A Confidentiality Agreement, which is also known as non-disclosure agreement or simply as an NDA, is simply a contract between two or more parties where the subject of the agreement is a promise that information conveyed will be maintained in secrecy…..Continue Reading ...
The Federal Circuit decision in the case of CRFD Research v. Matal resolves three appeals involving a single patent: CRFD’s ‘233 patent describing methods and systems that allow a user to begin a session on one communication-enabled device and transfer it to another… Lack of anticipation based on a single reference does not preclude a finding of obviousness based on the same reference. Even if a reference’s is insufficient for anticipation, which is a question of fact, that same reference…
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$$ Moreover, certain functions occur at more than one point in the system, and are not necessarily embodied in distinct physical eleme…
The mood was conciliatory this week at the World Intellectual Property Organization patent law committee as delegates mainly shared experiences and heard presentations. The five topics composing the work of the committee, which had been carefully negotiated in the summer and reflecting a “delicate balance” of interest between countries, will be pursued at the next session. Among them are the topics of patents and health, technology transfer, and the quality of patents.Continue Reading ...
In re Bruneti (Fed. Cir. 2017) The Federal Circuit has ruled that trademark law’s bar against registering immoral or scandalous marks is an unconstitutional restriction of free speech. Thus, on appeal the court has reversed the TTAB’s holding that Bruneti’s mark FUCT is unregistrable.Continue Reading ...
The Senate Judiciary Committee has approved President Trump’s nomination of Andrei Iancu as USPTO Director and Under Secretary of Commerce (unanimous consent). The nomination now moves to the Senate Floor where no roadblocks are expected other than the difficulty in having the Senate focus on any particular item. Iancu was born in 1968 in Bucharest […]Continue Reading ...
A day after Greg Perry resigned as executive director of the Medicines Patent Pool, the pharmaceutical industry announced today that he will join the Geneva-based International Federation of Pharmaceutical Manufacturers and Associations (IFPMA) as an a…Continue Reading ...
A cross-licensing patent agreement is a contract between at least two parties that grants mutual rights to both parties’ intellectual property. The agreement may be a private one between two specific companies or a small consortium of companies. Or it may be a public agreement such as a patent pool, in which IP management is shared amongst a relatively large group of patent holders who share patents. Patent pools are typically industry-based, and companies active in the sector are free to join…
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Earlier today President Trump’s nominee to become the new Under Secretary of Commerce for Intellectual Property and the Director of the United States Patent and Trademark Office was unanimously approved by the Senate Judiciary Committee… Favorably re…Continue Reading ...
The World Intellectual Property Organization provides legislative assistance to countries upon request. This week during the meeting of the Standing Committee on the Law of Patents, the secretariat explained how WIPO provides this legislative assistance. This followed a 2015 proposal to revise WIPO’s 1979 Model Law for developing countries on inventions. The proposal was not accepted by developed countries concerned over the extent of the task, and some pointing out that WIPO is delivering more effective tailored legislative assistance.Continue Reading ...
From the opening:
Erik Brunetti appeals from the decision of the Trademark
Trial and Appeal Board (“Board”) affirming the
examining attorney’s refusal to register the mark FUCT
because it comprises immoral or scandalous matter under
15 U.S.C. § 1052(a) (“§ 2(a)”). We hold substantial evidence
supports the Board’s findings and it did not err
concluding the mark comprises immoral or scandalous
matter. We conclude, however, that § 2(a)’s bar on registering
immoral or scandalous marks is an unconstitutional
restriction of free speech. We therefore reverse the
Board’s holding that Mr. Brunetti’s mark is unregistrable.
Yes, Tam is cited:
When Mr. Brunetti filed his appeal, his constitutional
argument was foreclosed by binding precedent. In
McGinley, our predecessor court held the refusal to register
a mark under § 2(a) does not bar the applicant from
using the mark, and therefore does not implicate the First
Amendment. 660 F.2d at 484. Commentators heavily
criticized McGinley and our continued reliance on it,
particularly in light of the many changes to First
Amendment jurisprudence over the last thirty years. In
re Tam, 808 F.3d 1321, 1333–34 & n.4 (Fed. Cir. 2015) (en
banc). We reconsidered McGinley en banc in Tam, which
held the disparagement provision of § 2(a) unconstitutional
under the First Amendment because it discriminated
on the basis of content, message, and viewpoint. Id.
at 1334–37, 1358. We held that, although trademarks
serve a commercial purpose as source identifiers in the
marketplace, the disparagement provision of § 2(a) related
to the expressive character of marks, not their commercial
purpose. Id. at 1337–39. As either a contentbased
or viewpoint-based regulation of expressive speech,
the disparagement provision was subject to strict scrutiny.
Id. at 1339. It was undisputed that the measure did
not survive such scrutiny. Id.
What the government argued:
The government concedes that § 2(a)’s bar on registering
immoral or scandalous marks is a content-based
restriction on speech. Oral Arg. at 11:57–12:05. And the
government does not assert that the immoral or scandalous
provision survives strict scrutiny review. Instead, the
government contends § 2(a)’s content-based bar on registering
immoral or scandalous marks does not implicate
the First Amendment because trademark registration is
either a government subsidy program or limited public
forum. Gov’t Letter Br. 14, In re Brunetti, No. 15-1109,
Docket No. 60 (Fed. Cir. July 20, 2017); Oral Arg.
at 12:06–21, 18:15–39. Alternatively, the government
argues trademarks are commercial speech implicating
only the intermediate level of scrutiny set forth in Central
Hudson. Gov’t Letter Br. 15, In re Brunetti, No. 15-1109,
Docket No. 60 (Fed. Cir. July 20, 2017); Oral Arg.
at 35:05–17. Under a less exacting degree of scrutiny, the
government argues the immoral or scandalous provision
is an appropriate content-based restriction tailored to
substantial government interests. We consider these
arguments in turn.
Footnote 1 is of interest:
The government maintains that our en banc decision
in Tam is not binding on this panel in light of the
Supreme Court’s decision in Tam. Oral Arg. at 12:23–
13:36, 15:43–54. We question the force of this assertion
because the Supreme Court did not reverse or otherwise
cast doubt on the continuing validity of our government
subsidy analysis and other aspects of our decision in Tam.
See Chen v. Allstate Ins. Co., 819 F.3d 1136, 1138 n.1 (9th
Cir. 2016); Balintulo v. Ford Motor Co., 796 F.3d 160, 166
n.28 (2d Cir. 2015). Because we independently reach the
same conclusion as the en banc court, we need not decide
whether that holding continues to bind future panel
decisions in this circuit.
As to the standard of review:
As in the case of disparaging marks, the
PTO’s rejections under § 2(a)’s bar on immoral or scandalous
marks are necessarily based in the government’s
belief that the rejected mark conveys an expressive message—namely,
a message that is scandalous or offensive
to a substantial composite of the general population. See
Tam, 808 F.3d at 1338. Section 2(a) regulates the expressive
components of speech, not the commercial components
of speech, and as such it should be subject to strict
scrutiny. See Sorrell v. IMS Health Inc., 564 U.S.
552, 565 (2011). There is no dispute that § 2(a)’s bar on
the registration of immoral or scandalous marks is unconstitutional
if strict scrutiny applies.
The Hustler case is cited:
Second, Supreme Court precedent makes clear that
the government’s general interest in protecting the public
from marks it deems “off-putting,” whether to protect the
general public or the government itself, is not a substantial
interest justifying broad suppression of speech. “[T]he
fact that society may find speech offensive is not a sufficient
reason for suppressing it.” Hustler Magazine, Inc. v.
Falwell, 485 U.S. 46, 55 (1988); Bolger v. Youngs Drug
Prods. Corp., 463 U.S. 60, 71 (1983) (“At least where
obscenity is not involved, we have consistently held that
the fact that protected speech may be offensive to some
does not justify its suppression.” (citation omitted));
Cohen v. California, 403 U.S. 15, 21 (1971) (“[T]he mere
presumed presence of unwitting listeners or viewers does
not serve automatically to justify curtailing all speech
capable of giving offense.”); Cox, 379 U.S. at 551
(“[C]onstitutional rights may not be denied simply because
of hostility to their assertion or exercise.”). “Where
the designed benefit of a content-based speech restriction
is to shield the sensibilities of listeners, the general rule is
that the right of expression prevails, even where no less
restrictive alternative exists.” Playboy, 529 U.S. at 813.
The Supreme Court’s decision in Tam supports our
conclusion that the government’s interest in protecting
the public from off-putting marks is an inadequate government
interest for First Amendment purposes.
The George Carlin case was cited:
Finally, the government does not have a substantial
interest in protecting the public from scandalousness and
profanities. The government attempts to justify this
interest by pointing to the Supreme Court’s decision in
FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In
Pacifica, the Supreme Court upheld the constitutionality
of the FCC’s declaratory order determining that an afternoon
radio broadcast of George Carlin’s “Filthy Words”
monologue was indecent and potentially sanctionable. Id.
at 730–32. The Court explained “references to excretory
and sexual material . . . surely lie at the periphery of First
Amendment concern.” Id. at 742. The Court justified the
FCC’s order, however, because radio broadcasting has “a
uniquely pervasive presence in the lives of all Americans”
and is “uniquely accessible to children, even those too
young to read,” confronting Americans “in the privacy of
the home, where the individual’s right to be left alone
plainly outweighs the First Amendment rights of an
intruder.” Id. at 749. The Court stressed: “It is appropriate
to emphasize the narrowness of our holding.” Id. at
The matter of inconsistency arose:
Finally, no matter the government’s interest, it cannot
meet the fourth prong of Central Hudson. The PTO’s
inconsistent application of the immoral or scandalous
provision creates an “uncertainty [that] undermines the
likelihood that the [provision] has been carefully tailored.”
See Reno, 521 U.S. at 871. Nearly identical marks have
been approved by one examining attorney and rejected as
scandalous or immoral by another. The PTO registered
the mark FUGLY for use on clothing, but refused registration
for use on alcoholic beverages. Compare Reg.
No. 5,135,615, with Appl. No. 78,866,347. See also
COCAINE, Appl. No. 78,829,207 (rejected), COCAINE,
Reg. No. 1,340,874 (accepted). The PTO registered NO
BS! BRASS, Reg. No. Reg. No. 5,053,827, for entertainment
services but rejected NO BS ZONE, Appl.
No. 76,626,390, for internet training. NO $#!+, Appl.
No. 85,855,449, was rejected, but $#*! MY DAD SAYS,
Reg. No. 4,142,745, was allowed. See also ROLL TURD,
Appl. No. 86,448,988 (rejected), TURD HERDERS, Reg.
No. 5,180,286 (registered). Although the language in
these marks is offensive, we cannot discern any pattern
indicating when the incorporation of an offensive term
into a mark will serve as a bar to registration and when it
There was an opinion by Judge DYK concurring in the judgment.Continue Reading ...
When infringement claims are legitimate, Take Downs can be a useful mechanism for getting counterfeit or infringing products taken off the online retail platform website. In turn, sellers protect their hard-earned consumer brand confidence. However, no…Continue Reading ...
A lawyer may be adverse to a former client, but not in the same matter in which she represented the client, or in one which is “substantially related” to the representation of the former client. Generally, this requires determining whether it is reasonably likely that in the representation, the lawyer likely learned confidential information that likely can […]Continue Reading ...
After two decades of intellectual property regimes in trade agreements, one could have some second thoughts, according to a number of panellists at the Trade and Sustainable Development Symposium, organised by the International Centre for Trade and Sus…Continue Reading ...
A newly released report by the wide-ranging joint London Declaration initiative to fight neglected tropical diseases shows progress in elimination of diseases and the number of people treated. However, in order to reach universal health coverage, effor…Continue Reading ...
With new social media platforms and photo sharing apps becoming more and more popular, the risk of copyright infringement through the sharing of photos is more present now than ever before. Not to mention, many social media platforms give the ability t…Continue Reading ...
By Andrew Williams — Last June, in Sandoz Inc. v. Amgen Inc., the Supreme Court handed down its interpretation of the Biologics Price Competition and Innovation Act (“BPCIA”) for the approval of biosimilar drugs. As we reported at the time, the Court held that the 180-day notice-of-commercial-marketing provision of the statute may be provided either before or after receiving FDA approval. In addition, with respect to the so-called “Patent Dance,” the Supreme Court held that a reference product sponsor (“RPS”) cannot seek enforcement of the aBLA disclosure provision in 42 U.S.C. § 262(l)(2)(A) by injunction under federal law. This ruling…Continue Reading ...
Since the U.S. Court of Appeals for the Federal Circuit issued its opinion in Arendi S.A.R.L. v. Apple Inc. last August, many patent commentators have asserted that the decision marked a significant change in the analysis of obviousness under 35 U.S.C. § 103, especially as a weakening of single-reference obviousness grounds. Notwithstanding this decision, petitioners and the Patent Trial and Appeal Board have continued to rely on single-reference obviousness to assert and find that claims are obvious, write Amy Simpson and Kyle Canavera.Continue Reading ...
$$ The first step is to agree a common semantic information model. / 第１ステップは共通の意味的情報モデルについて一致を取ることである。(USP8311972)
$$ The reduction current grows with the short circuit current increase in agreement with the microband equation: / 還元電流は、次のマイクロバンド式に一致して短絡電流の増大と共に増大する： (USP8239138)
$$ The centreline of the sinusoidal path 27b is preferably coincident with the centreline of the track 101. / 正弦波経路２７ｂの中心線は、トラック１０１の中心線と一致することが好ましい。(USP8243382)
$$ Preferably, the lateral positioning protrusions (i.e. the abutments) are not coincident with the projections. / 好ましくは、横方向に位置決めする突出部（すなわち当接部）は、突出部と一致しない。(USP8141265)
$$ The second route is selected to coincide with the controlled release of the pre-concentrated agents from the pre-concentrator. / 第２の経路は前濃縮装置からの前濃縮された薬剤の制御された放出と一致するように選択される。(USP7619265)
$$ As soon as the TIFF conformity analysing device rejects one strip, the whole TIFF file is rejected. / ＴＩＦＦ一致解析装置が１つの帯片を拒絶すると、ＴＩＦＦファイル全体が拒絶される。(USP8185954)
$$ The CANbus network nodes may conform to the FMS CANbus standard. / ＣＡＮｂｕｓネットワークノードはＦＭＳ ＣＡＮｂｕｓ規格に一致する。(USP8099207)
$$ If the data does conform it is regenerated by the conformity analysing device. / 一致する場合、データは一致解析装置によって再生される。(USP8185954):
$$ Alternatively or in addition, those edges most consistent with a skeletal model are selected as reference image features. / 代わりに、あるいはそれに加えて、骨格モデルに最も一致するエッジを、基準画像特徴として選択する。(USP8241125)
$$ These discriminators are chosen such that they produce solutions consistent with the initial solution to the initial problem. / これらのディスクリミネータは、該ディスクリミネータが、初期の問題に対する初期の解と一致する解を生じさせるように選ばれる。(USP8121346)
$$ This activity is also consistent with the transformation of Au(III) species to Au(0) caused by calcination. / この活性もまた焼成によって生じるAu(III)類のAu(0)への変換に一致する。(USP8104484)
$$ An area Starget is defined, which corresponds to a template area centred on the new target position. / 新しい目標位置に中心をおいたテンプレート領域に一致する領域Ｓｔａｒｇｅｔが画定される。(USP8121346)
$$ Also the shutter position in FIG. 1B does not correspond to that of FIG. 1A. / また、図１Ｂのシャッタの位置は図１Ａの位置とは一致しない。(USP8225754)
$$ Distal cutout width W11 corresponds to the width of uncoated portion 102u. / 先端カットアウト幅Ｗ１１は、非コーティング部分１０２ｕの幅に一致する。(USP7653492)
$$ First, during manufacturing the fitting of the discrete components requires additional processing steps. / まず、製造している間に、分離した構成要素を一致させることは追加的なステップを要求することになる。(USP6681102)
$$ These features are required only on the line (ring) ports of an ADM, and therefore not all ports on a cross-connect would in future need to be fitted with them. / それらの特徴は、ＡＤＭのライン（リング）のポート上のみにおいて要求される。従って、交差接続上のすべてのポートがその特徴において一致する必要はない。(USP5533005)
$$ In this first stage, illustrated in FIG. 2, the end of the wire 3A is generally in line with axis X and is located within plane XY. / 図２に示されるように、この第１段階において、ワイヤ３Ａの端部が、おおむね軸線Ｘに一致し、ＸＹ平面内に配される。(USP8080016)
$$ It falls to a minimum as it passes through the centre of the source and the axis of the field is in line with the coil. / ロボットが磁気源の中心を通るときに誘導電圧は最小値となり、磁界の軸線がコイルと一致する。(USP6031371)
$$ The kinetic energies of the reagent anions (or reagent gas) and the analyte cations can be closely matched. / 試薬アニオン（または、試薬ガス）および分析種カチオンの運動エネルギーは、極めて一致するようにされ得る。(USP8283626)
$$ This produces a mismatch between the control part’s position and the variator ratio. / この状態は、制御部品の位置とバリエータの比との間に不一致を生じさせる。(USP8282525)
$$ A correlation-like process is used to determine the best match position. / 相関関係のようなプロセスが、最適の一致の位置を決定するために使用される。(USP8121346)
$$ This is achieved by detecting if any existing entries partially match the new request. / これは、任意の既存のエントリが新たな要求と部分的に一致するかを検出することにより達成される。(USP8174978)
$$ The MAVIS-2 project  uses quad trees and a simple grid to obtain spatial matching between image regions. / ＭＡＶＩＳ－２プロジェクト［１９］は、画像領域間の空間一致を得るためにカドツリー(quad trees)及び単純なグリッドを使用する。(USP7593602)
$$ Upon finding a match with a token identity, the electronic file(s) (16) linked thereto are identified. / トークンアイデンティティとの一致を検出すると、それにリンクされた電子ファイル（複数の場合がある）（１６）が識別される。(USP7578441)
$$ The torque spike caused by the engagement is minimised due to the speed synchronisation step. / 係合によって生じるトルクのスパイクは、速度一致ステップによって最小限に抑えられる。(USP8171814): synchronize
$$ As an alternative, measurements may be made at different points with some possibility of discrepancies between measurements. / その代わりに、測定は異なる地点で行ってもよく、このときは測定が一致しない可能性がある。(USP7319673): discrepancy
$$ The inverter has full control of each motor 114 in unison to ensure that the speeds are constantly matched. / インバータは、それぞれのモータ１１４を一斉に完全制御して、速度が常に一致するようにする。(USP7090586): unison
目次はこちらContinue Reading ...
- What is a Confidentiality Agreement and Why are they So Important?
- Federal Circuits invalidates patent covering starting a session on one communication-enabled device and transferring it to another
- CAFC addresses immoral/scandalous marks in Brunetti; 2(a) bar found unconstitutional
- Legal Recourse Options After An IP Infringement Take Down Notice