Posts Tagged: "Guest Contributor"

When a rule becomes a target, it ceases to be a good rule.  In the three years since the Supreme Court issued its opinion in Alice, there have been positive changes to patent applications, but there remains a long-term risk that patent practitioners will use tricks to beat the Alice test.  Here, we focus on the changes to patent applications by drafters, as well as changes to patent applications that have issued since Alice… Previous analyses have reported that patent specification length has been increasing since long before 2010. As shown in Figure 3, from 2010 to 2013, the average patent application length was approximately 12,417 words. However, from 2015 and 2017, the average patent application length increased to over 14,700 words… Alice appears to have resulted in positive developments, such as narrowing the scope of claims and increasing disclosure of technical benefits of inventions in the specification.

One of the interesting theories posed by the case is Character for Hire’s claimed right to use Disney characters, which derive from Norse mythology or centuries-old fairy tales. In its response to Disney’s motion for summary judgment, Characters for Hire argues that many of the Plaintiffs’ copyrights are based on prior works that have been in the public domain for hundreds of years such as Cinderella, Snow White, Rapunzel, Sleeping Beauty, Aladdin, Princess Aurora, Beauty and the Beast, the Little Mermaid, Thor and Loki. “It will be interesting to see how the Court delineates between established fairy tale characters and the original expression added to them by Disney,” Furey said.

Recently a client asked me for advice on setting up a “reverse engineering” project. He no longer had access to any trade secrets of his former employer; what could possibly go wrong?… In most circumstances, there is nothing wrong with reverse engineering. The recently-enacted Defend Trade Secrets Act declares that it cannot be an “improper means” of acquiring information. (In fact, if you properly reverse engineer a product, the information you discover can be held by you as your own trade secret.) The reason behind the rule is apparent when you consider the limits of trade secret protection: selling a product that reveals the design and method of its manufacture means the secret is imperiled. If it is very easy to discern, then the secret is lost immediately. If it might take some time to figure out, then that’s called reverse engineering, and anyone is allowed to do it.

Bitcoin was touted as the world’s first decentralized digital currency. It basically is a cryptocurrency which uses peer-to-peer technology to provide payment network gateway. Bitcoin is deliberately designed for public use by making it an open-source. Therefore, nobody owns or governs or control Bitcoin and everyone can be a part of it. Bitcoin financial infrastructure follows decentralized and automated systems which overcome the inefficiency of the traditional financial system. The unique feature of Bitcoin is that no one can block you from transferring money from anywhere in this world. Further, this makes whole transaction process irreversible. These transactions are recorded in a public distribution ledger called a blockchain.

This license, like many other Free Software licenses, require a legal notice to be given to the recipient when the software is distributed. Alas, it seems like Intel has not done so and as a result the distribution of Minix 3 inside the recent Intel CPUs could be copyright infringement… How can you pirate Free Software? Simple, if you do not comply with the terms and conditions of a Free Software license, then you have no right to distribute the software… Even though people who create Free Software might not necessarily be interested in monetary compensation, they are however usually interested in being named as the author. This is a right which is also part of copyright law in many jurisdictions.

Patents allow you to protect your inventions, license the use of the inventions of others, and introduce additional revenue streams to your business. Patents also require investments of time and money to maximize their usefulness. By focusing your investment and efforts on optimizing the usability of patents of value, you can improve the validation that your applications read on markets of interest, and that further your portfolio goals, help tune a patent portfolio by developing indication of use (IoU) of some applications regarding products of interest, and early cost savings by avoiding applications with challenges or concerns, use applications as soon as they are granted and improve utilization of filed inventions by identifying continuation opportunities… There are many ways that patent strengthening can improve a portfolio. By focusing on optimizing the quality of patents of value you can achieve maximum ROI from their use, and you can minimize the cost by avoiding lower-value applications as well as their future maintenance.

In justifying the constitutionality of the inter partes review (“IPR”) statute enacted by the America Invents Act (“AIA”), a common refrain persistently asserted is that patent rights emanate solely from federal statute and are therefore public rights, derived from a “federal regulatory scheme.” Another reprise is the remedial tenor of the IPR statute: Congress merely authorized a “narrow” post-issuance means for the agency to “correct its own errors.” My paper shows that both contentions above are without merit; that the exclusive patent right emanates from the inventor – not from Congress – and therefore the right adjudicated in IPRs is a “private right”; and that the notion of post-issuance “error correction” is fiction, as it overlooks the irreversible and uncorrectable exchange of rights upon patent issuance.

I was just thinking how often someone teaching intellectual property law leads the attack on the patent system when “Racing for academic glory and patents: Lessons from CRISPR” appeared. It sounds a dire warning that “overly broad patents must be reined in” as the passage of the Bayh-Dole Act “invoking patents as a mechanism for promoting commercialization of federally funded research” set off an “often socially wasteful race…for glory in academic research and in the patent sphere.” What’s particularly striking is that neither the paper nor the articles hyping it provide any evidence the CRISPR patents are restricting research or blocking commercial development. Indeed, most signs point in the opposite direction… Doesn’t a finding by NIH that there’s no evidence of any problems with how universities are licensing their CRISPR patents deserve to be mentioned? It seems like a pretty important point.

In a recent trademark opposition, the Opposition Board of the Japan Patent Office (JPO) dismissed an opposition by Mattel, Inc. – maker of the world-famous Barbie doll – who claimed “Salon BARBIES” is likely to cause confusion or association with famous Barbie doll when used on restaurant and fan club services.

Celgene faces a new gang of generics moving in on its blockbuster Revlimid®.  Over the past year, a number of generics have filed ANDAs against Revlimid®, including Dr. Reddy’s, Zydus, Cipla, and Lotus Pharmaceutical.  Those ANDAs have triggered corresponding Hatch-Waxman lawsuits from Celgene.  Among the asserted patents, most of them expire by 2022, with the exception of two polymorph patents that could extend Revlimid® monopoly until 2027.  The lawsuits are in their early stages, but an upcoming Markman hearing in the case against Dr. Reddy’s is shaping up to be critical to whether Celgene can protect is Revlimid® monopoly past 2022.

In what appears to be a clear departure from the past, in Amgen, the Federal Circuit has rejected the test, basing its rejection on the ground that it effectively eliminates the written description requirement.  Amgen at 15, 16.  According to the Court, where a functional genus claim to antibodies to a newly characterized antigen is concerned, the underlying science is not so advanced as to establish that “make and use” is equivalent to the required description of the claimed antibodies.  Id. at 16.  Drawing such equivalence, the Court said would amount to declaring a contested scientific proposition to be so settled as to be entitled to judicial notice, which the Court was not prepared to do.  Id.

When an individual or company challenges the validity of a patent, “the burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.” In other words, the challenger bears the burden of demonstrating that the patent is invalid—the individual or company holding the patent need not show that the patent is valid. However, the text of the statute is silent on the precise nature of the challenger’s burden.

For the last 20 years, manufacturers have used 3D printing to build prototypes, but it was only recently that this industrial technology entered the mainstream.  The 3D printing of products can enable faster time-to-market, save money, mitigate risk and allow manufacturers to customize a component to suit customer needs. 3D printing can produce individual, specifically tailored parts on demand. Boeing printed an entire plane cabin in 2013 and Ford can manufacture vehicle parts in four days that would have taken four months using traditional methods.

The first design patent case to go to trial since Apple v. Samsung has given design patent owners hope that a ‘total profit’ award is still achievable… Patent owners are keeping a close eye on how juries respond to the new legal framework, and will be carefully attuned to appeals from these cases as the Federal Circuit addresses the standards that apply to design patent damages cases going forward. If patent owners continue to get total profits for design patent infringement, even after Samsung v. Apple, companies are likely to increase their efforts in obtaining design patents, particularly given the current climate facing utility patents.

Specifically, the petition presents the question: is patent ineligibility under 35 U.S.C. § 101, which Congress did not codify in 35 U.S.C. § 282(b), not a cognizable defense in a patent litigation? The question presented parallels that of the one recently decided by the Supreme Court in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 137 S. Ct. 954 (2017). In SCA Hygiene, the Supreme Court examined 35 U.S.C. § 282(b), which enumerates the defenses that may be raised in a patent litigation, and held that laches, which is not recited in § 282(b), is not a defense to patent damages within the statute of limitations set forth in 35 U.S.C. § 286. RPost’s petition asks the Court to again examine § 282(b) in order to determine whether patent ineligibility under 35 U.S.C. § 101, which, like laches, is not recited in § 282(b), is similarly not a defense that may be raised in a patent litigation.