Posts Tagged: "Guest Contributor"

Virtual reality and augmented reality are catching on, and the fashion industry has taken notice. Many of today’s fashion brands are seeing their work being used in this disruptive technology. But, this has caused trademark issues for both fashion companies that want to protect their brands and fashion technology companies that want to bring those brands into the virtual reality world. Moira Lion and Jeff Greene, with the Intellectual Property Group at Fenwick & West, recently sat down with IPWatchdog to discuss how to approach VR innovations as they develop brand protection.

High novelty, high non-obviousness standard, inconvenient court venue for patent owners, and limited availability of injunction remedies, reduced damages, threaten liabilities will hurt all classes of inventors except that it has less impact on corporate inventors. The invalidation procedure will discourage inventive activities of all classes with most serious impacts on independent inventors and accidental inventors. This is one biggest class of inventors who often come up with game-changing and surprising inventions. When would-be-inventors run into problems or solutions, why would they spend time and money to make inventions, spend more money to get patents, and get the business to defend patents in endless invalidation actions? High patent quality standard forces existing professional inventors to leave their invention business and discourage young people from becoming future inventors. In this highly uncertain time with a large number of dormant epidemic diseases, one or a few inventions may save population life when vaccine is unavailable.

Twitter®, Instagram®, Facebook®, Pinterest® and other social media websites and apps are great avenues for advertising and promotion of one’s business and brand. However, in using social media to promote one’s business, there are a number of pitfalls that one must avoid. Using social media in relation to a business is not the same as using social media for personal, non-commercial use… The issues with using someone else’s copyrights, right of publicity and trademark in social media to promote a business is that the business is arguably profiting off of someone else’s property that does not belong to them. That can and does create a significant amount of conflict. Profiting from another’s property is what separates the use of social media in business from just personal use.

The UK Supreme Court recently addressed the extent to which under the European Patent Convention 2000 (“EPC 2000”), a patentee may obtain protection against products or processes that are not covered by the literal meaning of the claims. In doing so, the UKSC modified what had been previously seen as the established approach of the UK courts towards ‘equivalents’. In particular, while not disapproving the test, the Court has chosen to reformulate the three “Improver” questions that, since 1990, have been in common usage for aiding determinations as to what might constitute patent infringement… The UKSC has concluded that subsequent to the Improver decision, which was then reinforced by the judgment in Kirin-Amgen, there has been a tendency by the UK courts to place “..too much weight on the words of the claim…” and what the patentee might have anticipated or intended. Instead, the UK courts should have focused on whether, on a basis of fact and expert evidence, the variant is a true equivalent of the invention as described in the patent.

Patent trolls – as well as calls for changes to the law to prevent them – date back to at least the 1800’s. A look at their history suggests that they have more to do with fluidity in the definition of patentable subject matter than any unique feature of a particular class of inventions… A change in a fundamental definition of what comprised patentable subject matter, and that change brought a major building block of commerce into the ambit of the patent system. In the age of the sharks, the farm remained the core of the U.S. economy, driving a gold rush of new patents covering every element of the farming process. Such a rush also encourages the formation of patent thickets, as speculators scramble for any potentially protectable chunk of the market. The same phenomenon drove the development of modern tech and software patents. In the aftermath of State Street, once again the market found that the machinery that undergirded the economy was suddenly open to being patented, leading to a similar gold rush.

Inherent obviousness cannot be based on what the inventor thought, and, in addition, the results in a particular case may not be inherently obvious depending on what was expected by a person of ordinary skill. The court pointed out “’the mere fact that a certain thing may result from a given set of circumstances is not sufficient’ to render the results inherent.” Millennium Pharmaceuticals, 2017 WL 3013204, at *6 (citations omitted by author). The court also held that it is never appropriate to consider “what the inventor intended when the experiment was performed,” even though Millennium “conceded as a matter of law that the ester is a ‘natural result’ of freeze-drying bortezomib with mannitol.” Id. Thus, hindsight reasoning should never be applied and, obviousness is “measured objectively in light of the prior art, as viewed by a person of ordinary skill in the invention.”

Immunotherapy has emerged as one of the most promising mechanisms to combat diseases like cancer and microbial infections. Since 2000, multiple antibody drugs have reached blockbuster status, including the anti-TNF antibodies adalimumab and infliximab, the anti-CD20 antibody rituximab, the anti-VEGF-A antibody bevacizumab, and the anti-HER-2 antibody Trastuzumab. In 2016, five of the top 10 pharmaceuticals were antibody drugs, with combined sales exceeding $45.8 billion. The cancer immunotherapy market is expected to reach nearly $120 billion… The promise of immunotherapy as a treatment option has opened up the intellectual property landscape of the field. Many companies and institutions have filed patent applications related to the various drugs and targets… The claim language in a patent is crucial to the effective protection of the invention, and the balance between breadth of the claims and validity is a difficult one to achieve.

The U.S. inventor pool is now limited to corporate inventors and a very few resilient professional inventors. The number of professional inventors will rapidly decrease with fewer and fewer of young people joining the inventor population… U.S. patent applications are predominately filed by foreign corporations, while for all other national patent offices the domestic applications comprise a super majority. In 2016, the Chinese patent office received totally 3,465,000 applications for three kinds of patents, making an increase of 23.8% year on year. The number for invention, utility model and design are respectively 1,339,000 (increase by 21.5%), 1,476,000 (increase by 30.9%) and 650,000 (increase by 14.2%). China has a high share of domestic applications (which means that inventive activities take place inside the country). The total application number in 2016 is 1,339,000+1,476,000=2,815,000. Patent applications filed with China patent office in 2016 is almost ten times of the U.S.-originated applications filed with the U.S. patent office. The number of patent applications filed with Japanese patent office is close to the U.S.-origin applications filed with the U.S. patent office. South Korea will surpass the U.S. in application filing number.

Patent reformers argue that too many patents can hurt business, and low-quality patents cause problems. Their lobby activities have successfully persuaded the Congress to pass the AIA, with the primary purpose to raise patent quality…. The patent office uses all patent rules in an even-handed manner to all applicants. So, it treats corporate applicants and U.S. individual applicants in the same way: entering frivolous rejections, using one-way bias high patent quality standard, giving the same opportunity to demand inter-party review (by paying $23,000), and affording the same opportunity to defend a challenge to patents (which would consume hundreds of thousands of dollars of attorney fees). Nobody can question those rules.  However, this money-can-buy fairness practices have distorted technological landscape. Frivolous rejections can force individual inventors to abandon their applications, but do not affect giant foreign corporations; outrageous fees and maintenance fees can discourage individual inventors, but will not affect foreign corporations; and the right of harassment can be used by all corporations but not U.S. independent inventors.

Instead of using claims of trademark infringement and more expensive design patent infringement (if a design patent is even obtained), one can expect manufacturers of useful articles such as apparel manufacturers and designers to rely more often upon copyright to enforce their rights against knock-offs, and to seek more copyright registrations for design features on useful articles.

Lawyers are constantly bombarded by challenges that naturally create fear and anxiety. Many lawyers don’t recognize these fears and fail effectively to deal with them. This causes many lawyers to be unhappy and to provide less than outstanding service to their clients. I identify many of these looming fears and present some practical tips for dealing with them… The consequences of these fears include drinking too much alcohol to relax, being snippy or yelling at people at work, eating too much and getting poor sleep.   You can deal with this stress in much more productive ways and be happier doing so.

Intellectual property is distinguished from “real property” because the property itself exists in our heads and needs to be “created” through a process of description and examination. If approved and granted, your property is described in a proxy form such as a patent, copyright registration, or trademark registration. There is no livery of seisin ceremony. You cannot walk the property line of your patent or plant a garden in your copyright registration. To get a patent, you have to create.

Patenting the distinctive technological features that drive demand for your products and services will make your patent portfolio more valuable by creating a link, or nexus, between your patent portfolio and your products. You can use this nexus to exploit your patents by preventing your competitors from including the most valuable features of your products in their own products without your permission; commanding a higher royalty if you license your patents; increasing your chances of getting an injunction if you need to enforce your patents;
increasing your damages base if you enforce your patents; and defending against an obviousness attack on your patents’ validity by showing that the patented features increased your market share.

The African economy, which is home to more than a billion people, has tripled since the year 2000 (Michael Lalor; 2014) and currently houses 9 of the 15 fastest growing economies in the world (Spoor & Fisher; 2016), presenting immense business opportunities. In this article, we shall take a look at the patenting systems in Africa, which are a complicated mix of National and Regional systems, and the costs involved… The lack of a single regional patent office makes the process of obtaining patents in Africa an extremely challenging one as applicants have to navigate their way through a bundle of regional and national legislations, each mandating its own set of procedures.

We need to ask ourselves: what are the defining features of a “filler patent”? At least two things stand out. First, “filler patents” go through more rounds of prosecution than other patents. Secondly, the independent claims of “filler patents” are longer (have higher word counts) than other patents… A “round of prosecution” means an Office action from the USPTO and the applicant’s response. It is typical for “filler patents” to go through multiple rounds of prosecution, such as six or more rounds. At each round of prosecution, the claims are tailored, so that the scope of protection of the resulting patent is whittled down until essentially nothing is left. Then the application is allowed to issue.