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When Is Trade Secret Protection the Right Choice?

Companies rely on intellectual property (“IP”) rights to protect their valuable information, creations, and branding. IP rights come in several forms: copyrights, trademarks, patents, and trade secrets. As the U.S....more

Don’t Ask Judges to Be Archaeologists

In response to Google L.L.C.’s (“Google”) and other’s petitions for inter partes review (“I.P.R.”) of two patents owned by Parus Holdings, Inc. (“Parus”), the Patent Trial and Appeal Board (“PTAB”) of the United States Patent...more

Attorney Fees Denied Due to Lack of Support in Cannabis Litigation Record

In 2018, United Cannabis Corporation (“UCANN”) sued Pure Hemp Collective (“Pure Hemp”) for infringement of U.S. Patent No. 9,730,911 (the “‘911 patent”), entitled “Cannabis Extracts and Methods of Preparing and Using the...more

USPTO Patent Fees Reduced for Small Businesses

The United States Patent and Trademark Office (“USPTO”) has reduced the patent fees for small businesses and certain other applicants. This fee reduction is part of an effort to reduce financial burdens and resulting barriers...more

Delaware Judge Seeks to Expose Patent-Litigation Funders

Do defendants and the court have the right to ask who is funding a particular patent litigation? Chief Judge Connolly in Delaware says they do, and in In re Nimitz, the Federal Circuit denied a request to stop the judge’s...more

AI Systems May Invent, But Are They Inventors?

Previously, the Court of Appeals for the Federal Circuit (“Federal Circuit”) has found that a non-human may infringe patents. Arguably, an AI system, which is a non-human, can also create or invent. But can an AI system be a...more

Be Careful Not to Unintentionally Bargain Away the Right to File IPRs

When entering into contracts, parties commonly include forum selection clauses to govern future litigation between the parties. When doing so, parties need to actively consider whether they intend that forum selection clause...more

Preliminary Injunction Upheld in Trade Secret Dispute Despite Prior Publication

Publication of an algorithm prevents the algorithm from being a trade secret, right? Not necessarily. The Federal Circuit just reminded us that under certain circumstances that may not be the case. ...more

USPTO Requests Input On Patent Eligibility From Critical Sectors Impacted By Current Law

In recent years, the Supreme Court has decided a number of cases, including Bilski v. Kappos, Mayo Collaborative Servs. v. Prometheus Labs., Ass’n for Molecular Pathology v. Myriad, and Alice Corp. v. CLS Bank Int’l, which...more

No Right To Appeal Even When IPR Institution Denied On Non-Substantive Grounds

One way to challenge the validity of a patent at the United States Patent and Trademark Office (“USPTO”) is through a petition for inter partes review (“IPR”). The USPTO Director has delegated responsibility to the Patent...more

No Judicial Estoppel In The Case Of The On-Again, Off-Again Patent Inventor

The case of Egenera, Inc. v. Cisco Systems, Inc. raised the question of whether inventors named on a patent can be repeatedly changed as litigation strategy changes. Because of judicial estoppel, the district court said no...more

Online Gaming Case Addresses Trigger For One-Year IPR Filing Deadline

When sued for patent infringement, a defendant can still petition for inter partes review (“IPR”) of the asserted patent at the United States Patent and Trademark Office (“USPTO”) if the petition is filed within one year of...more

Rule Change Requires U.S. Counsel For Foreign-Domiciled Trademark Applicants

The United States Patent and Trademark Office (the “USPTO”) explains that- “A trademark is a brand name. A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used...more

Some At The PTAB Think Textbooks Are Not Printed Publications

Shockingly, some at the Patent Trial and Appeal Board (“PTAB”) think textbook publishers who include dated copyright notices don’t actually publish the textbooks that year! Further, would you have imagined an argument that...more

Are Patent Applicants Required To Pay USTPO Attorneys’ Salaries, Win Or Lose?

The United States Supreme Court granted a writ of certiorari in Iancu v. NantKwest to determine whether a patent applicant, win or lose, must pay the salaries of the United States Patent and Trademark Office’s (“USPTO”)...more

USPTO Proposes Change In Claim Construction Standard For PTAB Proceedings Under The AIA

Currently, the standard for claim construction is different in AIA reviews before the United States Patent and Trademark Office’s (“USPTO”) Patent Trial and Appeal Board (“PTAB) than in proceedings in federal district courts...more

USPTO Finalizes Rule For Privileged Communications In Trials Before The PTAB

The Leahy-Smith America Invents Act (“AIA”) provided for trials before the Patent Trial and Appeal Board (“PTAB”) of the United States Patent and Trademark Office (“USPTO”) in inter partes reviews, post-grant reviews, the...more

Offensive Trademarks Are Protected Free Speech Under The First Amendment

Simon Tam is the lead singer of the rock group call “The Slants’, which is composed of Asian-Americans. Tam applied for federal trademark registration of the band’s name. While the term “slants” is a derogatory term for...more

Are the Tides Turning for Motions to Amend Claims in IPR Proceedings?

The Patent Trial and Appeal Board (“PTAB”) has rarely allowed patent owners to replace or modify claims during inter partes review (“IPR”), covered business method review, or post-grant review. In fact, in April 2016 the...more

Federal Circuit Requires Standing to Appeal PTAB’s Final Decisions

Although arguably foreshadowed, some may be surprised to learn that a party with the right to challenge the validity of a patent at the United States Patent and Trademark Office (“USPTO”) may not have the right to appeal an...more

Is the Technology for Self-Driving Cars Patent-Eligible?

It sounds like a silly question, doesn’t it? After all, self-driving cars represent innovative progress in technology, and patents are intended “to promote the progress of science and useful arts, by securing for limited...more

The Supreme Court Rules the PTAB and District Courts Can Continue to Apply Different Standards for Interpreting Patent Claims

Patent litigators and prosecutors have been waiting to hear whether the U.S. Supreme Court would require the United States Patent and Trademark Office (“USPTO”) to apply the same claim construction standard as the district...more

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