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Past Week’s Daily News™

Tuesday, 16 October, 2018 8:17 am

IP IN THE MASS MEDIA

New Yorker Discusses Waymo’s Trade Secret Suit against Uber

This week’s issue of the New Yorker features an article titled “Did Uber Steal Google’s Trade Secrets,” discussing Google’s Waymo unit’s suit against Uber concerning the alleged misappropriation of trade secrets related to self-driving car technology by former Waymo engineer ANTHONY LEVANDOWSKI,

Univision Claims Dish Network Infringes Trademarks by Advertising Availability to Its Customers Following Expiration of License Agreement

Yesterday the Hollywood Reporter reported on a trademark infringement dispute between Univision and Dish Network related to the expiration of a license agreement allowing Dish to provide Univision to its subscribers. Univision claims Dish continues to advertise that it distributes Univision using Univision trademarks and logos.

Hollywood Reporter Discusses Photographer’s Copyright Suit Against Warhol Estate

Yesterday the Hollywood Reporter reported on a copyright suit filed by photographer LYNN GOLDSMITH against the estate of pop artist ANDY WARHOL concerning Warhol paintings that were based on a 1984 photograph of PRINCE Goldsmith took for Vanity Fair.

Fortnite Developer Files Copyright Suit against Owners of YouTube Channels Who Sell Game Hacks

Yesterday Variety reported that Epic Games sued the owners of two YouTube channels, claiming they their videos to promote game hacks they sell infringe Epic’s copyright in the popular video game Fortnite.

TOMORROW ON IPO’S IP CHAT CHANNEL™: A SURGE TO THE PTAB? FILING AND LITIGATION STRATEGY IN THE LIGHT OF THE UPCOMING CHANGE TO THE PHILLIPS STANDARD

Tune in to the IP Chat Channel™ on Wednesday, 17 October at 2:00p.m. ET to hear three very experienced PTAB litigators – DAVID CAVANAUGH (Wilmer Cutler Pickering Hale and Dorr, LLP), SCOTT MCKEOWN (Ropes & Gray LLP), and MICHAEL SPECHT (Sterne, Kessler, Goldstein & Fox, PLLC) give their views how the move to the Phillips claim construction standard at the PTAB on 13 November is likely to change optimal litigation strategies going forward for both petitioners and patent owners. The issues they will discuss include:

• Will institution rates at the PTAB be changed by the switch to the Phillips standard?
• Will district court judges be less likely to grant stays now that a PTAB claim construction will be more of a true preview of a Markman finding?
• Advantages and disadvantages of delaying an IPR filing.
• The timing of PTAB and district court decisions—and the potential for collateral estoppel.
• The additional complications involved in multi-defendant litigation.

IP Chat Channel™ webinars are recorded and available on our website after the live webinars. CLE granted in many states.




Monday, 15 October, 2018 8:06 am

STROKE OF GENIUS™ PODCAST LAUNCHES TODAY – LISTEN AND SUBSCRIBE!

IPO Education Foundation’s new Stroke of Genius™ podcast is available TODAY on Apple podcasts! The season premiere explores inventions at the intersection of food and convenience, starting with the bread slicing machine, one of the most referenced inventions in American history. The second episode, also available today, discusses how a cultural pioneer used her work in Ophthalmology to break down social barriers and how Thanksgiving leftovers led to a breakthrough for LASIK eye surgery. Discover how these inventions came to be and why they wouldn’t exist without intellectual property protection. Listen now and share with your friends and colleagues! For more information about the podcast, visit IPOEF.org.

* * USPTO PROPERLY RELIED ON NON-PRIOR ART EVIDENCE PROBATIVE OF STATE OF THE ART

Yeda Research and Dev. v. Mylan Pharms. Inc., 17-1594 — On Friday in an opinion by Judge REYNA, the Federal Circuit upheld U.S. Patent and Trademark Office inter partes review decisions that Yeda’s claims for a treatment for relapsing-remitting multiple sclerosis, sold under the brand COPAXONE® 40mg/mL, were obvious. Yeda argued that the USPTO’s reliance on a 2009 study, which did not qualify as statutory prior art because it was published after the patents’ priority date, violated both its due process rights and Patent Act section 311(b).

The Federal Circuit disagreed, finding that “Yeda received proper notice [] and an opportunity to respond,” of which it took advantage by moving to exclude the study, and that section 311(b) did not address whether the Board could rely on non-prior art evidence. “[N]on-prior art evidence of what was known ‘cannot be applied, independently, as teachings separately combinable’ with other prior art, ‘but can be relied on for their proper supporting roles.’” Although the USPTO had “acknowledged that [the study] did not qualify as statutory prior art,” it had properly determined that because it began before the patents’ priority date, it was probative of the state of the art.
(1 to 4 stars rate impact of opinion on patent & trademark law)

* DISTRICT COURT PROPERLY REJECTED CLAIMS AS OBVIOUS

Teva Pharms. USA, Inc. v. Sandoz, Inc., 17-1575 — On Friday in an opinion by Judge REYNA, the Federal Circuit upheld a district court’s finding that Teva’s claims for a treatment for relapsing-remitting multiple sclerosis, sold under the brand COPAXONE® 40mg/mL, were obvious. Teva argued that the USPTO impermissibly relied on “obvious to try” analysis in finding that the injection of 40mg of glatiramer acetate (GA) three times per week would have been obvious to a person of skill in the art.

The Federal Circuit explained that the “obvious to try” analysis was permissible because “the prior art focused on two critical variables, dose size and injection frequency, and provided clear direction as to choices likely to be successful in reducing adverse side effects and increasing patient adherence.” The Court found “no clear error in the conclusion that a [skilled artisan] would be motivated to combine the 40mg GA dose, which had proven efficacy, with a 3x/week frequency, which was desirable because the prior art indicated that less frequent administration increased patient adherence while maintaining efficacy.”
(1 to 4 stars rate impact of opinion on patent & trademark law)

IP IN THE MASS MEDIA

Sig Sauer Accuses Glock of Infringing Breech Block Patent

On Friday Bloomberg reported on a patent infringement dispute between SIG Sauer GmbH and competitor Glock GmbH. Sig Sauer claims that Glock’s new “Generation 5” and “Glock 19X” handguns infringe its patent for a breech block.

Photojournalist Sues on Gilda Radnor Documentary

On Friday Reuters reported that photojournalist HILLARY JOHNSON sued Magnolia Pictures and CNN Films for copyright infringement, claiming that their documentary Love, Gilda used her interviews of comedian GILDA RADNOR without permission.




Friday, 12 October, 2018 8:08 am

SUBSCRIBE TO IPO EDUCATION FOUNDATION’S PODCAST STROKE OF GENIUS

IPO Education Foundation is launching a new podcast! Stroke of Genius, hosted by Historian of Science and Technology reporter LAUREN HUTCHINSON, explores inventions, the inventors behind them, and the role intellectual property plays in dreams becoming reality. Check out the trailer and subscribe now on the Apple Podcasts app. The first two episodes drop on Monday, 15 October!

PRESIDENT TRUMP SIGNS IP LEGISLATION

Yesterday President TRUMP signed into law the Orrin G. Hatch Bob Goodlatte Music Modernization Act. The law creates a compulsory blanket licensing system for music recordings, updates the rate standards applicable to music licensing, provides copyright royalties to pre-1972 artists, and provides compensation to producers, mixers, and sound engineers. More information explaining the new law and upcoming regulatory work is available on the U.S. Copyright Office’s website.

On Wednesday Trump signed two other pieces of IP legislation. The Small Business Innovation Protection Act of 2017 amends the Small Business Act to expand intellectual property education and training for small businesses. The Marrakesh Treaty Implementation Act provides for the implementation of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.

U.S. SENATE PASSES BILL EXTENDING USPTO FEE-SETTING AUTHORITY

Last night the U.S. Senate passed H.R. 6758, the Study of Underrepresented Classes Chasing Engineering and Science Success Act of 2018 (SUCCESS Act), which will extend the USPTO’s fee-setting authority for eight years and require the USPTO to study and make recommendations concerning increasing the participation of women and minorities in innovation. The bill is now on its way to the White House for the President’s signature.

EPO ANNOUNCES NEXT VICE-PRESIDENTS

Yesterday the European Patent Office announced the appointment of three vice presidents who will take office on 1 January 2019. STEPHEN ROWAN will be the Vice-President Directorate-General Patent Granting Process, CHRISTOPH ERNST will serve as the Vice-President Directorate-General Legal and International Affairs, and NELLIE SIMON will be the Vice-President Directorate-General Corporate Services. The appointments are for five year terms and were made by the Administrative Council of the European Patent Organisation.

MANAGE YOUR MEMBERSHIP BENEFITS

Are you using your IPO benefits to their fullest potential? Are you new to IPO? Would you like to get your staff more involved? Join us for a 30-minute IPO membership orientation call. Calls for corporate and small business members are held on the 3rd Tuesday of each month at 2:00p.m. ET. Calls for law firm members are held on the 4th Tuesday of each month at 2:00p.m. ET. Contact Lorna Soderberg for further information or to sign up to participate.

IP IN THE MASS MEDIA

Canada Goose CEO Discusses His Mixed Feelings about Counterfeiting

Yesterday The Fashion Law blog reported on comments made recently by the Canada Goose CEO DANI REISS about his feelings on counterfeits. Reiss said that although he prefers the company’s products “not be ripped off,” counterfeiting “is a backhanded compliment of sorts” because it “suggests amount of brand recognition.”




Thursday, 11 October, 2018 8:14 am

USPTO PUBLISHES FINAL RULE ADOPTING PHILLIPS CLAIM CONSTRUCTION STANDARD FOR POST GRANT PROCEEDINGS

Today the USPTO published a Federal Register notice announcing the final rule to replace the current broadest reasonable interpretation (BRI) claim construction standard for in inter partes review, post grant review, and covered business method patent proceedings with the Phillips standard, which would require the Patent Trial and Appeal Board (PTAB) to construe unexpired and proposed claims “in accordance with the ordinary and customary meaning of such claim as understood by one of ordinary skill in the art and the prosecution history pertaining to the patent.” The rule also specifies that the PTAB will consider prior claim construction determinations made by federal courts or the ITC that are entered into the record timely. In response to comments received on the proposed rule published in May, the USPTO modified the final rule to “apply only to IPR, PGR, and CBM petitions filed on or after the effective date of the final rule, which is Nov. 13, 2018.”

IPO submitted comments supportive of the proposed rule, which is consistent with IPO’s long-held position that the USPTO should construe claims according to the standard used “in a civil action to invalidate a patent under 35 U.S.C. § 282, including construing each claim of the patent in accordance with the ordinary and customary meaning of such claim as understood by one of ordinary skill in the art, the prosecution history pertaining to the patent, and prior judicial determinations and stipulations relating to the patent.”

THE IP PATCH IS NOT JUST FOR GIRL SCOUTS

The IP Patch curriculum is available for all students grades 2-10! Educators, IP professionals, and Girl Scout troop leaders have used the IPO Education Foundation’s free IP Patch curriculum to teach over 2,000 students about intellectual property this year. To learn more about the IP Patch program and how you can get involved in your community or at your organization, visit IPOEF.org or email foundation@ipo.org.

IP IN THE MASS MEDIA

U.S. Charges Suspected Chinese Intelligence Agent for Attempting to Steal Trade Secrets from U.S. Companies

Yesterday NPR reported that the U.S. Department of Justice unsealed charges against an alleged Chinese intelligence agent for attempting to steal trade secrets from U.S. aviation and aerospace companies including GE Aviation.




Wednesday, 10 October, 2018 11:26 am

* * PATENT CLAIMS FOR DIAGNOSTIC TEST WERE DIRECTED TO PATENT-INELIGIBLE SUBJECT MATTER

Roche Molecular Sys., Inc. v. Cepheid, 17-1690 — Yesterday in an opinion by Judge REYNA, the Federal Circuit upheld a district court’s summary judgment that Roche’s claims were directed to ineligible subject matter under Patent Act section 101. The patent claimed a diagnostic test for detecting a type of bacteria that causes tuberculosis. Roche argued that its composition-of-matter claims for primers were directed to artificial, man-made primers that were different from naturally occurring DNA.

The Federal Circuit disagreed, finding that the primers were indistinguishable from their corresponding nucleotide sequences on naturally occurring DNA. Citing In re BRCA1- & BRCA2-Based Hereditary Cancer Test Patent Litig., it explained that, “[i]t is undisputed that the primers before us have the identical nucleotide sequences as naturally occurring DNA, just like the primers found subject matter ineligible in BRCA1.” Judge O’MALLEY concurred, saying, “while I agree with the majority that the broad language of our holding in BRCA1 compels the conclusion that the primer claims in this case are ineligible under 35 U.S.C. § 101, I believe that holding exceeded the confines of the issue raised on appeal and was the result of an underdeveloped record in that case. I believe, accordingly, that we should revisit our conclusion in BRCA1 en banc.”
(1 to 4 stars rate impact of opinion on patent & trademark law)

* * FEDERAL CIRCUIT FINDS CLAIM FOR TABS IN ELECTRONIC WORKSHEET PATENT-ELIGIBLE

Data Engine Techs. LLC v. Google LLC, 17-1135 — Yesterday in an opinion by Judge O’MALLEY, the Federal Circuit overturned a district court’s judgment that DET’s “Tab Patents” were patent-ineligible under Patent Act section 101. The patents claimed systems and methods for providing notebook tabs for organizing complex electronic spreadsheets. Google argued that the claims were “directed to methods of organizing and presenting information.”

The Federal Circuit disagreed, finding that the representative claim was not directed to a patent-ineligible abstract idea under step 1 of the Alice test. Instead, it “recite[d] specific steps detailing the method of navigating through spreadsheet pages within a three-dimensional spreadsheet pages within a three-dimensional spreadsheet environment using notebook tabs” that “solved an existing problem in the prior art.” Although tabs had been used to organize information outside this context, “[t]he eligibility question is not whether anyone has ever used tabs to organize information. That question is reserved for §§ 102 and 103.” The Court upheld judgments that two of DET’s claims were patent-ineligible.
(1 to 4 stars rate impact of opinion on patent & trademark law)

IPO EDUCATION FOUNDATION ANNOUNCES 2018 INVENTOR OF THE YEAR

IPO Education Foundation in pleased to announce that the 45th Inventor of the Year Award will be presented to DAVID HALL, Founder and CEO of Velodyne LiDAR. Mr. Hall is a pioneer in the self-driving auto industry, having invented real-time 3D LiDAR for autonomous vehicles. Join us at the IPO Education Foundation Awards Dinner on 11 December 2018 at the National Building Museum in Washington, D.C. to honor and celebrate him. Tickets and tables are available at IPOEF.org/FAD18.

IP IN THE MASS MEDIA

Study Finds More Than a Third of Consumers Obtain Music Illegally

Yesterday Rolling Stone reported on recently released survey results finding that 38% of consumers obtain music illegally via stream-ripping and other forms of piracy.

SIGN UP FOR AN IPO COMMITTEE TODAY

If you are not already a member of a committee, sign up today to join one of IPO’s Standing IP Committees for the remainder of the 2018-2019 term. IPO’s Standing IP Committees are great for networking and are a valuable educational resource. IPO committees host informal educational meetings featuring outstanding guest speakers as well as occasional informational meetings with the USPTO and other government agencies. These meetings are a great opportunity to pick up best practices and other valuable information from leaders in the IP community. An individual with an IPO member organization can join one committee as a voting member and up to three additional committees as a non-voting member. Apply to join a committee online.