13 February

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

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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

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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

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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...

12 February

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Innovators Brace for Ninth Circuit Oral Arguments in FTC v. Qualcomm

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“Qualcomm acquired [its] market position through ingenuity and business acumen. The Court held that certain features of Qualcomm’s business model violate the Sherman Act by anti-competitively maintaining those monopolies. That ruling departed from the FTC’s theory at trial and the Department of Justice has condemned it.” – Qualcomm opening brief The U.S. Court of Appeals for the Ninth Circuit is set to hear oral arguments tomorrow in the closely-watched case of FTC v. Qualcomm (N.D. Cal. May 21, 2019), which will review the issue of whether Qualcomm is required to license its standard essential patents (SEPs) to modem-chip suppliers, after the district court determined that...

31 January

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Brexit is Finally Happening: Here’s What to Expect for IP

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“One of the more controversial aspects of the Act is a provision providing that a government minister can (with consultation) provide for certain courts and tribunals not to be bound by EU case law.” The Withdrawal Agreement Act 2020 received Royal Assent on January 23 and was approved by the European Parliament on January 29. That means that the UK will leave the European Union at 11:00 pm GMT on January 31, 2020 and the EU will then have 27 rather than 28 Member States. The UK’s departure from the EU will in due course have a number of implications for intellectual property, in...

30 January

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Users Lament PAIR Changes During USPTO Forum

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“Down the chain you’re finding paralegals and assistants spending hours and hours per day to get basic information about patent applications,” said Chad Gilles of BigPatentData. “Due diligence can now be a four-hour project because Public PAIR is so overloaded.” Jamie Holcombe, Chief Information Officer at the U.S. Patent and Trademark Office (USPTO), seemed surprised to learn on Wednesday that both the Public and Private versions of the USPTO’s Patent Application Information Retrieval (PAIR) System have serious issues that are making workflows untenable for users. Holcombe was participating in a public Forum on the PAIR system, where USPTO staff listened to stakeholders’ experiences since the Office implemented...

30 January

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IP That Works for All’: My Vision for the World Intellectual Property Organization

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Professor Adebambo Adewopo is one of 10 candidates to succeed Francis Gurry as Director General of the World Intellectual Property Organization (WIPO). The WIPO Coordination Committee will nominate one candidate on March 5 and 6, before he or she is formally appointed by the WIPO General Assembly. In the increasingly global environment, our creators, inventors and innovators have continued to lean on the shoulders of the of intellectual property (IP) system as the core of the emergent global knowledge economy and a guarantee for private reward and public welfare. The products of intellect have continued to face opportunities and challenges presented...

30 January

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PTAB Refuses to Apply SAS Institute on Remand as Ordered by Federal Circuit, Federal Circuit Denies Rehearing

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“Judge Newman argued that it was contrary to the America Invents Act, the mandate rule of the Administrative Procedure Act, and the USPTO’s own Office SAS Guidance for the PTAB to disregard the Federal Circuit’s remand order.” The Federal Circuit recently denied a petition by BioDelivery Sciences International, Inc. (BioDelivery) for a rehearing en banc following a refusal by the Patent Trial and Appeal Board (PTAB) to apply the Supreme Court’s decision in SAS Institute Inc. v. Iancu, 138 S. Ct. 1348 (2018). See BioDelivery Scis. Int’l, Inc. v. Aquestive Therapeutics, Inc., Nos. 2019-1643, 2019-1644, 2019-1645, 2020 U.S. App. LEXIS 1030 (Fed. Cir. Jan. 13, 2020) (Before Prost, Chief...

29 January

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Time to Wake Up: Stakeholders Must Compromise to Save the U.S. Patent System

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Things are bad for many innovators and there is little hope for improvement on the foreseeable horizon. Despite the best efforts of Senator Thom Tillis (R-NC) and Senator Chris Coons (D-DE), efforts to reform America’s patent system for the better have stalled to the point that the Senate IP Subcommittee is moving on from patent matters and will focus on copyright reform throughout 2020. “Given the reasonable concerns that have been expressed about the draft as well as the practical realities of the difficulty of passing legislation, absent stakeholder consensus I don’t see a path forward for producing a bill—much less...