Posts Tagged: "Guest Contributor"

These revisions favor patent owners, according to Palmer, but not everyone is supportive. For instance, Bilski, Mayo, Myriad, and Alice have given several accused infringers an additional tool for fighting non-practicing entities. So. the level of support for these revisions will depend where you fall on this spectrum. That being said, Palmer does not think the Court will change its eligibility analysis in the foreseeable future, and Congress is not likely to take up these anytime soon.

Given the broad range of countries deploying UAVs and the large number of applications for UAVs, we took a look at patent data from the last 20 years (1997 to 2016) to determine whether any trends in UAV development could be identified. Our findings show some surprising results with regard to development and patenting of drone technology. In this analysis we focuses on the top-5 patent offices for obtaining UAV related patents, the State Intellectual Property Office (SIPO) in China, the United States Patent and Trademark Office (USPTO), the European Patent Office (EPO), the Korean Intellectual Property Office (KIPO) in South Korea, and the Japan Patent Office (JPO).

The U.S. patent system is the primary contributor for the U.S. economy. Since the foundering of the nation, the patent system has fostered an innovation culture that is directly responsible for making inventions that are more than all inventions accumulated in all major civilized regions in several thousands of years. However, the U.S. has inherent disadvantages in the political system and court systems… After the irreparable damages of public trust in the patent system, overhauling the patent system is no longer a feasible option. To continue existing as a powerful nation in the world, the U.S. must put its population back to the inventing business and create a renewed innovation culture, which could reach the entire population. It cannot count on the “miserable system” known in Thomas Edison’s time. Due to intensified competition and critical roles of technologies in competition, America must do far more than what is necessary to turn the dead patent system back to the same “miserable system”. One more thing that the Congress should do is to revive all invalidated patents under the AIA.

In traditional music recording, artists have had to choose to license their music through major music industry organizations like ASCAP and BMI. In the age of streaming music through Spotify, Pandora and other services what is the purpose of these organizations? The licensing groups have served as clearinghouses for smaller players in the music industry who cannot feasibly deal with multitudes of licensees on their own. But with Taylor Swift and other “major” artists choosing to deal—or not deal—with the streaming services that opens the question about blanket music performance licenses.

The Ninth Circuit clarified the requirements for pleading and establishing a trademark infringement claim under a reverse confusion theory in Marketquest Group v. BIC, Case No. 15-55755 (9th Cir. July 7, 2017). The court relieved plaintiffs from having to specifically plead reverse confusion if it is compatible with the theory of infringement alleged in the complaint, and supported a more malleable standard for proving intent in reverse confusion cases. The court also held that good faith is an element—not just a factor—of a fair use defense, and that the fair use defense may only be raised after a likelihood of confusion is established. Marketquest further reinforces courts’ reluctance to decide trademark cases on summary judgment, and makes it more difficult for defendants to dispose of reverse confusion claims through pretrial motions. 

As Stone Creek deepens the divide among circuits, the issue of whether willfulness is required for disgorgement of a defendant’s profits in trademark cases is ripe for Supreme Court review… The Stone Creek decision solidifies the Ninth Circuit’s position that willfulness is required for a recovery of profits in trademark cases. This approach is consistent with equitable principles because disgorgement is generally used to deter culpable behavior and deterrence would not be necessary, and would not work, for an innocent infringer. Depending on the facts of a case, trademark law provides sufficient remedies to prevent a likelihood of confusion and compensate a plaintiff for its losses—beyond a defendant’s profits—like an injunction, actual damages and/or corrective advertising. An award of profits can be reserved for willful infringers, without depriving a plaintiff of remedies for non-willful infringement.

At an initial examination proceeding, JPO examiner refused the trademark with respect to all goods in class 9 on the grounds that consumers can easily perceive or conceive the late Whitney Houston, an American famous singer from the applied mark “WHITNEY HOUSTON” written in a common font design. Besides, in a business to deal with music recordings, the title of a song or an album as well as name of performer or player are routinely indicated on goods or packages to show contents of it. Therefore, relevant consumers and traders at a sight of the applied mark used on designated goods in class 9 are just likely to conceive the goods contains music or performance by the late Whitney Houston. If so, IR no. 1204044 is subject to refusal based on Article 3(1)(iii) of the Trademark Law. Furthermore, when the applied mark is used on music recordings unrelated to Whitney Houston, consumers will surely be in trouble since they expect the goods contains song or performance of the late Whitney Houston. If so, it should be refused for registration based on Article 4(1)(xvi) due to misconception of quality of goods.

Many states have statutes that make counterfeiting a state crime, but often only if the trademark is registered in that state. According to Lo Cicero, state registrations give local prosecutors and law enforcement officers jurisdiction – and they may be more able and willing to tackle local counterfeiters than are busy federal prosecutors. Thus, where budgets will allow and brand owners have significant counterfeit concerns obtaining state trademark registrations in at least several states, including California and New York, could be a worthwhile investment.

Lawyers often wonder how to enhance their marketability and in the process, generate more revenue or improve their image.   After all, success at a firm is about “revenue generation.”  Success in a corporation or in the government also depends on your credibility and your ability to be a “go-to” person within the company or government agency.   To be a successful lawyer, you need to have a brand.  I explain below 6 easy ways to make your mark… Law firms are fighting for a smaller pool of work and as a result, are required to compete for that work at more competitive rates. If you want to get the work and charge higher rates, there must be a reason for the client to hire you. In other words, it’s your brand that counts.

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.

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.

Employers should think twice before including the unenforceable provisions in employment contracts merely for their deterrent effect. Such a practice is risky. If an employer terminates an employee who refuses to sign an agreement that contains an unenforceable non-compete provision, such action would constitute a wrongful termination in violation of public policy and would entitle the employee to recover tort damages, including punitive damages, as well as economic damages… Given the strong protections against non-competes in California, it is too risky to require employees to sign employment agreements that contain these provisions. All employment agreements entered into with employees who live or work in California should be carefully reviewed to ensure compliance.

Even though traditionally valuation professionals have used a combination of cost-based and market-based valuation, more and more practitioners are using income-based valuation in combination with market data.  The income-based model focuses on what potential monetization or potential impact on business a patent portfolio might have, and as such, it is much more dynamic and reliable… For patent portfolios of potential future value, technology risk is preferred over market risk and one could use current market data to benchmark future value while building an income-based valuation model.

Under the Federal Rules of Civil Procedure, a party waives its right to assert a defense of improper venue when it fails to raise the defense in a pleading or with other Rule 12 motions.  Importantly, however, that waiver only takes effect if the defense was “available” to the party at the time of filing either the pleading or motion.  Many circuits, including the Federal Circuit, interpret that requirement by recognizing an intervening law exception to the waiver of a defense, whereby an intervening change in law makes available a defense that had not previously been available.  Does the Supreme Court’s decision in TC Heartland constitute a change in the law?  Was the defense of improper venue unavailable until May 22, 2017?

“Filing a trademark application with the goal of claiming a right to a particular term – with nothing more – is a fundamental misunderstanding of our trademark laws,” Alston & Bird partner Jason Rosenberg, explained. “Individuals and corporations rushing to design t-shirts and coffee mugs with phrases like ‘What the covfefe?’ on them aren’t likely to be able to claim ownership of the term, or stop anyone else from using it. You cannot simply hear a word you like, file a trademark application, and claim it as your own.  In the United States, the law requires more.”