16 December

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Eight Tips to Protect Your Trade Secrets with Effective Restrictive Covenant Agreements

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Trade secret theft is often an inside job. Employees who know they’re about to leave for a competitor or start their own competing business will sometimes try and get an unfair head start by taking their employer’s confidential information—customer lists, strategic plans, etc.—as they head out the door. A necessary tool for preventing the misappropriation and use of a company’s valuable trade secrets is a well-crafted employee restrictive covenant agreement. Having employees under at least some form of such an agreement is important for two reasons. First, both state and federal trade secret statutes require employers to take reasonable steps to...

16 December

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Latest IFI CLAIMS Report Shows U.S. Patent Grants Are Up 15% Over 2018

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On November 25, former Director of Homeland Security Michael Chertoff wrote an opinion piece in the Wall Street Journal that chastised the Department of Energy for filing an amicus brief on behalf of Qualcomm in a case that can only be properly described as the ongoing persecution of Qualcomm at the hands of the Federal Trade Commission (FTC). What Chertoff fails to state, however, is that not only has the Department of Energy come out in support of Qualcomm, but so too has the Department of Justice, as well as many others, including former Federal Circuit Chief Judge Paul Michel. Chertoff also conveniently...

15 December

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Five Years Later, the U.S. Patent System is Still Turning Gold to Lead

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Five years after the last of the four decisions in patent eligibility doctrine by the Supreme Court—creating what is now referred to as the Alice-Mayo framework—the impact of this upheaval in the patent system has become even more clear. Ongoing court decisions and new data confirm that the Alice-Mayo framework has wrought an unsettling revolution and sowed uncertainty in what former U.S. Patent and Trademark Office (USPTO) Director David Kappos has referred to as the “the greatest innovation engine the world has ever known.” As policy debates on subject matter eligibility ramped up this past year, it is time to return back to the original dataset...

14 December

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Federal Circuit Reverses PTAB’s Invalidity Decision Regarding a Wireless Communications Patent

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In November, the Federal Circuit issued an opinion reversing the Patent Trial and Appeal Board’s (the PTAB or the Board) decision that claim 8 of IPR Licensing Inc.’s (IPRL) wireless communications patent—U.S. Patent No. 8,380,244 (the ‘244 Patent)—was unpatentable as obvious. The Board’s obviousness finding as to claim 8 was erroneous as it relied on a prior art reference that IPRL could neither anticipate nor rebut. Furthermore, its finding was, for the second time, unsupported by substantial evidence. See In re IPR Licensing, Inc. (Fed Cir. Nov. 22, 2019) (Before Newman, O’Malley, and Taranto, Circuit Judges) (Opinion for the Court, O’Malley, Circuit Judge). The ’244 patent...

13 December

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IBM Inventor Chieko Asakawa Named Inventor of the Year at IPO Education Foundation 2019 Awards Dinner

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Last night at the Smithsonian American Art Museum and National Portrait Gallery, the old home of the original Patent and Trademark Office, the Intellectual Property Owners Education Foundation (IPOEF) held its annual Awards Dinner. The IPOEF Awards Dinner is one of the great industry events; an unapologetic celebration of innovation. Each year, this Awards Dinner recognizes the Inventor of the Year, as well as recognizing an IP Champion, Executive of the Year and youth winners of the IP Video Contest. Manny Schecter, Chief Patent Counsel for IBM and president of the IPOEF, began the awards program segment of the evening by...

13 December

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Other Barks & Bites for Friday, December 13: U.S. and China Move Towards Trade Deal, Register Temple Leaves Copyright Office, and Tillis Sends Letters on Copyright Issues

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This week in Other Barks & Bites: Senator Thom Tillis (R-NC) gets active on copyright matters, signing a trio of letters related to piracy and Copyright Office matters; Karyn Temple leaves her post as Register of Copyrights at the Copyright Office; the Supreme Court decides Peters v. NantKwest, finding that the USPTO can’t recover legal personnel fees in district court proceedings; Facebook shares drop due to a potential Federal Trade Commission injunction against messaging services integration; the Federal Circuit denies a rehearing petition on Capital One’s antitrust claims against Intellectual Ventures; House Democrats allow the USCMA free trade agreement to move towards...

12 December

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Final USMCA Text is a Missed Opportunity for Innovation

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Earlier this week, Speaker of the House of Representatives Nancy Pelosi (D-CA) reached an agreement with President Donald Trump on passage of the United States-Mexico-Canada Agreement (USMCA), which if passed into law would replace the defunct and much maligned North American Free Trade Agreement (NAFTA). In what has become surreal political theater, the House released draft Articles of Impeachment while agreeing to deliver President Trump one of his primary campaign promises. As we near the close of the decade, politics in the nation’s Capitol have become bizarre indeed. Acting on False Assumptions Not everyone is happy about the latest version of the USMCA agreed...

12 December

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Rare Diseases as A Strategic Springboard: Leveraging Orphan Drug Designations and Patent Protection for Increased Investment

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Drug innovators are providing much needed focus on rare diseases and, at the same time, leveraging early-stage rare disease results to facilitate down-stream market entry in broad-spectrum diseases. This paper provides a data-based demonstration of how early- and mid-stage pharmaceutical companies are using the Orphan Drug Program—in combination with pursuing patent portfolio protection—to secure investment and de-risk their platforms, thus lowering the financial barrier for expanding their product pipeline. The Orphan Drug Program—which is available for drugs that treat diseases affecting fewer than 200,000 patients annually in the United States—provides a number of incentives that can lower the barrier for successfully...

12 December

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Finally, the Supreme Court Agrees to Review the Federal Circuit’s Dangerous Decisions in Oracle v. Google

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Good news! The U.S. Supreme Court has finally agreed to review the Federal Circuit’s dangerous decisions in the long-running case of Oracle v. Google. The Supreme Court now has an opportunity to reverse the damage done by the Federal Circuit. The Court can explain why copyrighting Application Programming Interfaces (APIs) is a bad idea and why—even if there is copyright protection—fair use applies. ...

12 December

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Recent USPTO Update Provides Blueprint for PTAB Patent Challenge Process

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Since the passing of the America Invents Act (AIA) and the implementation of the inter partes review (IPR) process, IPR has become a popular and important avenue for companies and individuals to challenge the validity of a patent in an administrative proceeding through the U.S. Patent and Trademark Office (USPTO). In the past five years, patent owners and challengers alike have presented new and sometimes novel challenges to the way the Patent Trial and Appeal Board (PTAB), comprised of a panel of administrative law judges that review and decide cases, conduct trial proceedings, causing the PTAB to reevaluate and tweak the process...

December 2019