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IPWatchdog, Inc IPWatchdog is the leading authority on patents and innovation policy in the U.S. In 2014 we were also inducted into the ABA Blawg Hall of Fame.
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IPWatchdog.com has been online since 1999 and has provided information and news regarding intellectual property to many tens of millions of unique visitors. This page is open to all, but is intended to provide a platform to meet others who are interested in intellectual property topics including patents, copyrights, trademarks, trade secrets, business and the Internet.

With its OLED innovations, Apple is clearly showing its interest in being a major part of the flexible display transitio...
01/26/2019
Apple's Next Move: Flexible Device Display Interfaces

With its OLED innovations, Apple is clearly showing its interest in being a major part of the flexible display transition that will be occurring in the near future. via @ipwatchdog
https://www.ipwatchdog.com/2019/01/26/apple-flexible-device-display-interfaces/id=105607/

The global market revenue for flexible displays increased from $3 billion in 2015 to $8.7 billion in 2018 and by 2022 it is expected to grow to $15.6 billion. With its OLED innovations, Apple is clearly showing interest in being a major part of the flexible device display transition that will occur....

"'Bite' (noun): more meaty news to sink your teeth into. ‘Bark' (noun): peripheral noise worth your attention.” Toda...
01/25/2019
Other Barks & Bites: IP News to Watch, January 25, 2019

"'Bite' (noun): more meaty news to sink your teeth into. ‘Bark' (noun): peripheral noise worth your attention.” Today marks the return of our Other Barks & Bites feature, which will profile a collection of news headlines from around the IP world and across practice areas every Friday. This week, the patent spat between Apple and Qualcomm heats up at the PTAB; China’s intellectual property court at Beijing shows signs of heightened requirements in trademark appeals for foreign entities; and the European Union delays debate on copyright reforms that would affect major tech firms that aggregate news and videos online. [ 1,073 more word ]
http://www.ipwatchdog.com/2019/01/25/other-barks-bites/id=105628/

Today marks the return of our Other Barks & Bites feature, which will profile a collection of news headlines from around the IP world and across practice areas every Friday.

"The most popular way of getting more streamlined resolution is arbitration. A major advantage of arbitration is that it...
01/25/2019
Trade Secrets Disputes: Finding Mutual Interest Despite Disagreement

"The most popular way of getting more streamlined resolution is arbitration. A major advantage of arbitration is that it is completely private. But there are some systemic drawbacks of arbitration for trade secret disputes. I am willing to put the case into any shape you choose. - Lord Ellenborough, 1816 It’s a challenge to resolve business disputes when emotions run high, which includes almost all trade secret cases. [ 899 more words ]
http://www.ipwatchdog.com/2019/01/25/trade-secret-disputes-identifying-mutual-interest/id=105590/

It’s a challenge to resolve business disputes when emotions run high, which includes almost all trade secret cases. So-called “private judging” can be particularly useful in trade secret cases between companies, as confidential information of both sides can be more reliably protected.

In an statement issued late Thursday afternoon, the United States Patent and Trademark Office announced that without a s...
01/24/2019
Without Solution to Shutdown PTO Operations Funded until Mid-February

In an statement issued late Thursday afternoon, the United States Patent and Trademark Office announced that without a solution to the government shutdown the Office will soon run out of money. Despite the government shutdown the USPTO has been functioning as per normal thanks to having access to a specific reserve fund created as part of the America Invents Act (AIA). [ 330 more words ]
https://www.ipwatchdog.com/2019/01/24/without-government-shutdown-solution-pto-patent-operations-funded-mid-february/id=105615/

Based on current estimates and expenditure rates, without a solution to the shutdown PTO patent operations are expected to be funded until at least the second week in February, and trademark operations to last until at least mid-April 2019.

In Part I of my recent interview with IBM, I spoke with Mark Ringes, IBM Vice President and Assistant General Counsel, a...
01/24/2019
IBM: Software Patent Exceptions in a World Where 'Software is Ubiquitous'

In Part I of my recent interview with IBM, I spoke with Mark Ringes, IBM Vice President and Assistant General Counsel, and Manny Schecter, Chief Patent Counsel, about the company’s commitment to innovation and approach to patenting. Our conversation took place at the IBM offices on Madison Avenue in New York City and touched on topics ranging from Section 101 to startups to the USPTO. [ 2,112 more words ]
https://www.ipwatchdog.com/2019/01/24/ibm-software-patent-exceptions-make-no-sense-world-software-ubiquitous/id=105523/

In Part II of my interview with IBM's Mark Ringes and Manny Schecter, we engage in an in-depth discussion of Section 101 law, software patents, and how the Federal Circuit and Supreme Court have contributed to the situation in which we find ourselves today.

“Director Iancu has carefully and logically synthesized the case law on eligibility in the Section 101 Guidance. Congr...
01/24/2019
Judge Paul Michel: Is 2019 the Year Clarity Returns to Section 101?

“Director Iancu has carefully and logically synthesized the case law on eligibility in the Section 101 Guidance. Congress and courts alike would do well to use it as a model.” For almost ten years, U.S. patent law has experienced extraordinary confusion and uncertainty about what types of inventions and discoveries are patent eligible. The U.S. system changed from offering strong protection for novel and nonobvious inventions to questioning whether groundbreaking technologies are even the type the Founders thought would promote the progress of the “Useful Arts.” But recent developments, including the USPTO’s… [ 1,739 more word ]
http://www.ipwatchdog.com/2019/01/24/2019-year-clarity-returns-section-101-judge-paul-michel-hopeful/id=105566/

For almost ten years, U.S. patent law has experienced extraordinary confusion and uncertainty about what types of inventions and discoveries are patent eligible. But recent developments suggest that winds of change may clear the fog and bring back some clarity to U.S. patent law.

"The Zup case presents an excellent vehicle for correcting Federal Circuit rulings and restoring rationality and predict...
01/24/2019
The Supreme Court Should Grant Cert to Correct Obviousness Doctrine

"The Zup case presents an excellent vehicle for correcting Federal Circuit rulings and restoring rationality and predictability to obviousness doctrine." On behalf of nonprofit, U.S. Inventor, Inc., and over a dozen other amici, Flachsbart & Greenspoon, LLC has submitted a Brief of Amici Curiae urging the Supreme Court to grant certiorari from the Federal Circuit’s notoriously error-ridden decision in the waterskiing case: … [ 1,287 more word ]
http://www.ipwatchdog.com/2019/01/23/supreme-court-grant-cert-zup-correct-obviousness-doctrine/id=105549/

On behalf of nonprofit, U.S. Inventor, Inc., and over a dozen other amici, Flachsbart & Greenspoon, LLC has submitted a Brief of Amici Curiae urging the Supreme Court to grant certiorari from the Federal Circuit’s notoriously error-ridden decision in Zup, LLC v. Nash Manufacturing, Inc.

As covered here, yesterday a unanimous Supreme Court ruled that the America Invents Act’s (AIA’s) language barring p...
01/23/2019
Insiders Opinions Mixed in Aftermath of Supreme Court Holding in Helsinn

As covered here, yesterday a unanimous Supreme Court ruled that the America Invents Act’s (AIA’s) language barring patent protection for inventions that were “in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention” under 35 U.S.C. § 102(a)(1) extends to private sales to third parties. The decision upholds pre-AIA Federal Circuit precedent establishing that a “secret sale” could invalidate a patent. [ 2,348 more words ]
https://www.ipwatchdog.com/2019/01/23/industry-insiders-aftermath-supreme-court-helsinn/id=105527/

A unanimous Supreme Court ruled the America Invents Act’s (AIA’s) language barring patent protection for inventions that were in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention under 35 U.S.C. § 102(a)(1) extends to private sal...

"It appears that the pendulum is swinging back in favor of Orange Book patent owners." Number of petitions have dropped ...
01/23/2019
PTAB Trends: More Orange Book Patents Are Surviving the ‘Death Squad’

"It appears that the pendulum is swinging back in favor of Orange Book patent owners." Number of petitions have dropped and institution denials have risen. via @ipwatchdog
https://www.ipwatchdog.com/2019/01/23/ptab-trends-orange-book-patents-surviving-death-squad/id=105450/

Since its inception, the Patent Trial and Appeal Board has been a frequent venue for patent challenges in the pharma and biotech industries. By the end of the USPTO’s 2018 fiscal year, patents in those fields were targeted in nearly 10% of all IPR petitions, totaling approximately 900 individual p...

The infringement judgment entered by the District of Delaware, which is non-appealable, prevents Actavis from being able...
01/23/2019
Orexo Patent for Opioid Dependency Treatment Blocks Actavis' Generic

The infringement judgment entered by the District of Delaware, which is non-appealable, prevents Actavis from being able to commercialize its generic opioid dependency treatment until Orexo’s patent rights expire in September 2032. On Thursday, January 10, U.S. District Judge Colm Connolly of the District of Delaware entered an order and judgment in a patent infringement case brought by Swedish specialty pharmaceutical firm Orexo against global generic pharmaceutical company, Actavis, which was acquired by Teva Pharmaceuticals in 2016. [ 499 more words ]
http://www.ipwatchdog.com/2019/01/23/district-court-upholds-orexo-patent-opioid-dependency-treatment/id=105434/

On January 10, the U.S. District of Delaware held that Actavis’ generic version of Orexo’s opioid dependency treatment infringed an Orexo patent. This non-appealable infringement judgment prevents Actavis from commercializing its generic opioid dependency treatment until Orexo’s patent rights ...

The Supreme Court held today in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc. that a secret sale does qualif...
01/22/2019
Helsinn v. Teva: SCOTUS Says Secret Sale Qualifies as Prior Art

The Supreme Court held today in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc. that a secret sale does qualify as prior art under the AIA, affirming the judgment of the Federal Circuit. via @ipwatchdog by @gqpatent
http://www.ipwatchdog.com/2019/01/22/helsinn-v-teva-secret-sale-prior-art-aia/id=105492/

Earlier today the United States Supreme Court issued its decision in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc. The single question presented was whether so-called secret sales qualify as prior art under the AIA. The Supreme Court held today a secret sale does qualify as prior art und...

"The PTAB did not exceed its statutory authority by addressing a non-instituted ground on reconsideration; in fact, it w...
01/22/2019
Federal Circuit Allows Reconsideration of Non-Instituted Ground in IPR

"The PTAB did not exceed its statutory authority by addressing a non-instituted ground on reconsideration; in fact, it would have violated the statutory scheme for the PTAB not to consider the previously non-instituted ground." The Federal Circuit on January 9 affirmed a Patent Trial and Appeal Board (PTAB) decision finding AC Technologies, S.A.’s U.S. Patent No. 7,904,680 (the ’680 patent) unpatentable in an… [ 584 more words ]
https://www.ipwatchdog.com/2019/01/22/federal-circuit-allows-reconsideration-of-non-instituted-ground-in-ipr/id=105423/

In AC Techs., S.A. v. Amazon.com, Inc. the Federal Circuit found the PTAB did not exceed its statutory authority by addressing a non-instituted ground on reconsideration; in fact, it would have violated the statutory scheme for the PTAB not to consider the previously non-instituted ground.

The filer of a tentatively-approved ANDA with a Paragraph III certification has standing to appeal an IPR decision to th...
01/22/2019
ANDA Paragraph III Certification Filer has Standing to Appeal from PTAB

The filer of a tentatively-approved ANDA with a Paragraph III certification has standing to appeal an IPR decision to the CAFC if the listing of the challenged patent in the Orange Book delays the final approval of the ANDA. The Federal Circuit affirmed a decision of the PTAB holding that claims 1-5 and 21-24 of U.S. Patent No. 6,858,650 to UCB Pharma GmbH (the ’650 patent) were not unpatentable as obvious on January 11. [ 584 more words ]
https://www.ipwatchdog.com/2019/01/22/anda-paragraph-iii-certification-standing-appeal-ptab-finding-ipr/id=105425/

The filer of a tentatively-approved ANDA with a Paragraph III certification has standing to appeal an IPR decision to the CAFC if the listing of the challenged patent in the Orange Book delays the final approval of the ANDA

“What I admire most about Senator Bayh isn't his legislative victories—it's his character.” Hopefully, you've been...
01/22/2019
Happy Birthday, Senator Birch Bayh, Co-Author of the Bayh-Dole Act

“What I admire most about Senator Bayh isn't his legislative victories—it's his character.” Hopefully, you've been fortunate enough—at least once in your life—to work for someone you really admired. That happened to me as a Senate Judiciary Committee staffer for Senator Birch Bayh (D-IN), who gave me the opportunity that changed my life. He turns 91 today. I started at the bottom and gradually worked my way up the staffing ladder. [ 909 more words ]
https://www.ipwatchdog.com/2019/01/22/happy-birthday-senator-birch-bayh/id=105347/

Hopefully, you've been fortunate enough—at least once in your life—to work for someone you really admired. That happened to me as a Senate Judiciary Committee staffer for Senator Birch Bayh (D-IN), who gave me the opportunity that changed my life. He turns 91 today.

"Where the PTAB determines a single reference discloses all limitations of a claimed invention and relies on a second re...
01/21/2019
Federal Circuit: Motivation to Combine Unnecessary Under Section 103

"Where the PTAB determines a single reference discloses all limitations of a claimed invention and relies on a second reference for what is generally known by one of skill in the art, there is no need to make findings regarding a motivation to combine the references." On January 10, the Federal Circuit issued an opinion affirming a decision of the Patent Trial and Appeal Board (PTAB) invalidating several claims of U.S. [ 935 more words ]
https://www.ipwatchdog.com/2019/01/21/motivation-combine-unnecessary-section-103-secondary-reference-not-supply-element-teaching/id=105392/

On January 10, the Federal Circuit issued an opinion affirming a decision of the Patent Trial and Appeal Board invalidating several claims of U.S. Patent No. 6,597,812 as obvious.

Clement argued that Rimini Street’s interpretation of full costs renders both the word full completely superfluous and...
01/20/2019
Supreme Court Weighs Meaning of 'Full Costs' in Rimini Street v. Oracle

Clement argued that Rimini Street’s interpretation of full costs renders both the word full completely superfluous and the first sentence of Section 505 without any meaning. “The better course to say that ‘full’ means full, rather than nothing at all,” Clement argued. On the morning of January 14th, the U.S. Supreme Court heard oral arguments in Rimini Street v. Oracle USA… [ 1,748 more word ]
http://www.ipwatchdog.com/2019/01/20/supreme-court-arguments-meaning-full-costs-copyright-infringement/id=105185/

On January 14, the Supreme Court heard arguments in Rimini Street v. Oracle USA, a case that asks whether the recovery of full costs in a copyright infringement suit is limited to taxable costs or whether non-taxable costs can also be recovered.

Can you sell an idea? The short answer is yes, if you have a good idea and you do it properly. Just don’t expect to be...
01/19/2019
How Can I Sell an dea for Profit? Unlocking the Idea-Invention Dichotomy

Can you sell an idea? The short answer is yes, if you have a good idea and you do it properly. Just don’t expect to be able to rush to the finish line and receive a check before running the race. Responsibly moving from idea to invention to filing a provisional patent application is the recipe to follow. Selling an idea and waiting for lottery-like winnings to arrive at your doorstep seems to be the American dream. [ 1,432 more word ]
http://www.ipwatchdog.com/2019/01/19/can-sell-idea-profit-invention/id=105364/

Can you sell an idea for profit? The short answer is yes, absolutely. But there is a bit of a catch (or problem really). The problem (or catch) has to do with the definition of what qualifies as an idea worth paying for and what qualifies as something too vague to be worth anything.

Nirvana alleges clothing designer Marc Jacobs used the band’s smiley face logo in a misleading way to make it appear t...
01/18/2019
Smells Like Trademark Infringement: Nirvana Sues Over Smiley Face Logo

Nirvana alleges clothing designer Marc Jacobs used the band’s smiley face logo in a misleading way to make it appear that the “Bootleg Redux Grunge” clothing line is endorsed by or somehow associated with Nirvana. via @ipwatchdog
http://www.ipwatchdog.com/2019/01/18/nirvana-sues-smiley-face-logo/id=105250/

On December 28, 2018, the limited liability company representing famed rock band Nirvana sued clothing designer Marc Jacobs and fashion retailers Neiman Marcus and Saks Fifth Avenue for copyright and trademark infringement regarding the use of Nirvana’s smiley face logo on a line of designer cloth...

The Federal Circuit ruled that the doctrine of assignor estoppel does NOT apply to IPR proceedings, based on the plain l...
01/18/2019
Assignor Estoppel: Impact of Arista v. Cisco on Employment Agreements

The Federal Circuit ruled that the doctrine of assignor estoppel does NOT apply to IPR proceedings, based on the plain language of the statute, which states that any person “who is not the owner of a patent” can file an IPR (even though the doctrine would apply if the issue was before the ITC or district court). In a November 9, 2018 decision, the U.S. [ 1,050 more word ]
http://www.ipwatchdog.com/2019/01/18/assignor-estoppel-impact-arista-v-cisco-employment-agreements/id=105222/

The doctrine of assignor estoppel has been around for over a century and most often applied in the U.S. International Trade Commission (ITC) and U.S. district courts to prevent a first party assigning a patent to a second party from then challenging the validity of the patent they had just assigned.

Several weeks ago, the Court of Appeals for the Federal Circuit issued a nonprecedential decision in Glasswall Solutions...
01/18/2019
Conclusory Opinions of Expert Not Enough to Prevent Dismissal

Several weeks ago, the Court of Appeals for the Federal Circuit issued a nonprecedential decision in Glasswall Solutions Limited v. Clearswift Ltd., affirming a district court’s findings that claims from two patents that were asserted in an infringement case filed by Glasswall were directed to unpatentable subject matter under 35 U.S.C. § 101. The Federal Circuit panel of Circuit Judges Alan Lourie, Richard Linn and Richard Taranto found that the Western District of Washington court did not err in determining the challenged claims were invalid under the Alice/Mayo framework, and that dismissal of the case under Federal Rule of Civil Procedure 12(b)(6) was appropriate. [ 602 more words ]
http://www.ipwatchdog.com/2019/01/18/conclusory-legal-opinions-patentees-expert/id=104627/

In Glasswall, the Federal Circuit found that testimony offered by an expert witness didn’t preclude a dismissal on the pleadings as the alleged factual assertions in that testimony weren’t actually factual in nature but, rather, were conclusory legal arguments the district court wasn’t bound t...

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