• The Trademark Management Process: Getting it Right in Challenging Times

    The trademark landscape is evolving rapidly, with both brand owners and trademark professionals trying to keep up. The changes are mostly driven by the steep rise in trademark applications — there was a 13.7% increase in trademark filing activity in 2015, according to WIPO — and shrinking budgets as all involved are tasked with doing more with the same or fewer resources. Trademark professionals and brands alike need to be consistent in the way they approach search and make use of the same…

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  • Secured Mail Solutions LLC v. Universal Wilde, Inc. (Fed. Cir. 2017)

    Patents Directed to Mail Barcodes Found to be Directed to Ineligible Subject Matter By Joseph Herndon — Secured Mail Solutions LLC appealed from the U.S. District Court for the Central District of California’s grant of a motion to dismiss on grounds that the claims of seven asserted patents are directed to subject matter ineligible for patenting under 35 U.S.C. § 101. The Federal Circuit analyzed the claims under the two-step procedure set forth by the Supreme Court in Alice, and found that because the claims of the asserted patents are directed to an abstract idea and the claims contain no…

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  • Reflections on the Crammer(TM)

    The Glove Initiative
    Yesterday I MCed the annual Adams & Adams Crammer event. This event aims to digest a year’s worth of IP and commercial legal developments into a single morning through a series of short sharp presentations. It was held at the Radisson in Sandton, part of Africa’s richest business square mile. Almost 200 people attended the event, including Afro-IP.
    This event showcases a number of the Adams & Adams lawyer’s expertise in their respective fields as well as select key note speakers as they bid to keep things short, to the point and relevant. As Mark Twain said “I did not have time to write you a short letter, so I wrote you a long one instead” rings true for punchy presentations, requiring significantly more work to get right. 
    I will leave my colleague to write more about the content of this event in a later post. I just wanted to highlight two aspects. 
    Michael Charton’s My Father’s Coat, and the need to be responsible

    Guest speaker and renown storyteller Michael Charton provided a moving rendition of his very popular story on the history of South Africa through the eyes of five great men. It is a story so relevant for contemporary South Africa, encapsulating the trauma of our past in an inspiring insight of what unites and divides our country. It brought many to tears and I was speechless at the end, which is not what you want if you are the MC!
    The relevance of the talk to IP was what I wanted to reflect on. Yes, the idea of digesting South Africa’s rich tapestry of cultures and history into a short talk is a fit for a Crammer event but it is also the responsibility that comes from monopoly power that is evident throughout, not unlike responsibility in an IP right.
    Michael draws on stories about Rhodes’ dream of extending British power from Cape to Cairo (in a map that looked quite similar to an ARIPO registration), the VOC (which he described as arguably the world’s first commercial brand), and Smuts’ remarkable international stature and unique respect for his rival Ghandi to convey his tale of sometimes noble intentions that often lead to untold misery and suffering. 
    These few stories (and there were more) illustrate that with power and control comes great responsibility. This is no different from say, having a patent over a life saving drug or a trade mark right and knowledge of counterfeiting that involves drug smuggling or dangerous spare parts, or a firm that has market share and the power to employ, yet has a culture of discrimination or poor corporate governance. As Michael’s tale so aptly reflects – history will judge you, not on your bottom line or material wealth but your ability to be to be responsible. You may not realise that when you register or audit your IP. 
    The Glove Initiative(TM) 
    George Scola also attended the event yesterday. George was a national basketball player and is a genuine all round nice guy. He lead a normal, if not enviable, life until one day in his 30s he was struck down with a stroke. The moment he became disabled is encapsulated by him in this clip here. Today he spends his life dedicated to promoting awareness of stroke. He founded South Africa’s Stoke Survivor Foundation and is a Director of World Stroke Organisation.
    Despite these grand titles, his noble cause and his warm personality, George has significant challenges. He is still suffering from his disability which creates a real challenge to getting around, concentrating for long periods and pursuing the cause. Coupled with that he has an annual budget that does not even reach R40k (less than $3000) and he is competing with causes in South Africa, like Aids, TB and others that get far more awareness, in a society where none of them get enough.
    October is stroke awareness month and George has come up with The Glove Initiative to promote his work. This involves placing a turquoise medical glove on one’s hand as a reminder not to use it, for a period of time. It will give the person some idea of what it is like to suffer the effects of a debilitating stroke. As those at the Crammer event will have understood; just trying to pin a name badge with one hand is well nigh, impossible. 
    “There is urgent need for a campaign like this,” notes George Scola, “as so many misconceptions surround stroke. Some communities still believe stroke is evidence of witchcraft. Others wrongly believe women are immune.” “Awareness is low and information sparse. This must change.”
    I would like to encourage everyone to support this initiative. You can do so by simply following  them on twitter @strokesurvivors or the Facebook page https://web.facebook.com/strokesurvivors/. Pick up a glove, that is all you need to do but if you want to donate, that would really be appreciated.
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  • POST



    $$ At the rear end the floor 40 has a cut out to accommodate a pivot post 46 upstanding from the lower casing 14. / 下方ケーシン…

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  • Plaintff LUFTHANSA TECHNIK AG loses at CAFC on indefiniteness issue

    Proceduraly, the district court was affirmed on an alternative ground:

    Lufthansa Technik AG appeals from the district
    court’s grant of summary judgment of invalidity with
    respect to all claims of U.S. Patent 6,016,016. Because we
    conclude that the claim term “control means” is indefinite,
    we affirm on that alternative ground.

    Of note:

    By contrast, reciting a generic term for an electronic
    component is insufficient if an ordinary artisan would not
    associate the claimed component with a specific, wellknown
    structure. Ergo Licensing, 673 F.3d at 1365. In
    Ergo Licensing, the patent claimed a “programmable
    control means having data fields describing metering
    properties of individual fluid flows.” Id. at 1363. The
    patent disclosed a “control device” as the corresponding
    structure, without any additional details about its design
    or circuitry. Id. Importantly, the control device in Ergo
    Licensing could have been one of “at least three different
    types of control devices commonly available and used at
    the time to control adjusting means.” Id. at 1364. We
    held that “[t]he recitation of ‘control device’ provides no
    more structure than the term ‘control means’ itself, rather
    it merely replaces the word ‘means’ with the generic term
    ‘device.’” Id. at 1363–64. Thus, an ordinary artisan
    would not associate the “control device” with a specific
    electronic component. Id.

    Here, every claim of the ’016 patent requires a “control
    means” that is responsive to plug detection and
    renders the voltage supply means operative when two
    contact pins are detected within a predetermined time value.


    Thus, the ’016 patent does not call out a
    specific, well-known component to perform the claimed
    function. Instead, the “control means” refers to a nebulous
    set of logic functions within a black box that also
    performs other functions. Like in Ergo Licensing, the
    specification “provides no more structure than the term
    ‘control means’ itself.” Ergo Licensing, 673 F.3d at 1363–

    Footnote 2 is of interest:

    Lufthansa’s shifting approach to claim construction
    underscores how, without a specific corresponding
    structure, the “control means” limitation becomes whatever
    structure the patentee conveniently identifies during

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  • CAFC reverses D. Del. on obviousness in vaginal ring (NuvaRing® ) case

    Procedurally, this was an appeal by patentee Merck of a finding of obviousness.
    The ’581 patent in question relates to a vaginal ring used for contraception,
    and its commercial embodiment is sold under
    the brand name NuvaRing®. Warner Chilcott is seeking
    to introduce a generic version of NuvaRing®, and concedes
    that its generic product would infringe the ’581
    patent if the claims are found valid.

    In an appeal from the United States District Court for the
    District of Delaware in No. 1:13-cv-02088-GMS, District Judge
    Gregory M. Sleet, the CAFC concluded:

    The dosage rates disclosed in PCT ’015, however, apply
    to a two-compartment ring. Thus, an ordinary artisan
    would need to calculate the relative concentrations for a
    two-compartment ring, and apply those concentrations to
    a single compartment. But again, PCT ’015 warns that
    release rates for single compartment rings are difficult to
    control. Indeed, PCT ’015 explains that its design can
    achieve consistent release rates because there are two
    compartments. See, e.g., J.A. 3040 at ll. 7–23 (describing
    how a ring-shaped device containing two separate compartments
    fulfills the requirement of a good release
    pattern). Therefore, an ordinary artisan would not discard
    the two-compartment design but still expect the ring
    to deliver a controlled dose of both compounds.

    Because it was not obvious to load the claimed concentrations
    of progestogenic compounds and estrogenic
    compounds in one compartment, we reverse the district
    court’s finding of invalidity.

    Merck wins.

    The district court had treated the issue
    as one of obviousness because of routine

    the court reasoned that “a person of ordinary
    skill would have been motivated to optimize PCT ’015
    such that the second compartment released physiologically
    required amounts of ETO and EE.” J.A. 19–20. The
    district court also found that PCT ’015 discloses target
    release rates for ETO and EE, and that “it would have
    been obvious for a person of skill to derive the claimed
    ratios of progestin and estrogen” from the target release
    rates. J.A. 21. Accordingly, the district court held that
    claims 4 and 11 are invalid as obvious.

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  • An Overview of the USPTO Count System

    Dr. Naira Simmons has published a nice short article titled: Putting Yourself in the Shoes of a Patent Examiner: Overview of the United States Patent and Trademark Office (USPTO) Patent Examiner Production (Count) System, 17. J. Marshall Rev. Intell. Prop. L. 32 (2017). The goal of this note is to provide an overview of the system […]

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