Administrative Agency Intellectual Property Antitrust & Trade Regulation

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Characterization as “Essential Element” Amounts to a Disavowal of Scope

X2Y Attenuators, LLC v. International Trade Commission - Addressing the impact of an alleged disclaimer made in a patent on which asserted patents relied for priority, the U.S. Court of Appeals for the Federal Circuit...more

ITC ALJ Breaks New Ground, Further Heightening the DI Requirement for NPEs in § 337 Cases

According to a recent initial determination by an Administrative Law Judge of the International Trade Commission, a purely revenue-driven NPE cannot prove the existence of a domestic industry by relying solely on the...more

Federal Circuit Finds That FDA Citizen Petition Could Give Rise to Antitrust Liability

In Tyco Healthcare Group LP v. Mutual Pharmaceutical Co., Inc., the Federal Circuit remanded-in-part for the district court to determine whether Tyco’s citizen petition to the FDA gave rise to antitrust liability. Judge...more

ITC Section 337 Update – July 2014

Commission Affirms No Domestic Industry Based On Research And Development In 859 Investigation – On July 21, 2014, the Commission issued a Notice To Affirm In Part, Reverse In Part And Vacate In Part The Final Initial...more

Federal Circuit Says Commission Must Toe the Line in Invisalign ITC Case

In Align Technology, Inc. v. International Trade Commission, the Federal Circuit held that ITC action that violated ITC’s own regulations warranted vacatur under the Administrative Procedures Act. While the case addresses...more

Federal Circuit Makes ITC Comply With Its Own Rules

In an opinion dated July 18, 2014, in Align Technology, Inc. v. International Trade Commission (Fed. Cir. July 18, 2014, No. 2013-1240, -1363) 2014 U.S. App. Lexis 13717, the Federal Circuit vacated and remanded a decision of...more

Advertising Law - July 2014

Online Reviews Not Sufficient To Support Ad Claim, NAD Rules - While recognizing the benefits of using new sources of information, the National Advertising Division (NAD) decided that an advertiser’s use of aggregated...more

Supreme Court's Indefiniteness Ruling Has Immediate Impact at ITC

After a hearing in an Investigation occurred between February 24 and March 7, 2014 and with the parties having submitted their opening post-hearing briefs on March 21, 2014 and their reply post-hearing briefs on March 28,...more

Court Endorses FTC Authority To Require Special Reporting for Pharmaceutical Licenses

A federal court has endorsed the Federal Trade Commission’s authority to adopt regulations under the Hart-Scott-Rodino (HSR) Act that target specific industries. In Pharmaceutical Research and Manufacturers of America v....more

Guest Post: The U.S. Government Continues to Have "Serious Concerns" with Canada's Heightened Patent Utility Requirements

While the United States and Canada share a border, common values and a strong commitment to international trade and security issues, many are surprised to learn that protection of intellectual property (IP) is a source of...more

ITC Affirms Trade Secret Violation Against Chinese Company For Stealing U.S. Rubber Resin Trade Secrets, Imposes 10-Year Import...

The U.S. International Trade Commission has upheld an Administrative Law Judge’s determination that a Chinese company misappropriated its U.S. competitor’s rubber resin trade secrets, and has banned it from importing its...more

October 2013: International Trade Commission Update - ITC Unveils New Pilot Program Aimed at Early Resolution of 337...

The United States International Trade Commission recently unveiled a new pilot program aimed at faster, less expensive resolution of 337 investigations. As part of the pilot program, the Commission “will identify, at...more

Book Review: The Global Limits of Competition Law (Global Competition Law and Economics Series, Stanford University Press)

This European Competition Law Journal article reviews "The Global Limits of Competition Law," edited by Ioannis Lianos and D. Daniel Sokol. It is the first book in the Stanford University Press Series, Global Competition Law...more

ITC Section 337 Update - April 15, 2013

Commission Notice In 874 Investigation Directing Early Determination Whether NPE Complainant Satisfied Domestic Industry Requirement – On March 22, 2013, the Commission issued a Notice instituting Certain Products...more

Justice Department and Patent Office Issue “Policy Statement” Regarding Remedies for Standards-Essential Patents

In a statement likely to be influential with courts, the U.S. Department of Justice (DOJ) and the Patent and Trademark Office (PTO) on January 9 issued a joint Policy Statement urging limitations on remedies for infringement...more

Are the Regulators Coming after the Patent Trolls?

The Federal Trade Commission and the Department of Justice recently held a workshop to discuss the effects of patent assertion entities (PAEs) on innovation and competition....more

FTC and DOJ Explore Role of Patent Assertion Entities in the Patent Innovation Market

On December 10, 2012, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) jointly presented the “Patent Assertion Entities (PAEs) Activities Workshop.” This publicly-held workshop signaled a recognition by...more

FTC/DOJ Workshop Shines Spotlight On Competitive Harms and Benefits of Patent Assertion Entities

On Monday, December 10, 2012, the Federal Trade Commission and the Antitrust Division of the Department of Justice held a joint workshop (Agenda) on the activities of patent assertion entities (“PAEs”). PAEs, sometimes...more

Antitrust Monopolization Considerations in Licensing Cutting-Edge Food Technology Patents

The term pioneer patent is often misapplied with hyperbole and exaggeration. When it comes to the shrimp peeling machine invented by Fernand and James Lapeyre, however, that blockbuster label is spot-on. Their automated...more

China Bulletin - Business, Trade and Competition - October 2012

In This Issue: - China Seeks Comments on Draft Patent Law - China Requests WTO Consultations with United States Regarding PL 112-99, Certain AD/CVD Measures - Taiwan Signs Agreements on Investment Protection...more

Patent Wars: EU’s Top Regulator Takes Front Line Position

Essential Patents, FRAND Licensing and Abuse of Market Power There has been a spate of antitrust complaints to the European Commission and other antitrust authorities of late, regarding the licensing of "essential...more

August 2012: ITC Litigation Update -- Federal Circuit Recants Criticism of Commission’s “No Position” Rule

In an unusual turnabout, the Federal Circuit withdrew six pages of its precedential opinion in General Electric Co. v. International Trade Commission, 670 F.3d 1206 (Fed. Cir. Feb. 29, 2012), which had criticized the...more

ITC's Section 337 Proceedings Pique Congressional Interest

The U.S. House, Senate and even a lone congressman are investigating changes to the U.S. International Trade Commission's (ITC) Section 337 proceedings. The U.S. House Judiciary Committee held a hearing on July 18, 2012,...more

DOJ, FTC Testimony Before Congress Indicates Enforcement Focus on Standard-Essential Patents and Concern over ITC Exclusion Orders

Recent testimony from the U.S. Department of Justice’s Antitrust Division and the Federal Trade Commission (FTC) before the Senate Judiciary Committee focused on issues relating to standard-setting activities and competition...more

In Time for Bikini Season, Kardashians Face Lawsuit Over Endorsement of Diet Aids

Kim Kardashian, the reality star, is accustomed to the public eye, but now she faces a lawsuit that may not bring her good publicity at all. Along with her sisters Khloe and Kourtney, Kim has been named as a defendant earlier...more

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