17 February

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Six Years After Alice: 61.8% of U.S. Patents Issued in 2019 Were ‘Software-Related’—up 21.6% from 2018

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As an update to my posts from 2017 and 2019, it has now been more than six years since the U.S. Supreme Court’s 2014 Alice Corp. v. CLS Bank decision. Still, the IP bar awaits a clear and reliable test to determine when exactly a software (or computer-implemented) claim is patentable versus being simply an abstract idea “free to all men and reserved exclusively to none.” The USPTO’s Section 101 guidelines interpreting Alice—and the accompanying 46 examples—have not cleared the confusion, and Alice continues to distract the USPTO, courts, and practitioners from focusing properly on Sections 102 (novelty) and 103 (obviousness). The net effects still being increased cost, lower patent quality,...

17 February

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New USPTO Trademark Rules Seek to Streamline Filing and Crack Down on Fraud, But Could Increase Spam

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“Spam letters to trademark applicants and registrants have long been a plague of the industry, and the much lower barrier to sending unsolicited email [as a result of the email rule change] likely means this problem will continue.” UPDATE: At the eleventh hour, just before the rule was to take effect, the USPTO issued revised email address requirements to address concerns outlined below from the trademark bar and public about the potential for an influx of unsolicited communications to the trademark owner’s inbox. The revised rule allows applicants represented by counsel to use any email address for the “trademark owner,” so long as...

17 February

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WIPO and U.S. Copyright Office Team Up to Talk Copyright in the Age of AI

Posted by COFFYLAW, LLC

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Earlier this month, the U.S. Copyright Office and the World Intellectual Property Organization (WIPO) held a joint event titled, “Copyright in the Age of Artificial Intelligence” (AI) at the Library of Congress in Washington, DC. The event explored how global copyright law and intellectual property law, as well as broader policy, may currently address AI technology, and included dialogue about changes that may be needed. Panelists also shared how AI is being utilized now and what future technology deployment and innovation may look like. The event was part of a series of conversations organized by the U.S, Copyright Office and WIPO...

16 February

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Why eBay v. MercExchange Should, But Won’t, Be Overruled

Posted by COFFYLAW, LLC

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As anyone who follows the United States Supreme Court knows, the Court has historically been extremely fond of taking important cases with cutting edge issues, only to dodge the real issues and address some insignificant procedural or hyper-technical issue. Such disappointment is all too frequent, so Supreme Court watchers are seldom surprised when the Court passes on an opportunity to breathe clarity into otherwise unsettled waters. But what the Supreme Court did in eBay Inc. v. MercExchange LLC, 547 U.S. 388 (2006) was far more disappointing. In eBay, the Supreme Court decided to throw out longstanding and well-established Federal Circuit jurisprudence and...

15 February

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Identifying the Crucial Qualities of Great IP Managers

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What’s the secret to Intellectual Property Management? After managing hundreds of inventions, I’m going to tell you the essential trait of an excellent IP Manager, and give my four best tips for managing what is often a company’s most valuable asset. The answers might surprise you. IPWatchdog readers know the importance of capturing IP, whether it is patents, trademarks, copyrights, or trade secrets. This article isn’t detailing technical tips for filing patents or how to corner a strategic area of the market; the difference between a good and a great IP Manager is leadership. Capturing IP is one of many responsibilities...

14 February

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Other Barks & Bites for Friday, February 14: Federal Circuit Orders Case Against Google Out of Eastern Texas, DOJ Indicts Huawei on Trade Secrets, and USPTO Faces Backlash Over Email Address Requirement

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This week in Other Barks & Bites: The Federal Circuit issues precedential decisions in patent cases involving data centers as “regular and established place of business,” the Section 315 time-bar for PTAB proceedings and a settlement agreement rendering a summary judgment ruling moot; former Chief Judge Michel asks the Federal Circuit for an en banc rehearing of a panel decision raising the standards for patent owners proving that patent claims are non-obvious because of secondary considerations; the Department of Justice indicts Huawei on trade secret theft and RICO charges; the USPTO hosts job fairs for new patent examiners while the agency also...

13 February

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Senate IP Subcommittee Kicks Off Year-Long Review of Digital Millennium Copyright Act

Posted by COFFYLAW, LLC

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Senator Thom Tillis (R-NC) and Senator Chris Coons (D-DE) this week held the first in a series of eight tentative hearings scheduled for this year on the topic of updating and modernizing the U.S. Digital Millennium Copyright Act. Tillis’ goal is to address changes to the internet since the DMCA was passed in 1998, and by December 2020 to release draft text of a reform bill for stakeholder comment. Senator Coons pointed out that the IP Subcommittee has been the most active subcommittee on the Senate Judiciary Committee, and Tillis said that the process will take place in the same vein as last...

13 February

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Space Force, Star Trek, and Strange New Worlds of Trademark Infringement

Posted by COFFYLAW, LLC

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“Given the overall use of the two marks, the fictional nature of the Starfleet logo, and the lack of intent, one has a hard time believing any court would find infringement.” On January 24, 2020, the United States Space Force logo hit the news — and the photon torpedoes began to fly. Almost instantly, those familiar with the Star Trek Starfleet Command insignia called out a striking similarity, and even George Takei (who played USS Enterprise helmsman Hikaru Sulu) tweeted “Ahem. We are expecting some royalties from this…” Putting aside the actual origin of the Space Force insignia (derived from the Air...

13 February

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Let the Music Play: The Performance Rights License Marketplace Thrives Only with Vigilant Antitrust Enforcement

Posted by COFFYLAW, LLC

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“While online streaming has changed the distribution business for music and videos, the business of licensing public performance rights has remained the same since 1941…. As recently as 2016, a Department review of the ASCAP and BMI consent decrees found that ‘the industry has developed in the context of, and in reliance on, these consent decrees and that they therefore should remain in place.’” On January 26, CBS broadcast the 63rd Annual Grammy Awards, which celebrated America’s finest recording artists and songwriters. Drawing a global audience with performances by super stars such as Aerosmith, Blake Shelton, and Ariana Grande, the event...

12 February

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Medical Innovation Depends on Bayh-Dole’s IP Protections

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“Imposing government price controls on patented products would take the fruits of the Bayh-Dole research and rip them from the hands of the inventors and investors who help transform basic research into desirable goods.” In this age of polarization, it’s almost impossible to imagine Congress enacting bipartisan legislation that would benefit businesses, higher education, and consumers alike. But that is exactly what happened 40 years ago, and it is worth remembering. As has been outlined elsewhere on IPWatchdog in 1980, Democratic Senator Bayh and Republican Senator Dole wrote a bill that seemed simple, but changed the face of American innovation. Prior to the Bayh-Dole...