• Dimensions of a Tour De France Sponsorship

    Recently I attended an inspiring and interesting presentation involving sports sponsorship. Hosted by Price Forbes, Ant Garstang took us through Dimension Data and Qhubeka’s journey to compete and partner in the greatest cycle event on earth, in a two hour talk.
    The Tour de France needs little introduction but perhaps the best way of describing the scale of the TDF event is to borrow the jaw dropping infographic contained in BusinessInsider’s portal: Tour de France, world’s biggest annual sporting event, is an amazing race and breathtaking logistical feat. Click and peek, then read on.
    The presentation was an informal, anecdotal account of what the tour is about that gave one the feeling of being privy to an inside scoop on the drama that is the TDF. And there is drama, from “Cav” being knocked off his bike by Peter Sagan’s now infamous elbow to the logistics of feeding riders an equivalent calorie intake of >40 odd hamburgers a day (and a few pomme frites no doubt) from different local kitchens, as the tour travels. All very interesting indeed, especially the firsthand accounts.
    To the uniformed, Dimension Data are the headline sponsor of a team competing in the TDF. They also provide groundbreaking technical services to the Amaury Sports Organisation (A.S.O) the owners of the TDF enabling the viewer and competitors access to data such as speeds, times and distance, relating to the race and competitors in an unprecedented way, realtime.  Price Forbes are insurers of Dimension Data. Qhubeka is an inspiring charity which gives purpose to the riders and opportunities for sponsors to leverage off the good that they do.
    Apart from the intrigue of the race itself, the human machines that compete in it and the logistical operation that follows the event daily, the presentation to an IP lawyer is equally, if not more fascinating, in other ways. These observations stood out:

    The Philanthropic Message
    There seems no doubt that Dimension Data’s partnership, through Ant, with charity Qhubeka and the Team is attractive. The fact that the companies have African heritage, empower African cycling and Africans must have created a compelling message to the TDF event owners that enabled them to be involved in such an elite event. For this to have made sense, both the company and the charity needed to be world class, innovative and have a track record. Put differently, both the event and the sponsors were able to leverage off the philanthropic and empowerment message which is significantly more compelling than the usual pay-to-play sponsorship package. To understand this point better it is worth reading the Dimension Data websitewhich details their history in cycling and the relationship with the Team and the Qhubeka Charity. A stand out from Qhubeka is that their own message is neither patronizing nor stereotyping of Africa and its people; they identify a problem and explain how bicycles can fix it. In philanthropic terms, this is desirable.
    Senior Executive Engagement
    I have always felt that unless there is board level support in a top level sponsorship deal, it is unlikely to succeed. Sponsorship often simply creates the platform to promote a brand. That platform is created through the event or initiative. However, the ability and desire of the brand itself to use that platform creatively is what differentiates a poor sponsorship from a bad one. In other words, the sponsorship agreement is where the relationship only begins. Dimension Data’s Senior Executive has/had some cycling enthusiasts and clearly supported the decision. This quite obviously galvanized others to innovate around the concept and make a success of the partnership. There are other examples where the board inherits a sponsorship from a previous leadership group, or changes the direction of the company so that it no longer fits with the sponsorship alignment. In those cases the sponsorship will inevitably not deliver.
    Return on Investment
    It is often difficult to know what exactly is achieved through a sponsorship. Yes, the relationship looks and feels good, gives brand exposure but it can be very difficult to measure. Red Bulls F1 sponsorship cleverly positioned their energy drink and the results could be measured in sales, I imagine, quite instantly. For a technology service provider I suspect that the ROI is not as tangible. The same would be the case if a law firm sponsored a golf event. However, discrete measurables are becoming more available and increasingly useful as a gauge of the effectiveness (or not) of a sponsorship. Social media activity, website traffic monitoring, granular viewership information, social return on investment algorithms and increasing access to benchmark norms and information make sponsorship easier to track, assess and ultimately negotiate. In this instance, the fact that Dimension Data are both sponsor and service provider must have also made the ROI more attainable. In addition, the return is not just a measure of sales return but brand positioning and awareness. 
    African companies are no strangers to global sponsorships. The presentation provided a unique insight on what appears to be a very successful and innovative partnership. Thanks to Greg Dillon for the invitation and to Price Forbes for their wonderful hospitality.
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  • Can cake designs result in intellectual property protection?

    Excluding any questions regarding the rare patentability of a cake recipe, cake designs, under certain circumstances, may be protected under the laws of copyright and trademark. Specifically, for copyright, 17 USC 101 provides the relevant definition of a “pictorial, graphic, or sculptural work,” which may include two-dimensional and three-dimensional works relevant to cake designs. For example, if a cake design includes works of artistic craftsmanship insofar as their form but not their…

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  • A Look At The USPTO Patent Eligible Subject Matter Report

    On July 24, 2017, the USPTO issued a 48-page report on Patent Eligible Subject Matter. The report summarizes key court decisions interpreting and applying 35 USC § 101, international views on eligible subject matter, and public comments and recommendations for addressing recent changes in this foundational issue of U.S. patent jurisprudence. While some have criticized the USPTO…… Continue reading this entry

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  • Section 101 as a Shortcut for Other Patentability Requirements

    Guest Post by Saurabh Vishnubhakat, Associate Professor of Law and Associate Professor of Engineering, Texas A&M University.  This post is based on a new paper forthcoming in the Seton Hall Law Review.  Read the draft at https://ssrn.com/abstract=2992807. We tend to think of the different patentability requirements as separate hurdles to be cleared.  To be patentable, […]

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  • DECORATION / DECORATIVE

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    DECORATION / DECORATIVE

    $$ The mat 10 may conveniently be provided in a range of surface decorations in order to suit the preferences of the infant and/or …

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  • CAFC in Personal Audio: a third-party winning challenger at PTAB is not constitutionally excluded from appearing in court to defend the PTAB decision in its favor

    Of the standing issue in Personal Audio (Appeal from the United States
    Patent and Trademark Office, Patent Trial and Appeal Board in
    No. IPR2014-00070):

    We asked the parties to brief the question of whether
    EFF has standing to participate in this appeal, in view of
    the court’s holding in Consumer Watchdog v. Wisconsin
    Alumni Research Foundation, 753 F.3d 1258 (Fed. Cir.
    2014), that a PTAB petitioner that does not meet the
    Article III case-or-controversy requirement does not have
    standing to invoke judicial power, and thus does not have
    standing to appeal to this court from a PTAB decision on
    inter partes reexamination. The court in Consumer
    Watchdog stated that “although Article III standing is not
    necessarily a requirement to appear before an administrative
    agency, once a party seeks review in a federal
    court, ‘the constitutional requirement that it have standing
    kicks in.’” Id. at 1261 (quoting Sierra Club v. E.P.A.,
    292 F.3d 895, 899 (D.C. Cir. 2002)). Thus the court held
    that Consumer Watchdog, a non-profit organization
    described as representing the public interest, did not have
    standing to appeal to the Federal Circuit from the PTAB
    decision that sustained the validity of the patent Consumer
    Watchdog had challenged.

    35 U.S.C. § 141(c) provides the right of appeal to the
    Federal Circuit for “[a] party to an inter partes review or
    a post-grant review who is dissatisfied with the final
    written decision of the Patent Trial and Appeal Board.”
    Consumer Watchdog raises no question as to whether
    EFF has standing to appear in this court to defend the
    judgment of the PTAB, for EFF is not the appellant. The
    Court explained in ASARCO Inc. v. Kadish, 490 U.S. 605
    (1989), in an appeal from the Arizona Supreme Court to
    the United States Supreme Court, that standing to appeal
    is measured for the party “seek[ing] entry to the federal
    courts for the first time in the lawsuit”:

    (…)
    The following year, in U.S. Department of
    Labor v. Triplett, 494 U.S. 715, 732 (1990), Justice Marshall
    explained in concurrence that: “Because respondent
    has not invoked the authority of any federal court, then,
    federal standing principles are simply inapplicable to
    him.”
    Here, the party invoking judicial review is Personal
    Audio; it is apparent that Personal Audio, on cancellation
    of its patent claims by the PTAB, has experienced an
    alteration of “tangible legal rights . . . that is sufficiently
    ‘distinct and palpable’ to confer standing under Article
    III.” Virginia v. Hicks, 539 U.S. 113, 121 (2003) (internal
    citations omitted). With Article III satisfied as to the
    appellant, EFF is not constitutionally excluded from
    appearing in court to defend the PTAB decision in its
    favor.

    After a discussion of the substantive patent issues, the CAFC
    affirmed PTAB:


    We have considered all of Personal Audio’s arguments,
    and affirm the PTAB’s conclusion that the challenged
    claims are anticipated by the Patrick/CBC
    reference, and alternatively that the claims are invalid as
    obvious in view of the Compton/CNN reference.
    CONCLUSION
    The decision of the PTAB, holding claims 31–35 of the
    ’504 Patent unpatentable, is affirmed.

    See also Court says patent troll didn’t invent podcasting

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  • CAFC in Personal Audio: a third-party winning challenger at PTAB is not constitutionally excluded from appearing in court to defend the PTAB decision in its favor

    Of the standing issue in Personal Audio (Appeal from the United States
    Patent and Trademark Office, Patent Trial and Appeal Board in
    No. IPR2014-00070):

    We asked the parties to brief the question of whether
    EFF has standing to participate in this appeal, in view of
    the court’s holding in Consumer Watchdog v. Wisconsin
    Alumni Research Foundation, 753 F.3d 1258 (Fed. Cir.
    2014), that a PTAB petitioner that does not meet the
    Article III case-or-controversy requirement does not have
    standing to invoke judicial power, and thus does not have
    standing to appeal to this court from a PTAB decision on
    inter partes reexamination. The court in Consumer
    Watchdog stated that “although Article III standing is not
    necessarily a requirement to appear before an administrative
    agency, once a party seeks review in a federal
    court, ‘the constitutional requirement that it have standing
    kicks in.’” Id. at 1261 (quoting Sierra Club v. E.P.A.,
    292 F.3d 895, 899 (D.C. Cir. 2002)). Thus the court held
    that Consumer Watchdog, a non-profit organization
    described as representing the public interest, did not have
    standing to appeal to the Federal Circuit from the PTAB
    decision that sustained the validity of the patent Consumer
    Watchdog had challenged.

    35 U.S.C. § 141(c) provides the right of appeal to the
    Federal Circuit for “[a] party to an inter partes review or
    a post-grant review who is dissatisfied with the final
    written decision of the Patent Trial and Appeal Board.”
    Consumer Watchdog raises no question as to whether
    EFF has standing to appear in this court to defend the
    judgment of the PTAB, for EFF is not the appellant. The
    Court explained in ASARCO Inc. v. Kadish, 490 U.S. 605
    (1989), in an appeal from the Arizona Supreme Court to
    the United States Supreme Court, that standing to appeal
    is measured for the party “seek[ing] entry to the federal
    courts for the first time in the lawsuit”:

    (…)
    The following year, in U.S. Department of
    Labor v. Triplett, 494 U.S. 715, 732 (1990), Justice Marshall
    explained in concurrence that: “Because respondent
    has not invoked the authority of any federal court, then,
    federal standing principles are simply inapplicable to
    him.”
    Here, the party invoking judicial review is Personal
    Audio; it is apparent that Personal Audio, on cancellation
    of its patent claims by the PTAB, has experienced an
    alteration of “tangible legal rights . . . that is sufficiently
    ‘distinct and palpable’ to confer standing under Article
    III.” Virginia v. Hicks, 539 U.S. 113, 121 (2003) (internal
    citations omitted). With Article III satisfied as to the
    appellant, EFF is not constitutionally excluded from
    appearing in court to defend the PTAB decision in its
    favor.

    After a discussion of the substantive patent issues, the CAFC
    affirmed PTAB:


    We have considered all of Personal Audio’s arguments,
    and affirm the PTAB’s conclusion that the challenged
    claims are anticipated by the Patrick/CBC
    reference, and alternatively that the claims are invalid as
    obvious in view of the Compton/CNN reference.
    CONCLUSION
    The decision of the PTAB, holding claims 31–35 of the
    ’504 Patent unpatentable, is affirmed.

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  • Non-Profit Organization Appellee Described as Representing the Public Interest Not Excluded from Appearing in Court to Defend a PTAB Decision

    PERSONAL AUDIO v. ELECTRONIC FRONTIER FOUNDATION: August 7, 2017.  Before Newman, Clevenger, and O’Malley   Takeaway: A non-profit organization appellee described as representing the public interest is not excluded from appearing in court to defend a PTAB decision in view of the Consumer Watchdog decision with the appellant satisfying the …

    The post Non-Profit Organization Appellee Described as Representing the Public Interest Not Excluded from Appearing in Court to Defend a PTAB Decision appeared first on CAFC Blog.

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  • Federal Circuit Affirms Specific Intent to Deceive Based on Discovery Misconduct

    Author: Alexander J. Zajac Editor: Lily Robinson In Regeneron Pharmaceuticals, Inc. v. Merus N.V., No. 2016-1346 (Fed. Cir. July 27, 2017), the Federal Circuit affirmed the district court’s decision that the claims of U.S. Patent No. 8,502,018 were unenforceable due to Regeneron’s inequitable conduct during prosecution. The parties agreed that there were four references known to […]

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