04 July

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House Subcommittee Discusses Section 101 and Fraudulent Trademarks

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The House subcommittee on intellectual property convened a meeting to oversee the U.S. Patent and Trademark Office. Among two of the most important discussions were Section 101 regarding patent eligibility and registration of fraudulent trademarks. 35 USC 101 establishes who is and is not eligible for a patent under U.S. law. In other words, Section 101 establishes what kinds of innovations are patentable. Under Section 101, in order for an invention to be patentable, it must meet four criteria. Those are: No similar patent has been issued before (one patent per invention); The patented technology must serve some useful function; Patents are reserved for processes, machines,...

26 June

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Supreme Court Says Law Banning Registration of ‘scandalous’ Trademarks Violates First Amendment

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On Monday, June 24, 2019, the U.S. Supreme Court in a 6-3 ruling, struck down a provision of federal law that prohibits the registration of “immoral” or “scandalous” trademarks as a violation of the First Amendment. The ruling, which unanimous in part and 6-3 in part, could open the flood gate to trademark applications seeking to register words or phrases that were considered vulgar, a concern that the court’s minority feared.Justice Elena Kagan wrote the majority opinion stating: “[w]e hold that this provision infringes the First Amendment,” because it “disfavors certain ideas.” ...

13 June

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Who Owns Marilyn Monroe’s Image

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Court have held that Section 43(a) of the Lanham Act entitles celebrities to sue for trademark infringement when others use their persona, without permission, to suggest a false endorsement or affiliation with goods or services. This may seem quite similar to the right of publicity, but there is a salient difference. In order to prevail under the Lanham Act, a celebrity has to prove that the consuming public is likely to be confused and mistakenly believe there is an endorsement or affiliation where none exists. Under the right of publicity, the celebrity must show that the use is unauthorized, but...

09 June

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Small Businesses Lose Millions Every Year in Unclaimed Tax Benefits

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Most small businesses fail to take advantage of various tax benefits available to them, most notably in the area of tax credits. For example, Jane runs a small laundry and dry-cleaner business. She plans on hiring three (3) new employees. The list of potential candidates includes: a supplemental security income (SSI) recipient, an ex-felon and a SNAP (Supplemental Nutrition Assistance) Recipient. She also plans to become more energy efficient by investing in solar power and an electric vehicle. Jane also wishes to offer her employees health insurance benefits. Jane plans to spend $20,000 to develop a software app and $5,000 to...

04 June

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Apple Loses Major Antitrust Lawsuit

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A lawsuit that managed to make it all the way to the SCOTUS (Supreme Court of the United States) involves the Apple App Store and whether or not Apple can be forced to make other distribution avenues available to purchasers of App Store Apps and developers. How Does the App Store Work? For those of us with iPhones, iPads, or iPods, the process is simple. We need something like a game or an app and we go to the Apple App Store, download it, and we have it. For those who create the app, however, it is less simple. Apple charges a...

04 June

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Brain-To-Brain Interfaces Allow Transmission of Thoughts

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For science fiction fans, this may sound like an overplayed trope. However, science fiction has taken the place of prophecy in the collective imagination and, as such, overplayed tropes are becoming realities with alarming regularity. Now, it is possible to communicate directly with another person through the internet just by using your thoughts. While brain-computer interfaces are not new, the technology is improving rapidly. By providing a two-way interface between two humans (or animals) (or a human and an animal) thoughts can be transmitted directly over vast distances. This ushers in new hope for those suffering from paralysis and the potential...

03 April

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First House IP Subcommittee Hearing of 116th Congress Addresses Ways to Increase Female Inventorship

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Today, April 3, the Senate Subcommittee on Intellectual Property held a hearing titled Trailblazers and Lost Einsteins: Women Inventors and the Future of American Innovation—a topic that also was considered last Wednesday by the House Committee on the Judiciary’s Subcommittee on Courts, Intellectual Property, and the Internet in their first hearing of the term. The House hearing was titled, Lost Einsteins: Lack of Diversity in Patent Inventorship and the Impact on America’s Innovation Economy and, like today’s Senate hearing, focused on a recent report on female inventorship released by the U.S. Patent and Trademark Office (USPTO) and featured testimony on how to improve rates of...

03 April

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Inequitable Conduct and Unclean Hands: Is There a Difference and Does It Matter?

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Inequitable conduct remains the most powerful defense to patent infringement. In contrast to other defenses to patent infringement that require a claim-by-claim analysis, the defense of inequitable conduct is global. A finding of inequitable conduct renders the entire patent unenforceable. For this reason, the U.S. Court of Appeals for the Federal Circuit has referred to the defense of inequitable conduct as the “atom bomb of patent law” Aventis Pharma S.A. v. Amphastar Pharmaceutical, Inc., 525 F.3d 1334, 1349 (Fed.Cir.2008). Given the tremendous impact of the inequitable conduct defense, the Federal Circuit, in Therasense, Inc. v. Becton, Dickinson and Co., 649 F. 3d 1276...

03 April

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CAFC: Claim Construction That Misreads Plain Language of Claims and Specification Is Clearly Erroneous

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Alembic and Breckenridge were among a number of drug manufacturers that filed Abbreviated New Drug Applications (ANDA) to market generic versions of Saphris. Saphris is an antipsychotic containing asenapine maleate. Saphris is administered sublingually, meaning under the tongue. Forest sued the ANDA filers for patent infringement. At trial, the district court held that the relevant claims of asserted Patent No. 5,763,476 (“the ’476 patent”) were not invalid as obvious, and that Forest had not established infringement by Alembic or Breckenridge. Alembic and Breckenridge appealed the invalidity determination, and Forest cross-appealed the non-infringement decision as clearly erroneous. On appeal, the Federal Circuit vacated and...

02 April

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Recent Cases Show Federal Circuit Is Concerned About ‘Over Abstracting’ Rejections of Method/ Process Patents

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In one of its latest opinions attempting to parse precedent on the subject matter eligibility of software, method of use, and business method patents that arguably involve application of laws of nature or recitations of well-known, conventional methods and techniques, the U.S. Court of Appeals for the Federal Circuit found that a patent directed to a method for administering a naturally occurring beta amino acid to cause an increase in the concentration of a naturally occurring amino acid combination in muscle and brain tissues was subject matter eligible for patent protection (Natural Alternatives Int’l, Inc. v. Creative Compounds, LLC, No. 18-1295,...