Posts Tagged: "Guest Contributor"

Patent stories don’t normally make the evening news or the major outlets unless one of the antagonists is called Apple. That changed this week when news broke that Spanx, makers of shapewear undergarments for women, founded by Sara Blakely had filed an action for Declaratory Relief against Times Three Clothiers, doing business as Yummie Tummie, in the Northern District of Georgia. Once the story got to The Huffington Post, as they say, it was on, and quickly went viral being picked up by all of the major television networks, Forbes, Business Week and most of the major newspapers around the country.

Tuesday, in Kirtsaeng v. John W. Wiley and Sons, Inc., the Supreme Court held 6-3 that the first sale doctrine of Section 109(a) of the Copyright Act trumps a copyright owner’s right under Section 602(a)(1) to bar importation of copies when they were made and sold outside the United States. The Court appropriately rejected a cramped geographic reading of “lawfully made under this title,” but largely gutted the right of copyright owners under Section 602(a)(1) to bar importation of copies. Along the way, the Court unequivocally adopted international copyright exhaustion without a lick of statutory support or evidence of Congressional intent. Given the Court’s willingness to find international exhaustion even in the face of statutory language limiting parallel imports under the Copyright Act, it wouldn’t be surprising to see the Court fully embrace international patent exhaustion in the future, since there’s even less statutory basis to bar its adoption.

In response to the scandal over a fungal meningitis outbreak, the FDA has begun a crackdown on compounding pharmacies and targeting about 30 ‘high risk’ operations in nearly a dozen states. San Francisco officials approved a referendum that will allow residents to decide whether to require city officials to hold talks with drug makers about pricing for ‘essential medicines.’ A federal appeals court upheld the conviction of a former biotech chief executive, who argued that federal prosecutors violated his First Amendment and commercial speech rights. The Federal Trade Commission filed a brief siding with generic drug makers in dispute with brand-name drug makers. At issue is whether a brand-name drug maker should be required to sell samples of its medicine to an aspiring generic rival when its medicine was approved with a Risk Evaluation and Mitigation Strategy.

Google is another technological innovator whose name comes up often every week at the U.S. Patent & Trademark Office, as they are in the habit of protecting many of their Android system and Internet developments. This week, the USPTO published 9 patent applications assigned to the firm. Some of these improve user interfaces associated with touchscreen displays or head-mounted displays. Google also received 25 patents this week, including one that looks to improve online systems of user review for products.

The US Patent and Trademark Office recently awarded over 200 new claims to user interface designer Eric Gould Bear, co-founder of MONKEYmedia. The two most recently issued patents that have 72 claims between them fall under MONKEYmedia’s “Relativity Controller” family of patents, and the Patent Office has stated that an additional 153 claims spread across three pending patent applications in the same family will issue soon. MONKEYmedia is currently suing both Apple and various Hollywood Studios for patent infringement.

Recently, we have seen two examples where the use of patent analytics have had a significant impact on the economic valuation of a collection of patents. The first involved a doubling of the value of RIM’s patent portfolio by a major Canadian bank after it was mentioned as having a stand-out portfolio in a patent study. The second involved the analysis of AOL patent assets where two different sets of analytics provided very different results. In the AOL case, when it came to the eventual purchase by Microsoft, one of the valuations matched almost exactly the price that was paid. Both of these cases demonstrate how important well thought out analytics are to providing signals of value when working with patents.