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...

14 January

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The Supreme Court is More Interested in Being Right Than Shedding Light on 101

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Yesterday was a dark day for patent eligibility in America. The United States Supreme Court denied certiorari in five more petitions relating to patent eligibility challenges. Based on our count, this brings the total number of patent eligibility petitions denied by the Supreme Court to at least 48 since the Court issued its controversial, if not catastrophic, decision in Alice Corporation vs. CLS Bank, 134 S.Ct. 2347 (2014). Obviously, the Supreme Court is perfectly comfortable with the status quo as it pertains to the law of patent eligibility. This reality evokes myriad emotions, ranging from despair to outrage to resentment to cynicism...

14 January

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Latest IFI CLAIMS Report Shows U.S. Patent Grants Are Up 15% Over 2018

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U.S. patent grants grew by 15% from 2018 to 2019, with IBM heading the pack for the 27th consecutive year, according to IFI CLAIMS Patent Services’ 2019 report. There were 333,530 U.S. patents granted last year, compared with 288,832 in 2018, which represented a 3.5% decline from 20I7. IFI said the growth could possibly be attributed to examiner clarity on patent eligibility following the USPTO’s guidance on Alice, as illustrated in IPWatchdog’s article by Kate Gaudry and Samuel Hayim last year. IBM received 9,262 patents in 2019; in 2018 it received 9,100. According to IFI’s press release, nearly half of the patents the company received...

14 January

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A Global Look at Post Grant Patent Maintenance Fees

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A patent maintenance fee is an official fee that is payable at prescribed intervals to a national patent office over the lifecycle of a patent application or a granted patent, in order to keep the patent application or the granted patent in force in that particular jurisdiction. It is payable by an applicant or a patent owner (an assignee or a patentee, as the case may be). Patent maintenance fees are an integral part of the patenting process and may also be referred to as patent annuities, patent annuity fees, patent renewal fees, or patent annual fees. The failure to pay...

13 January

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Views from the Top: IP Leaders Sound Off on Supreme Court’s Refusal to Wade into Patent Eligibility Debate

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To the surprise and sorrow of some, but the relief of others, the Supreme Court earlier today denied certiorari in some key cases on patent eligibility law, putting any hope of further clarity in this realm squarely in the hands of Congress. Many see this as a dereliction of the Court’s duty, while others are just thankful the Court will not cause further harm than it already has. Commenting on the development, IPWatchdog CEO and Founder Gene Quinn tweeted out his view that this was a “bad day for patent eligibility” and that the denial of Athena ultimately “means medical diagnostics are NOT patentable in...