20 January

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Responding to Criticism of ‘State Pharmaceutical Importation Programs Threaten Patients and Innovation

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A recent article by Dr. Kristina M. L. Acri née Lybecker highlighted her research about the fiscal workability of state pharmaceutical importation programs from two aspects: Cost of counterfeit testing of products that have been handled by unregulated entities Because these medicines will be handled by unregulated entities, they need to be subjected to finished product testing using statistical sampling to ensure they’re genuine. The counterfeit pharmaceutical business is well established and has even involved licensed Canadian pharmacies and wholesalers, so no entity in Canada can be trusted, especially since we’ve previously had difficulties extraditing them for trial. Cost of adverse medical events due to...

20 January

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Reflections on Denial of Cert in Athena Diagnostics

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“If the Supreme Court does not function as intended in the Constitution, and has in fact transformed the structure of our government from three co-equal branches of government to two co-equal branches governed by the Supreme Court, what do we do?” I was at the JP Morgan Healthcare Conference when I learned a week ago that the Supreme Court of the United States (SCOTUS) had denied Athena Diagnostic’s Petition for Certiorari. I was shocked. We feel the same when as a child we discover there is no Santa Claus—a trusted institution is not as represented. SCOTUS ignored a recommendation from the U.S....

19 January

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Google v. Oracle: An Expansive Fair Use Defense Deters Investment In Original Content

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Google v. Oracle America, a case pending before the United States Supreme Court, is a seemingly never-ending battle, since 2010, between two Silicon Valley behemoths. But now that battle may finally be nearing its conclusion. On January 7, the first of the amicus briefs were filed, signaling that both sides are marshaling their arguments for one final push toward the finish line. The dispute centers on Oracle’s allegation and multibillion-dollar damage claim that Google’s unauthorized use of Oracle’s Java API (“Application Programming Interface”) package in its Android operating system infringed Oracle’s copyrights under the statute – 17 U.S.C. 107(1). As a result, Oracle has sued Google...

18 January

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How to Help Data Scientists Overcome Their Patent Doubts

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When discussing patentable inventions with data scientists, I often hear them dismiss their inventions under arguments such as these: “We’re using the same tools as everyone else,” “Augmenting data for the training set is well known,” “A similar thing has been done for car-bumper design” (said by the designer of a churro-making machine), “Configuring the neural-network hyperparameters is trivial,” and worst of all, “It’s obvious.” Data scientists often believe that their accomplishments are not patentable, but in-depth exploration of their work often uncovers patentable ideas. I am referring to data scientists that use machine-learning (ML) tools to uncover intrinsic relationships within...

17 January

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Other Barks & Bites, Friday, January 17: IP Provisions in Partial U.S.-China Trade Deal Are a Boon for Pharma, IBM Joins LOT Network, and Alphabet Hits $1 Trillion Market Cap

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This week in Other Barks & Bites: The new China-U.S Trade Deal offers stronger patent dispute mechanism for drug companies; IBM joins LOT Network and tops the list of top U.S. patent recipients for a 27th straight year; the U.S. Supreme Court hears a pair of appeals in trademark cases and seems eager to overturn lower court rulings in both; Federal Circuit Judge Pauline Newman dissents on a pair of precedential decisions issued by the CAFC; tech giant Alphabet is the fourth U.S. tech company to hit a $1 trillion market capitalization; China announces that it received 1.401 million invention...

17 January

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Ninth Circuit Set to Clarify Aesthetic Functionality Doctrine

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A case now pending before the Ninth Circuit, LTTB LLC v. Redbubble, Inc., Docket No. 19-16464, has the potential to clarify the controversial doctrine of aesthetic functionality. Aesthetic functionality has puzzled courts for decades. Particularly before the U.S. Supreme Court issued its modern guidance on functionality in Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844 (1982); TrafFix Devices v. Mktg. Displays, Inc., 532 U.S. 26 (2001), and Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159 (2d Cir. 2009), courts struggled with how to apply the aesthetic functionality doctrine and issued opinions that, in some instances, muddied the already murky aesthetic functionality waters. Perhaps the...

16 January

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WIPO Prepares to Elect New Director General

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There are 10 candidates declared to succeed Francis Gurry as WIPO Director General, when he retires in September this year after serving two six-year terms. One of them will be nominated to be Director General by the WIPO Coordination Committee on March 5 and 6, before being formally appointed by the WIPO General Assembly. The Coordination Committee comprises 83 of WIPO’s 192 member states. Who are the Candidates? The 10 candidates include eight men and two women. There are three candidates from Asia, three from Latin America, two from Africa, and one each from Europe and central Asia. There are no candidates from North America. They are: Prof....

15 January

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Federal Circuit Affirms District Court Decision for CBS in Light of PTAB Invalidation

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Last Friday, the Federal Circuit affirmed a district court decision that found for the CBS Corporation in its defense against infringement and invalidity as to three claims of U.S. Patent No. 8,112,504 owned by Personal Audio, LLC. While the jury initially found for Personal Audio, the Patent Trial and Appeal Board (PTAB) later invalidated the ‘504 patent and the district court ultimately entered final judgment for CBS. The ‘504 patent describes a system for organizing audio files, “by subject matter, into ‘program segments.’ The patent utilizes a “session schedule,” which allows a user to navigate through the schedule by skipping the remainder of a segment,...

15 January

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Privacy Policies and the Value of Data in Bankruptcy Sales

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The last few years have seen unprecedented changes in the legal landscape concerning data protection and privacy. The European Union General Data Protection Regulation (GDPR) became enforceable in May 2018. In July 2018, the California Consumer Privacy Act (CCPA) was enacted, and it became effective January 1, 2020. In response to the GDPR and the CCPA, many businesses are updating their privacy policies to comply with these laws. While crafting these updates, drafters should be cognizant of the effect such policies could have not only in the short term, but also down the road. For example, in the bankruptcy context, the...

14 January

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Lucky Brand Oral Arguments: SCOTUS Likely to Reverse Second Circuit Claim Preclusion Rule

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On the morning of Monday, January 13, the U.S. Supreme Court heard oral arguments in Lucky Brand Dungarees Inc. v. Marcel Fashion Group Inc. The case asks the High Court to decide “whether, when a plaintiff asserts new claims, federal preclusion principles can bar a defendant from raising defenses that were not actually litigated and resolved in any prior case between the parties.” While the case originally involved allegations of trademark infringement, oral arguments indicated that the Justices of the Supreme Court will issue a decision with far-reaching implications on the question of what constitutes a single cause of action. Lucky Brand: The Second Circuit’s...