01 March

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The Fragile Nature of Trade Secrets: Clues from the Courts on How to Keep Them

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Trade secrets have become an increasingly valuable asset to many companies, but compared to other types of intellectual property, including patents, copyrights and trademarks, they are extremely “fragile,” and require that an owner undertake as many steps as possible to protect their information and be vigilant about the need to protect such information to the fullest extent possible. The failure to do so may lead to a court’s finding in a misappropriation case that the information in question is not protectable as a trade secret. As described below, it is very easy for trade secrets to lose protection under a...

01 March

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Google Wins Mandamus at Federal Circuit in EDTX Venue Dispute

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The Federal Circuit recently granted a petition for a writ of mandamus to Google LLC (“Google”) finding that venue was improper for a case filed by Super Interconnected Technologies LLC (“SIT”) against Google in the Eastern District of Texas. See In re Google LLC, No. 2019-126, 2020 U.S. App. LEXIS 4588 (Fed. Cir. Feb. 13, 2020) (Before Dyk, Wallach, and Taranto, Circuit Judges) (Order for the Court, Dyk, Circuit Judge) (Concurring opinion, Wallach, Circuit Judge). SIT brought suit against Google in the Eastern District of Texas arguing that venue was proper under the patent venue statute (28 U.S.C. § 1400(b)). SIT filed its suit after the...

29 February

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CAFC Orders Settlement Agreement Enforced, Tosses Summary Judgment of Non-Infringement

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Even though a settlement agreement may call for future performance, it generally renders the underlying action moot. The Federal Circuit may enforce a settlement agreement that resolves patent infringement claims as long as the proceedings are still ongoing. The Federal Circuit recently issued an opinion vacating the district court’s grant of summary judgment motions of non-infringement and remanding with instructions to enforce a settlement agreement between Serta Simmons Bedding, LLC and Dreamwell, Ltd. (collectively, “Serta Simmons”) and Casper Sleep Inc. (“Casper”). See Serta Simmons Bedding, LLC v. Casper Sleep Inc., No. 19-1098, 2020 U.S. App. LEXIS 4467 (Fed Cir. Feb. 13, 2020) (Before...

29 February

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Ranking the Top ITC Firms and Attorneys

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With the International Trade Commission (ITC) having become an increasingly important option for patent owners since eBay v. MercExchange made it harder to obtain injunctions in the United States, more firms are becoming ITC specialists. The ITC is a unique and fast-paced venue, so choosing experienced counsel is crucial. Last month, we released our first ITC Intelligence Report. For the first time, we ranked ITC law firms and attorneys based on their performance and activity. Our research team analyzed the outcome of 308 ITC Section 337 Investigations, filed from January 1, 2014, through December 1, 2019. For all the terminated cases, we identified the outcome (e.g.,...

28 February

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With Congress Focused on Copyright, Industry Must Deliver Solutions to the Piracy Problem

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“With respect to digital piracy, the question is whether and to what extent the industry will be able to respond in a cooperative and comprehensive manner to any level that will make a difference, and whether it is already too late.” A recently released report from the Information Technology and Innovation Foundation (ITIF) argues that while there is no easy solution to the ongoing scourge of digital content piracy on the Internet, voluntary agreements between copyright holders and payment processors, advertising networks, domain name registrars, search engines, and other stakeholders can serve as an important complement to legislative and other efforts by governments. “Experience...

20 February

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Oracle Files Opening Brief at U.S. Supreme Court in Copyright Fight with Google

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In the latest stage of the Supreme Court battle between Oracle America, Inc. (Oracle) and Google, Oracle filed its opening brief with the Court on February 12. Google’s petition for a writ of certiorari was granted in November 2019 and asks the Court to consider: “1. Whether copyright protection extends to a software interface” and “2. Whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.” The Court of Appeals for the Federal Circuit (CAFC) previously unanimously reversed a district court decision that held Oracle’s code as uncopyrightable, finding it well-established that...

19 February

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Bayh-Dole 40: Celebrating the Past, Protecting the Future

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“When Bayh-Dole is mentioned in the current political debate it’s misrepresented by alleging that it empowers the bureaucracy to take technologies away from their developers if their price isn’t “reasonable.” Of course, the law says no such thing.” It’s highly appropriate that the 40th anniversary of the Bayh-Dole Act occurs in a year as politically contentious as that in which it passed. In 1980, many predicted that our best years were behind us and that the United States would soon lose its place as the world’s economic superpower. Experts proclaimed the best remedy was to adopt the “Japan, Inc.” model, where...

18 February

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Time to Close the Gap: Is the PTAB Looking at Prosecution Histories in IPRs?

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“The gap between the scope of review required under Phillips and that implemented by the Board plainly does the public a disservice. The public has a right to rely on the prosecution history in order to understand the scope of a patent’s issued claims.” If a recent decision denying institution of an inter partes review (IPR) is any indicator, the answer to the question above seems to be no, the Board does not routinely review a challenged patent’s prosecution history—even when the history includes a prior Board decision construing claim terms at issue in the IPR. In Apple Inc. v. Uniloc 2017 LLC, IPR2019-00753,...

18 February

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Earth to Google: Here’s Why APIs Need to be Copyrightable

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On January 6, 2020, Google submitted its brief in Google v. Oracle, kicking off the Supreme Court case that many are calling the “copyright case of the decade.” The suit pits the search engine platform controlling 93% of the worldwide search market against Oracle, the owner of the ubiquitous Java program, which submitted its response brief last week. After attempting and failing to secure the rights to Java, Google decided to cease negotiating and instead replicated 37 API packages from the copyrighted program, a decision that precipitated the years-long lawsuit. Making Google Hum An API, or application programming interface, is what allows different parts of a computer program...

18 February

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This Week in Washington IP: Balancing Interests in Tech Exports, Predictive Analytics in Criminal Justice and Energy Storage Innovation

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his week in Washington IP events, it’s quiet on Capitol Hill as both the House of Representatives and the Senate enter work periods for the week following Monday’s Presidents’ Day holiday. However, the Center for Strategic & International Studies is hosting a series of events focused on situational awareness technologies for nuclear arms, the recent Privacy Framework from NIST and advances in energy storage technologies across the automotive and electrical grid industries. Elsewhere in DC, the Brookings Institution will explore issues involving the use of predictive AI analytics in the criminal justice system, and the Information Technology and Innovation Foundation...