Posts Tagged: "intellectual property"

On December 27, U.S. Court of Appeals for the Federal Circuit (CAFC) Judge Jimmie Reyna authored an opinion affirming the U.S. District Court for the District of Delaware’s finding that the asserted claims of U.S. Patent Nos. 9,265,760 (‘760) and 9,339,499 (‘499), both titled “Treating Pain in Patients with Hepatic Impairment,” held by Persion Pharmaceuticals LLC,  were invalid due to obviousness. The CAFC found no reversible error in the district court’s decision and therefore affirmed.

The lack of clarity by the U.S. Supreme Court in its landmark patent case of Alice Corp. v. CLS Bank International, 573 U.S. 208; 134 S. Ct. 2347 (2014) and the subsequent failure of the Federal Circuit to achieve consistency and predictability in Section 101 jurisprudence, has resulted in the destruction of thousands of patents, especially in the fields of information technology, software and life sciences. Was it really the Supreme Court’s intention in Alice to invalidate so many good patents based on so-called judicial exceptions to Section101 such as the “abstract idea” test, which no court has been able to adequately define? How can the U.S. patent system be trusted when criteria for patent eligibility can no longer be clearly defined and courts can invalidate patents based on judicial discretion, without affording the patent owner due process such as presenting scientific and technical evidence from the viewpoint of a person of skill in the art? Due to the Section 101 problems created by the courts, owning a U.S. patent in the today is no longer an asset but a liability. Inventors are increasingly looking to other countries like China to provide protections they can no longer find in the United States—or are avoiding the patent system altogether. Where will the United States be in 10 years if innovation continues to be stifled and innovators increasingly resort to trade secrets?

This week in Other Barks & Bites: the Federal Circuit affirms a district court’s obviousness finding invalidating Persion Pharmaceutical’s liver pain treatment patent; Deputy Trademark Commissioner Meryl Hershkowitz is promoted to Acting Commissioner for Trademarks at the USPTO; Jay Hoffman will begin his new role as  Chief Financial Officer at the USPTO on January 6; the Copyright Royalty Board publishes a notice of inquiry on royalties for statutory licenses; the Ninth Circuit finds that TTAB cancellation proceedings don’t preclude claims of trademark infringement in district court; the creators of the children’s cartoon Peppa Pig score a copyright victory in Chinese courts; a New Jersey District Court finds that the SCOTUS decision in Impression Products doesn’t prevent trademark claims against resellers; Singapore announces a new chief for its international IP commercialization agency; and Tesla beats Wall Street expectations on fourth quarter car deliveries.

Earlier today, the United States Patent and Trademark Office (USPTO) announced that it will no longer accept requests to participate in the IP5 Patent Cooperation Treaty (PCT) Collaborative Search and Examination (CS&E) pilot and will no longer accept new international applications. The reason for the USPTO no longer accepting these requests is because the Office has reached the total number of applications it can accept. The operational phase of the CS&E pilot went into effect on July 1, 2018 and was established for a two-year period running through June 30, 2020. During this two-year operational phase, each of the International Searching Authorities (ISAs) participating were quite limited with respect to the number of applications they could accept, which accounts for the USPTO’s inability to accept any additional applications with a full six months remaining in pilot program.

Executives that have decision making capacity within any innovation-based organization, whether a young startup or a Fortune 500 corporation, almost universally have little or no familiarity with patents from a legal perspective. Sometimes these leaders also have little familiarity with science or technology, and are hired because they are particularly adept in leading a rapidly growing company with hopes of an initial public offering (IPO), or because they have shown a particular facility with raising ever increasing rounds of capital from investors, or for their ability to make returns to early investors on their capital investments. Whatever the case, after a high-tech startup has outgrown the founders as being the top leaders in the C-suite, it is commonplace for the top decision makers in those high-tech companies to be far more familiar with the business and marketplace realities facing technology companies than the actual science and technology that made them high-growth darlings in the first place.

Underscoring the seriousness of the threat posed by the Chinese government’s campaign to obtain results of U.S. publicly funded research, the Board of Directors at the Moffitt Cancer Center in Tampa, Florida announced that its President and CEO, Dr. Alan List, along with center director, Timothy Sellers, suddenly resigned after an internal review found they had violated conflict of interest rules regarding their relationships with China. Four researchers also abruptly left.  The actions came after the Moffitt Center conducted an internal review of collaborations between its employees and Chinese institutions as a result of warnings from the National Institutes of Health (NIH) to its grant recipients about foreign attempts to influence or compromise their research. 

In mid-December, President Trump presented a plan to lower prescription drug prices by allowing states, drug wholesalers and pharmacies to import some cheaper drugs from Canada. While reducing the cost of medicines is a laudable goal, pharmaceutical importation programs – if implemented safely and effectively – would fail to deliver the promised savings. And if implemented without the necessary safeguards, they would endanger the lives of countless patients. The plan essentially relies upon importing price controls from Canada, which will both undermine innovation and prove unsustainable. As with many “simple solutions” the devil is in the details. Not surprisingly, the Trump Administration’s plan contains very few details on implementation. And it is precisely those details that are expensive and complicated.

As the year winds down, IPWatchdog is running a series of articles on the top stories of 2019 and what’s ahead for the year to come. In Europe, all eyes will be on Brexit and its effect on IP rights, the Unwired Planet case, and the Skykick trademark decision, among others. Overall, IP law developments across the EU have offered decidedly more clarity for IP owners than in the United States this year. Here are the highlights:  

In 2019, the first-ever United States-India collaboration on intellectual property rights (IPR) education was launched. Program participants included entrepreneurs, students, and academic faculty. The initiative brought together multiple governments and agencies for a blending of ideas and priorities that elevated the experience for participants and advanced U.S.-India relations. The outcome was a sense of U.S.-India ‘team’ in collaboration to advance the cause of intellectual property education in India. The United States Consulate General Kolkata, India funded the creation of an IPR education initiative that included a series of webinars and a week-long series of summer workshops presented as the first United States-India Symposium on Intellectual Property Rights. Workshops focused on the value, importance, and use of IPR as a driver of economic success. The program was promoted within the practitioner, academic, and business community through email, Facebook, LinkedIn, and other social media including distribution channels of the local partners.

If you are an inventor new to inventing, you undoubtedly believe you’ve come up with an idea, or two or three, that could really be successful. That eternal optimism and belief in one’s self is precisely what every inventor needs to succeed. Now, if you are like the so many others who have walked in your footsteps before you, you’ve probably started researching how to patent an idea but have quickly become bombarded with information from a variety of sources.  “I have no clue where to start, and I have only a limited budget,” is a typical new inventor question. “What should be my first step?” The patent process can be complex and knowing where to begin and how to approach the process in a cost-responsible manner is not always easy, particularly for first time inventors. Of course, before proceeding it is worth first asking why it is you want a patent? The road to invention riches may, or may not, include obtaining a patent, although at least filing a provisional patent application can be and usually is a wise first step for a variety of reasons.

In November, 2019, amendments to the Customs Code of Ukraine regarding the protection of intellectual property rights when moving goods across the customs border came into force. The principle of international exhaustion of rights was officially introduced into Ukrainian legislation with this Law.

As the year draws to a close, we reflect on what mattered most in the world of intellectual property during 2019.?It was a particularly active year on IP issues, with important events in the courts, Congress, and agencies. Below we have highlighted a few of the most significant activities. Compare our list to yours and let us know what you think!? 

Contemporary AI technology of the kind one has increasingly heard about in recent years is based on machine learning and deep learning methodologies. These use large amounts of computing power to crunch thousands of sample input-output pairs to train adaptable data structure models. Eventually, they are able to produce their own correct outputs when presented with an nth + 1 input. These can be thought of as questions and answers. If an AI model is given, say, 10,000 sample questions with correct answers, it will be able to correctly answer the 10,001st question by itself. Once trained, computing requirements are low. Due to the nature of the methodology, AI is appropriate for situations that involve repetitive decision-making processes. For one thing, many existing examples of correct decisions must be available during the training. Further, after the training phase, a system is applied to similar situations over and over again. Because of this, the application space for AI is sometimes overblown. However, once understood, this limitation usefully directs our attention to instances of decision-making that can be automated or made more efficient using AI. If we consider patent portfolio management in terms of constituent decision-making processes, we might be able to identify which of them are appropriate for the application of AI.

As we explained in Part I of this series yesterday, this December marks the end of a decade as well as 2019. In reflecting on the top 10 patent stories from 2010 to 2019, we acknowledge that there will undoubtedly be disagreements and mentioned yesterday that some big cases, like Mayo v. Prometheus and TC Heartland LLC v. Kraft Foods Group…

According to Merriam-Webster, the “Word of the Year for 2019 is “they” when used in the singular, typically to avoid ascribing a gender to the person being referred to. The larger point is this: language matters. Since this is a space dedicated to secrecy, let’s consider how we use language to determine who gets access to our trade secrets. For today, we’ll be looking specifically at how government does this. After all, they write the laws and so should be practiced at defining exceptions to property rights. Why should the government care at all about business secrets? Examples will help us here. Locally, the fire department needs to know what hazardous chemicals you might be storing at your plant, in case they have to come and put out a fire there. For different but equally compelling reasons, the Food and Drug Administration (FDA) insists on knowing exactly how drugs are made, and the Environmental Protection Agency (EPA) requires submission of pesticide ingredients. And then there is the government as consumer: last year the U.S. spent over $550 billion on purchasing goods and services from the private sector, and with all that economic clout comes the right to demand access to a lot of related data.