Posts Tagged: "ip"

With leading-edge, tech-savvy companies in the internet, social networking, and e-retailing space often dominating headlines nationwide, it is easy to overlook the myriad businesses competing in the Fast Moving Consumer Goods (“FMCG”) industry, and to dismiss them as somewhat out-of-touch with the modern consumer. However, FMCG companies have combined revenues nearly on par with those in the more highly-publicized technology-based sectors, and have been thriving in the retail space for decades. IP Rights are critically important in the FMCG industry because businesses operating in this sector rely heavily on brand awareness and brandy loyalty for their success. It makes sense then that IP Rights are pivotal in any FMCG company’s long-term strategy for success.

Justice Scalia never hid the fact that patent law was his “blind spot”. He also admitted to often taking his cues on IP issues from his colleague Justice Ginsberg. On a Court that has not been kind to patent owners these past years, Justice Scalia, who never feared a bit of controversy, was generally considered as a “staunch defender of patent rights” (as long as they were valid) and viewed them, rightly so, as property. On the other hand, he is also the first Supreme Court Justice to refer explicitly to “patent trolls” (in the Commil case), and not in a good way… He also famously called out the Federal Circuit jurisprudence on obviousness as “gobbledygook.” Google it; it is not exactly a compliment!

The popular media’s reports of the demise of IP rights (especially patents) are premature and greatly exaggerated. IP remains valuable to enterprises of all sizes and types. Further, the notion of open innovation, which reflects not only the social nature of man but today’s technological reality, is here to stay. As a result, IP law practitioners will continue to be called draft, review and negotiate collaboration-type agreements where business, engineering and other legal personnel will continue to insist on the “fairness” of joint IP ownership. Such insistence should always be met with skepticism for its need. And, when such joint IP ownership is unavoidable, its consequences and mechanics must be addressed. In sum: If you must do it, don’t half-a$$ it!

It seems the since-kindergarten, ingrained notion of sharing supersedes our B.S., M.S., J.D., Ph.D. and/or M.B.A. training in this respect! Pressures to “get the deal done” by our business and engineering clients, as well as the corporate lawyers who may be supporting the deal and always think it’s a good idea, result in IP law practitioners’ capitulation into drafting joint IP ownership clauses. We should have learned long ago, however, that while splitting the baby (i.e., joint IP ownership in this case) may sound “fair” and give us psychological comfort, in reality it is usually undesirable, unwieldy and perhaps unworkable.

Trade partners negotiating the Tans-Pacific Partnership trade deal have reached an agreement. The agreement details have not been released, and likely will not be submitted to Congress for a mandatory review for at least a month, perhaps longer… Presently the United States provides 12 years of data exclusivity for these types of medicines, but the TPP agreement reportedly knocks that term of protection down to 5 years. While the term of data exclusivity is not one in the same with reducing the term of market exclusivity, there is little doubt that more limited data exclusivity would likely lead to significant negative consequences for the bio-pharma industry.

Critics argue that intellectual property is bad for innovation in part because it allows for “monopolies” that prevent the public from using certain creations without permission for a period of time. As a preliminary matter, the use of the misleading scare-term “monopolies” to describe property rights in inventive and creative labor is clearly an attempt to skew the debate from the outset. After all, you wouldn’t call property rights in hard-copy creations, like the crops a farmer harvested, “monopolies” in those creations. Furthermore, if public access is the concern, a system that fails to provide inventors and creators the economic freedom to create things to market to the public in the first place will be far more harmful than a system that secures justly-earned property rights in inventors’ and artists’ productive labors.

The ownership of ideas and creations are among the most valuable assets to any company. Businesses invest in these ideas and rights and use the value they create to help promote and grow business for years to come. Printer manufacturers, for example, invest heavily in new ink and toner technologies and realize a return over the life of the device through the sale of supplies and consumables. When third-party supplies manufacturers, particularly manufacturers of new build ‘cloned products’, violate IP rights and take products to market, they are effectively stealing from the original equipment manufacturer (OEM) – reducing the ability of the OEM to realize the full potential of their investment and, through their sale, securing financial benefit from the OEM who receives no compensation for this lost revenue. These organizations effectively take a ‘free ride’.

At a minimum, two-factor authentication rather than a single password, should be used to protect most types of confidential data. With two-factor authentication, the user is required to use two of the following three forms of identification – something they know (password or PIN), something they possess (a token or USB stick) or a physical characteristic of the user (finger swipe) in order to gain access to the data. For more sensitive data, a multi-factor approach offers an even higher degree of security. In multi-factor authentication, a user must use three or more forms of identification. For example, in addition to a password and a token, users are required to answer one or more custom questions, known only to the user.

I recently received an inquiry from an IPWatchDog reader, posing several questions about the links between intellectual property protections, innovation and job creation. (Thank you, Marcus!) The interrelated nature of IP, innovation and jobs is essential to economic prosperity and important enough to explore again. Marcus:   I’m curious about two positions that are taken in your writing. First, you state…

The USPTO has also created an increasingly sophisticated cyber security defense system to protect the nation’s patents and related information. In this multi-layered system, the USPTO guards against virtually every possible type of intrusion, protecting their systems against a multitude of potential denizens, from lone wolf to suspected nation-state Advanced Persistent Threat (APT) attackers. Compared to the USPTO, or even corporations, most law firms are easy targets and the client IP on their networks is low hanging fruit that is all too easily harvested. Too many law firms still view ‘reasonable’ security as signature-based (passwords) access and malware protection, like McAfee, as good enough. Today, it is not nearly enough.

Techniques for valuing intellectual property continue to develop, especially as access to information becomes easier and more efficient. The practice of valuing intellectual property has only been around for the past few decades, during which time the practice itself has grown and refined. The decision of which approach to use is generally based on four factors: (i) how unique is the asset; (ii) how much data is available and verifiable; (iii) what is the context, purpose or objective of the analysis; and (iv) the judgment of the analyst which (one would hope) is based on extensive earlier experience. In addition to the traditional methods used to value intellectual property, several alternative methods are available. Some are modifications of the orthodox approaches with which most are familiar, but many other choices exist to value these complex assets.

House Judiciary Committee Chairman Bob Goodlatte (R-VA) will keep copyright high on the Judiciary Committee’s agenda in the 114th Congress. Given that Chairman Goodlatte has already held nearly twenty hearings as part of his copyright review, it is safe to say that the initial hearing stage of the review is coming to a close, although he is expected to hold several additional hearings early this year. The Copyright Office has recommended that Congress should consider providing new and more efficient processes to enable the resolution of small claims. Moreover, senior House Judiciary Committee staff has expressed support for a small copyright claims remedy.

The challenges to the global IP system, however, go much, much deeper than mere debates over so-called patent trolls or patent quality. The very premises of our intellectual property laws — the economic value of the intellectual property system itself — are now in deep dispute, not only in the U.S. but worldwide. Indeed, global anti-IP sentiment seems to be at its highest level since the late 1860s, when opponents of intellectual property rights succeeded — for a time, at least — in abolishing or weakening the patent systems of several nations around the world.

It’s important, particularly for technology companies in fast moving industries, to keep their eyes focused on the future and competing in the marketplace rather than focused on the past and competing in the courtroom, other than in a small number of cases where that focus really is absolutely necessary… When we deal with nonpracticing entities in mediation, we have to take them seriously. They are the parties to the lawsuit. They operate the kinds of businesses that they operate. They take positions and have underlying interests that need to be acknowledged as real and sincere. And the parties opposing the nonpracticing entities have to deal with them straight up and sometimes make some difficult decisions as to whether to settle and how much money to pay.

The first thing we do is we assess the idea. And when we assess the idea we verify that the idea can lead to the creation of intellectual property. Because for me, if that’s not the outcome, then it’s not an idea worth pursuing. The second thing we’re looking for is merit. So we’re checking: is that a good idea? From my experience of 20 years in Silicon Valley, it all really comes down to the connection between the idea and the founder. Some people are trying to sell somebody else’s ideas. That’s not a good idea.