Posts Tagged: "intellectual property"

One thing you should never say in 2020 is: “Well, at least things can’t get any worse.” They can and often do. The latest exhibit—in the intellectual property space at least—is a letter to Health and Human Services (HHS) Secretary Azar, National Institutes of Health (NIH) Director Collins and Food and Drug Administration (FDA) Commissioner Hahn authored by California Attorney General Xavier Becerra and Louisiana Attorney General Jeff Landry. It’s also signed by 32 other state attorneys general, along with those representing the District of Columbia, Guam and American Samoa. They are demanding that the government use its authorities under the Bayh-Dole Act to march in against Gilead Sciences, the maker of the COVID-19-fighting drug remdesivir, so that it can be made more widely available at a lower cost.

Greetings; John White here. It is time for you to “Think PCT” [Patent Cooperation Treaty] anew. If the last thing you remember hearing me say about the PCT was some pneumonic about how to ensure an International Filing Date (English Applicant Requests Priority Designation!), or how to calculate an old Section 102(e) date under the FOoT/DUSE  (Fee Oath Translation/ Designate United States (publish in) English) Rule for the Patent Bar Exam: good, you still remember it! You’ve put off senility a little further by keeping these things circulating in your steel-trap like brain! (Sadly, my voice is probably still rattling around in there as well, I suppose. Sorry about that…) But, let’s move on; it is now time to really understand the use and implementation of a PCT strategy in the modern era. The world is changing rapidly!

This week, district courts saw 91 new complaints, a large portion filed by IP Edge subsidiaries, such as Karetek Holdings, LLC; Guada Technologies; Tunnel IP, LLC; Altair Logix, LLC; Coretek Licensing, LLC; and Raindrops Licensing, LLC, with the rest being Intellectual Ventures selloffs, company-to-company disputes (like the Skull Shaver, LLC v. Freedom Grooming design patent case), and some pharmaceutical filings.

There were 17 discretionary denials under Section 325; 41 PTAB petitions filed—one post grant review (PGR) and 40 inter partes reviews (IPRs)—a number buttressed largely by Amazon filing seven IPRs against VB Assets, LLC – an assertion vehicle apparently spun out of AI-voice company, VoiceBox, after Nuance purchased them last year – as well as Samsung filing five IPRs against Clear Imaging Research, LLC, an entity run by the former co-founder of Soryn IP. This was rounded out by a five-IPR battle between Monolitic Power Systems and Volterra Semiconductor over licensing semiconductor technology.

In two months, the Supreme Court will hear the oral argument in the long-running Google v. Oracle software copyright case. At issue is the availability of copyright protection for computer programs and in particular the copyright protection of code in Oracle’s Java platform, which Google admits it copied for its Android operating system without obtaining a license. Google also claims its commercial use of that code in competition with Oracle is protected under copyright law’s fair use doctrine, but that is a subject for another day. If adopted by the Supreme Court, Google’s arguments would undermine the Constitutional purposes and specific Congressional intent in enacting the Copyright Act, and along with them the fundamental incentives for new creative expression in software, a building block of so many consumer and industrial products. To better understand how, it helps to start at the beginning: Apple’s groundbreaking release of the iPhone.

On January 9, 2019, Moderna Therapeutics, Inc. (“Moderna”) filed a petition requesting inter partes review of U.S. Patent No. 8,058,069 (the ‘069 patent) owned by Arbutus Biopharma. The ‘069 patent is directed to lipid nanoparticle technology, the same technology that Moderna is using in its efforts to develop a vaccine for COVID-19. The Patent Trial and Appeal Board (PTAB) instituted review, but in their decision last week, determined that Moderna had not shown, by a preponderance of the evidence, that claims 1-22 of the ‘069 patent are unpatentable under 35 USC § 103.

Much has been written about the uncertainty in U.S. patent law concerning laws of nature, natural phenomena, and abstract ideas following the Supreme Court’s decisions in Mayo v. Prometheus and Alice Corp Pty Ltd v. CLS Bank Int’l. A recent decision from the Enlarged Board of Appeal at the European Patent Office (the Enlarged Board), however, demonstrates that the United States is not alone in grappling with issues surrounding patent eligibility. In the case of genetically modified plants and animals, questions arise on where to draw the line between human invention and biological processes. Earlier this year, the Enlarged Board reversed a 2015 decision that had held that product-by-process patents could be sought for genetically modified plants and animals despite a patent exclusion for “essentially biological processes.” 

On August 3, the United States Court of Appeals for the Federal Circuit (CAFC) denied a petition for rehearing en banc and issued a modified opinion, following a petition for rehearing filed by Ariosa in Illumina, Inc. v. Ariosa Diagnostics, Inc. Sticking closely to the reasoning of its March opinion, the CAFC reversed a decision by the United States District Court for the Northern District of California that claims of U.S. Patent Nos. 9,580,751 (the ’751 patent) and 9,738,931 (the ’931 patent) belonging to Sequenom and Illumina (Illumina) were invalid under 35 U.S.C. § 101 as being directed to an ineligible natural phenomenon.

In Article 1, Section 8, Clause 8, of our Constitution, the founders were relatively specific. The founders give Congress power to secure “the exclusive Right” to “Authors and Inventors” in the “Writings and Discoveries”. Congress is given  specific direction on how to do it (i.e., “for Limited Times”), and why it should be done (i.e., “To promote the Progress of Science and useful Arts”). Unfortunately, the Leahy-Smith America Invents Act (AIA) of 2011 dramatically changed how the Executive branch implements the Constitutional prerogative.  The AIA transferred power constitutionally allocated to the judicial branch to the executive branch – specifically, to Administrative Patent Judges (APJs) in the USPTO. In the process of implementing the Patent Trial and Appeals Board (PTAB) on which the APJs sit, judicial independence, judicial ethics, rules of evidence, and other protections commonly afforded rights holders in disputes adjudicated by the federal judiciary were sacrificed in the name of expediency.

On Friday, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued Orders granting a request for panel rehearing and denying a request for rehearing en banc in response to a joint petition filed by American Axle & Manufacturing (AAM). The CAFC also issued a precedential modified opinion of its October 3, 2019 opinion in American Axle & Manufacturing v. Neapco Holdings. In the Order Denying Rehearing En Banc, Judges Newman, Moore, O’Malley, Reyna, Lourie and Stoll dissented from the denial of rehearing en banc. Each of Dyk, Chen, Newman, Stoll and O’Malley wrote separately.

Some fictional characters are heroes; others are villains. Some mimic reality and others personify fantasy. And some appear in comic books and video games, while others in television shows and movies. Fictional characters epitomize the essence of creativity. And while copyright law is designed to encourage creative works, the law on character copyrights is in chaos. Every circuit to address this area of copyright law applies a different test. And some tests—like the Ninth Circuit’s—favor behemoth entertainment corporations over individual artists and independent companies. An objective, clear test that honors foundational principles of copyright law is needed. Robins Kaplan LLP petitioned for certiorari with the U.S. Supreme Court today on behalf of the Moodsters Company [link]. Moodsters Co. asks the Court to review the Ninth Circuit’s decision that dismissed its 89-page amended complaint and found the Moodsters characters uncopyrightable as a matter of law. The Supreme Court has never before addressed character copyrights.

There is a symbiotic relationship between innovation and patents. The innovation that we say we most want is cutting-edge innovation that requires time, money and determination to bring into being.Unfortunately, paradigm shifting innovation does not come cheap. And patents are the lifeblood of this type of disruptive innovation. Those within the industry know this to be the case, and today the Alliance of U.S. Startups and Inventors for Jobs (USIJ) released a report detailing a comprehensive study that confirms the importance of patents and the consequences of a patent system in the United States that has veered away from strong protections for innovators and toward rules and laws that make it ever easier for implementers to copy the innovations of creators without remuneration.

On Thursday, July 30, U.S. Patent and Trademark Office (USPTO) Commissioner for Patents Drew Hirshfeld and other USPTO staff updated attendees of IPWatchdog and LexisNexis’ webinar, “A Conversation with the Commissioner: A Look Inside Patent Processes at the USPTO,” on issues such as staffing, reopening plans, and upcoming new processes for routing patent applications.

The Supreme Court is currently considering several pleas to review the holding in Arthrex v. Smith & Nephew I and Arthrex v. Smith & Nephew II in the form of four petitions for writs of certiorari: U.S. v Arthrex, No. 19-1434, Smith & Nephew v. Arthrex, No. 19-1452, Arthrex v. Smith & Nephew, No. 19-1458, and Arthrex v. Smith & Nephew, No. 19-1204.  Recently, there has been an uptick in activity in the various cases, with Arthrex most recently filing response briefs in two cases and amicus brief filed by Askeladden LLC and the New York Intellectual Property Law Association (NYIPLA) in U.S. v Arthrex.

Since 2014, when a decision of the Brazilian Patent and Trademark Office came into force that held trademarks could obtain “high renown” status through a specially-created procedure, there has been a marked increase in such requests in Brazil. However, this increase has also demonstrated that several marks which common sense would say that are well known and recognized by the public have been rejected due to technicalities. This article will tackle the main issues that may arise during the finding of a famous or high renown trademark in Brazil, and how to avoid them.

On July 29, Askeladden LLC filed an amicus brief in support of the U.S. Government’s combined petition for a writ of certiorari in U.S. v. Arthrex, Inc., No. 19-1434. In particular, Askeladden asks the Supreme Court to accept the petition and address the threshold question raised by the U.S. Government: whether, for purposes of the Appointments Clause, U.S. Const. art. II, § 2, Cl. 2, administrative patent judges (APJs) of the Patent Trial and Appeals Board (PTAB) of the U.S. Patent and Trademark Office (USPTO) are “principal officers” who must be appointed by the President with the Senate’s advice and consent, or “inferior officers” whose appointment Congress has permissibly vested in a department head.