and Teva. But do you recall … the handful of Federal Circuit decisions that got little press but may be important to your practice, at all? Didn’t think so. (Although this may be exaggerated—it depends on how much you read and what you remember from it.) Neither did I, so I searched through the last year of precedential U.S. Court of Appeals for the Federal Circuit opinions to find those that may have important nuggets in them, even though they weren’t high-profile or didn’t involve billions in damages.

FTC pre-holiday report warns against ‘dark patterns’ and explains why not to trust Santa

The Federal Commission (FTC) released its annual pre-Holiday report (the “Report”) explaining “how companies are increasingly using sophisticated design practices known as ‘dark patterns’ that can trick or manipulate consumers into buying products or services or giving up their privacy.” Although not specifically identified in this Report, sources claim that Santa has been under investigation for increasingly using “dark patterns” to improperly discover when each of the world’s 2 billion children are sleeping or awake, when they’ve been bad or good, and other personally identifiable information (e.g., have they seen mommy kissing Santa Claus).

Venable is Seeking a Patent Agent with Engineering/Aerospace Background

Venable LLP’s Patent Prosecution and Counseling group seeks a patent agent with a background in mechanical or aerospace engineering to join the group in the Washington, D.C., New York, NY, Chicago, IL, Los Angeles, CA, or San Francisco, CA office. This is a full-time, permanent position. The ideal candidate holds undergraduate and/or graduate degrees in mechanical engineering, aerospace engineering, electrical engineering or computer science. Strong preference for previous experience as a patent examiner and for PTO registration. Industry experience is a plus. The qualified candidate has one to three years of patent prosecution experience at USPTO or in a law firm setting. Candidates must have excellent academic credentials, strong writing skills, and sharp analytical ability.

What You Need to Know About Trade Secrets in 2022

Trade secret jurisprudence, originally conceived in the common law of torts as a way to enforce confidential relationships, now has a sharper focus directed at the property interest of businesses in the data that forms the major portion of their asset base. In the process, trade secrets have taken their place of respect alongside the “registered rights” of patents, copyrights, trademarks and designs. But just because we now enjoy statutory guidance through the Uniform Trade Secrets Act (“UTSA”), enacted with some variations in every state but New York, and national uniformity in federal courts through the Defend Trade Secrets Act of 2016 (“DTSA”), the law continues to evolve much as it did a century ago—that is, through the opinions of judges deciding individual cases on their facts.

SEP Battles in Europe, 2022: Fair, Reasonable and—Unlike the Whisky Wars—Not Over Yet

The past year has proven a difficult one for many. Russia’s invasion of Ukraine and the death of the UK’s longest reigning monarch are among the things for which the year will be remembered. But amid those dark days, one less known event shines like a tiny candle of hope: the end of the Whisky War. For 50 years, Canada and Denmark have been in dispute over the ownership of Hans Island: a battle in which the principal weapons have been strong drink and a sense of humor….. The standard essential patent (SEP) wars may feel like they have been going on for almost as long as the Whisky war. They are not as close to resolution, but 2022 has seen some progress.

Xsensus is Seeking a Patent Attorney

Xsensus is seeking a patent attorney for a full-time, permanent position in Alexandria, VA, or remote. In this role, you’ll be on the front lines working directly with clients to explore the intersections of IP and business, and you’ll be involved and working with our technologically and geographically diverse clients from day one.
Xsensus is a non-traditional law firm where the best and brightest in science and law join together to be a powerful legal presence – all while working in a relaxed, creative and stimulating environment. Our firm culture drives the day-to-day experience, and we believe work/life balance generates high-quality work and a higher quality of life. Xsensus is a place where you can be successful by being yourself and work with a diverse group of people who want to help you along the way. Join us and know that your contributions will directly influence the success of the firm and your hard work will always be recognized and appreciated. With transparent leadership, collaborative teamwork and technology-driven processes, the Xsensus team provides unparalleled services to a rapidly expanding client base. We have a global reach where relationships are the foundation to success for our clients and our firm.

Five Key Trademark, Design and Copyright Developments in Europe, 2022

Expect further developments in the passage of the designs package next year, as the details are debated in the European Parliament. Despite the extensive consultation already carried out, it is possible that changes will be made to the proposals before a final version is agreed. And the UK Supreme Court will hear the SkyKick case concerning bad faith. A judgment can be expected before the end of the year.

Claim Drafting Issues for Biotech, Chemical and Pharma Patent Applications, Part I: Claim Construction, Markush Groups, Dependent Claim Invalidation

The fields of patent prosecution and patent litigation are ever-evolving, and with every new court decision there are lessons for patent practitioners. While it is impossible to cover all of the various issues related to claim drafting for biotech, chemical and pharma patent applications, here, and in future blog posts, we will cover a range of claim drafting topics of interest.

The Top U.S. FRAND / RAND Licensing Developments of 2022: Policy Statements, Patent Pools and IEEE Changes

While 2022 was somewhat less eventful than 2021 in terms of significant developments in fair/reasonable and non-discriminatory (FRAND/RAND) licensing occurring in the United States, the past year still did not disappoint and underscores the continued and growing interest from government in the standards related patents space. In 2022, the most progress was made on matters and issues we wrote about last year: i.e. government policy developments, Continental v. Avanci, the IEEE’s standards-related Patent Policy, and Ericsson v. Apple / Apple v. Ericsson  (see here and here)

Trademarks in 2022: Recounting the Most High-Profile Trademark Developments of the Year

This year saw an increased focus on the extraterritorial application of the Lanham Act, setting up a showdown at the Supreme Court in 2023. The last year also saw cases pressing the intersection of the Lanham Act with the First Amendment and artistic expression—both in the physical world and in the metaverse—and some rulings that will help clarify the likelihood of confusion analysis in various circuits.
As 2022 comes to an end, we look forward to what 2023 has in store.

The IP News that Mattered Most in 2022, According to You

Here we are again at the end of a year—this one the first in several where courts and business proceeded mostly as usual and relatively free of shutdowns and delays due to the pandemic. We had surprising denials at the Supreme Court, expected rulings from the U.S. Court of Appeals for the Federal Circuit, a flurry of activity from the U.S. Patent and Trademark Office (USPTO) under newly appointed Director, Kathi Vidal, and some exciting precedents set in the rapidly evolving area of inventions and art created by artificial intelligence machines, among other developments. Below, some of our readers weigh in on what IP news mattered most to them in 2022—add your thoughts in the comments below!

This Week in Washington IP: How to Become an Administrative Patent Judge, A Debate on Cryptocurrency Regulation, and What is the Future of the U.S.-Japan Relationship

This week in Washington IP news, the USPTO is hosting an event on becoming an Administrative Patent Judge, and the Brookings Institute is hosting a debate on cryptocurrency regulation.

Five Patent Highlights from Europe in 2022

The long-awaited introduction of the Unitary Patent and UPC should provide much interest in 2023, with attention likely to focus on the early numbers of applications for unitary effect, as well as the number of European patents opted out and the volume and nature of cases brought before the Court. At the EPO, decisions are expected from the Enlarged Board of Appeal in Case G 2/21, which concerns plausibility and post-published evidence, and Cases G 1/22 and G 2/22, concerning entitlement to priority. Oral proceedings in G 2/21 were held on 24 November. And the UK Supreme Court should hear the DABUS case and deliver its judgment in 2023.

AI Year in Review: A Busy 2022 for AI and IP Promises Even More in 2023

In general, the adoption of artificial intelligence (AI) and machine learning technologies has the potential to impact society in many ways. These technologies can automate tasks and make them more efficient, which can lead to job displacement and other economic impacts. They can also be used to make decisions that affect people’s lives, such as in the criminal justice system or in hiring, which raises ethical concerns. Additionally, the development and use of AI and machine learning technologies can raise issues related to privacy and security. What could be a more fitting way to open a 2022 year-in-review article on AI and machine learning than by asking OpenAI’s newly beta-released ChatGPT tool to contribute? The above paragraph was generated using ChatGPT’s conversational, chat-based dialog input. The initial request of ChatGPT was the prompt: “Explain the social impacts of artificial intelligence and machine learning technologies over the past year.”

Barclay Damon is Seeking a Patent Paralegal

Barclay Damon LLP, a leading law firm of nearly 300 attorneys that operates from a strategic platform of offices located in the Northeastern United States and Toronto, is seeking a patent paralegal to support its Patents & Prosecution Practice Area. This is a full-time, permanent position in any of the following locations: Syracuse, NY, Rochester, NY, Buffalo, NY, Albany, NY, New York City, NY, Boston, MA, New Haven, CT, Washington D.C. A remote or hybrid working arrangement may be possible.