14 June

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Has China Finally Embraced Robust Trade Secret Protection?

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“Although China has for some time now shown interest in trade secret reform, this week’s trade secret draft Judicial Interpretation undoubtedly was motivated in part by recent trade negotiations, including the Phase One Agreement. But this most recent pronouncement seems in some respects to go beyond what was required.” It happened to Japan in the 1950s. Then it happened to Taiwan, and then Korea. Rapidly-developing countries started out relying on copying foreign technologies to drive their economies. But as growth increased and investments in education led the way to domestic innovation, each country found that a framework of strong intellectual property...

13 June

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Case Study: Recently Granted Epitope-Based Antibody Patents in the United States, Europe and Japan

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“Patent strategies for antibody medicines should include obtaining an antibody sequence-based patent covering the developed drug, in addition to an epitope-based patent.” Patents involving antibody medicines (antibody patents) are largely grouped into patents specified by antibody amino acid sequences (antibody sequence-based patents) and those not (non-sequence-based patents). Table 1 shows the features of each group. The titled “epitope-based antibody patents” are included in the “non-sequence-based patents”. The epitope is a specific structural unit that resides in an antigen and is recognized by an antibody. Non-sequence-based patents have a broad scope and are thus very useful for protecting antibody medicines. For instance, in...

12 June

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A Comparative Look at Patent Subject Matter Eligibility Standards: China Versus the United States

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“In a number of fields, such as e-commerce, China has arguably become one of the leading innovators in the world. Although the Chinese Patent Law has yet to be amended for the fourth time since it was first enacted in 1984, recent changes have been made to China’s Guidelines for Patent Examination to accommodate the needs of fast-developing new technology.” Over 15 years ago, as a Ph.D./J.D. student, I learned that the U.S. Congress intended patent-eligible subject matter to broadly include “anything under the sun that is made by man” when enacting the 1952 Patent Act, and that two cases, Diamond v....

11 June

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Senator Ron Wyden, Stop Harming Independent Creators

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“Senator Wyden argues that copyright owners might use the system to harass lawful users of copyrighted content, but ample mechanisms exist in the bill to prevent such abuse—including fines, dismissals, and the potential to ban ‘trolls.’” As the current pandemic eviscerates jobs throughout our economy, Congress has a rare opportunity to improve the lot of one long-besieged group of workers: creators. Authors, songwriters, photographers, artists, filmmakers, and many other creative professionals are the lifeblood of American cultural innovation. For decades, however, unfettered copyright infringement online has undermined their livelihoods. The effect is especially pronounced for “creative upstarts”—independent creators who rely on...

13 March

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Other Barks & Bites for Friday, March 13: Federal Circuit, Copyright Office, Ninth Circuit Brace for Coronavirus Concerns; Huawei Tops EU Patent Applicants; Apple Pays VirnetX

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Bites (noun): more meaty news to sink your teeth into. Barks (noun): peripheral noise worth your attention. This week in Other Barks & Bites: Fears over coronavirus tank stocks on Wall Street and trigger changes at the Federal Circuit, the closure of the Library of Congress and the U.S. Copyright Office, as well as move the location of oral arguments in the Ninth Circuit; Apple pays VirnetX after decade-long battle; INTA has had to reschedule its Annual Meeting for November and combine it with the Association’s Leadership Meeting due to the coronavirus; the Senate IP Subcommittee looks at the applicability of the European Union...

13 March

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EPO Applications Up 4%, Led by Digital Communication and Computer Technology, 5.5% Rise in U.S. Applicants

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“U.S. entities also featured prominently in medical technology, accounting for 40% of all patent applications in this sector, pharmaceuticals and biotechnology.” Patent applications filed at the European Patent Office (EPO) rose 4% to 181,406 in 2019, driven by substantial increases from Chinese, Korean and U.S. applicants, according to a report published by the Office yesterday. The United States was the number one country of residence of applicants, with 46,201 applications—a rise of 5.5%. This accounted for 25% of all European patent applications. The U.S. was followed by Germany and Japan. Applications from the People’s Republic of China increased by 29.2% to 12,247 putting the country in...

12 March

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Chrimar Asks Supreme Court to Decide Whether PTAB Can Reverse Final Article III Judgments

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“The time has come to harmonize the Federal Circuit with Supreme Court precedent and the Restatement, unsplit the circuits, restore constitutional validity to our system of parallel track patentability litigation, and eliminate the waste and gamesmanship that current precedent incentivizes.” Earlier this week, Chrimar Systems, Inc. filed a petition for certiorari asking the U.S. Supreme Court to take up a case on appeal from the U.S. Court of Appeals for the Federal Circuit. Chrimar is asking the nation’s highest court to answer the question of whether the Federal Circuit may: 1. apply a finality standard for patent cases that conflicts with the standard...

12 March

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Trademark Modernization Act Would Restore Presumption of Irreparable Harm in Trademark Cases

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“The Act clarifies that for trademark violations, a rebuttable presumption of irreparable harm exists given the consumer protection concerns that would occur otherwise.” Senators Thom Tillis (R-NC) and Chris Coons (D-DE) and Representatives Hank Johnson (D-GA), Doug Collins (R-GA), Martha Roby (R-AL) and Jerry Nadler (D-NY) yesterday introduced legislation to modernize the U.S. trademark system. The Trademark Modernization Act of 2020 is in part a response to the surge in fraudulent trademark filings, largely originating from China, that both the U.S. Patent and Trademark Office (USPTO) and Congress have been grappling with over the last year. Perhaps most notably, in a stated effort to...

12 March

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Mad Dash to Coronavirus Vaccine May Face Legal Hurdles

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“Under the Bayh-Dole Act of 1980, the government can retain ownership rights in some patents for inventions generated by government-funded research…. The particular intellectual property issues raised by the new coronavirus vaccine vary wildly by who, and in what circumstances, the vaccine is developed.” Almost a third of the recently signed $8.3 billion bill to fund the United States response to the coronavirus outbreak is devoted directly to vaccine research and development. And while the realities of drug development and FDA approval mean it is unlikely any vaccine will be available before next year, the government has numerous tools at its...

11 March

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An Inventor’s Guide to Enforcing Patents on a Budget

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“Just because lawyers agree to take your case on contingency does not mean that litigating and enforcing patents costs you nothing out of pocket. There are other litigation expenses that must be accounted for, and it is usually your responsibility to pay for those up front.” Patent litigation and enforcing patents can be cost prohibitive for many individual inventors and smaller businesses. Hourly rates at large firms may be out of reach for those with “not so deep pockets,” and most litigation funding companies either avoid patent litigation altogether or require a case valuation in the tens of millions of dollars....