30 October

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The PPH Program at the USPTO: Favorable Stats Don’t Alleviate Big Risks

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Since 2006, the U.S. Patent and Trademark Office (USPTO) has participated in the Patent Prosecution Highway Pilot Program (the PPH Program). Generally, the program is designed to accelerate examination of a given patent application as a result of examination of a corresponding application at another PPH-participating patent office having reached a positive ruling more quickly. If an application is eligible for and accepted into the PPH Program, the USPTO expedites processing of the application. Examiners also have the benefit of drawing from another examiner’s assessment of corresponding claims. Generally, existing data on the PPH Program has indicated that it is associated...

30 October

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Keeping Up with Copyright Infringement: Copyright, Celebrities, Paparazzi, and Social Media

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Just two months after the end of her second copyright infringement lawsuit, fashion model Jelena Noura “Gigi” Hadid was sued for a third time, on September 13, for copyright infringement for posting paparazzi photos to her social media accounts without the license or permission of the photographer. Other celebrities, including Jennifer Lopez, Victoria Beckham and, most recently, Justin Bieber, have made news for the same situation. This trend falls into an interesting intersection of two significant tenets of law: a celebrity’s right of publicity in their own image and a photographer’s right to copyright their artistic work. Hadid Cases Hadid was first...

29 October

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How Businesses Can Prepare for ITC Exclusion Orders: Section 337 Investigations on the Rise

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Patent investigations at the International Trade Commission (ITC) have been on an upward trend in the last few years. In 2018, the most recent year with complete data, 74 new complaints were filed and there were 130 active investigations, compared to the 117 active investigations in 2017. The trend appears to be continuing in 2019. In today’s global economy, with so many types of products and components being imported into the United States, a rise in patent investigations means that a large number of U.S. companies and their customers are at risk of having their supply chain disrupted. This can result in...

29 October

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Trading Technologies, ChargePoint Ask High Court for Help with Federal Circuit’s Conflicted Approach to Patent Eligibility

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This article was updated on October 30 to clarify certain facts of the case in the opening paragraph. Trading Technologies International, Inc. (TT) has filed a second petition with the U.S. Supreme Court asking it to review a Federal Circuit holding that computer-implemented inventions that do not improve the basic functions of the computer itself are directed to abstract ideas and therefore patent ineligible. The present petition relates to U.S. Patent Nos. 7,685,055 (the “’055 patent”); 7,693,768 (the “’768 patent”); and 7,725,382 (the “’382 patent”). The ‘768 and ‘382 patents are continuations from, share the same specification as, and have claims that closely track the claims of U.S. Patent No. 6,766,304 and U.S. Patent...

29 October

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To Truly Help the USPTO, Congress Must First Stabilize Patent Law

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The United States patent system originated out of the Constitution and has been the world leader since its creation in 1790. Thomas Jefferson reviewed the first patent applications for several years until he quickly realized that the increasing demand of reviewing applications exceeded his abilities. For the next 43 years, patents were granted without any critical examination and left to the courts to determine their validity. The difficult job of examining patent applications began in 1836. The process of evaluating a patent application, studying already known information called prior art and making a judgment of patentability remains essentially the same to...

24 October

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A Response to Claims of Patent Propaganda and a Plea for Interpretive Charity in IP Debate

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The Claim We are Anti-Patent is Patently False Appreciating that Ms. Malone characterizes her piece as “one view” of the above-referenced panel, I wish to offer another, hopefully more complete view of last week’s discussion. For example, one feature of Tuesday’s panel is the panel’s discussion of how high-quality patents are an important, valuable, and in some cases necessary element of the innovation ecosystem. I respectfully disagree with Ms. Malone’s assertion that the panel “concluded that we should abolish patents and begin centrally planning the subsidization of research and development for all innovation, all in the interests of their ‘free market.’” Why...

24 October

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Will Bayh-Dole Survive Its 40th Birthday?

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Next year marks the 40th anniversary of the passage of the Bayh-Dole Act. With election day looming, 2020 is likely to be the most politically contentious year of our lifetime. The country is divided right down the middle on many fundamental issues. Rather than debate, the opposing sides often descend into personal attacks, even questioning one another’s patriotism. This isn’t the time you want issues you care about dragged into the public arena, but patent rights and the Bayh-Dole Act have been summoned into the gladiator pit. Happy birthday, indeed. Invoking Illusory Authority With a Democratically controlled House of Representatives and a...

23 October

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Tillis and Coons Nudge DOJ to Provide Revised Joint Statement on SEPs

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Senators Thom Tillis (R-NC) and Chris Coons (D-DE), Chair and Ranking Member, respectively, of the Senate Judiciary Committee’s Subcommittee on Intellectual Property, sent a letter on October 21 to U.S. Attorney General William Barr and Assistant U.S. Attorney General, Antitrust Division, Makan Delrahim, asking them to “work with the United States Patent and Trademark Office (USPTO) to provide guidance on remedies for infringement of standard-essential patents (SEPs) subject to fair, reasonable and nondiscriminatory (FRAND) licensing commitments.” Balance Needed to Stem a “Growing Divide” Tillis and Coons applauded the Department of Justice (DOJ), Antitrust Division’s decision to withdraw from the 2013 joint DOJ-U.S. Patent and Trademark Office “Policy...

23 October

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PTAB Issues First Motion to Amend Guidance, Samsung Petitions for IPR Granted Despite NuCurrent Issue Preclusion Defense

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The Patent Trial and Appeal Board (PTAB) recently issued its first-ever preliminary guidance on motions to amend claims filed by patent owner Sanofi and, although the substituted claims haven’t escaped an obviousness challenge from Mylan, patent owners might be able to use that guidance as a roadmap for their own motions to amend claims. In other PTAB decisions between October 1 and 16, USAA escaped covered business method (CBM) reviews based on the technological invention exclusion, NHK Spring factors led the PTAB to deny two inter partes reviews (IPRs) petitioned against TRUSTID patents, oral hearings were held in Apple’s IPRs against Qualcomm, despite the...

23 October

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Chamberlain Petitions Full Federal Circuit to Correct Appellate Overstep on Patent Eligibility

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As anticipated, the Chamberlain Group, Inc., in a corrected petition for rehearing filed today, asked an en banc panel of the Federal Circuit to reconsider its August 21 precedential decision, which in part reversed a district court’s finding that certain claims of Chamberlain’s patent for a “moveable barrier operator” (for example, a garage door opener) were not abstract under Section 101. The questions Chamberlain is now asking the Court to address are: Where the district court did not reach Alice step two, or address how the jury’s verdict of novelty and non-obviousness affects the factual aspects of step two, may this Court resolve step two in the first...