CAPE TOWN, South Africa – “If you want to create a knowledge-based economy and be part of it, be players not observers. There isn’t a stronger backbone than having an understanding of what IP is.” This statement was made by Mmboneni Muofhe, Department of Science and Technology (DST) deputy director general for technology and innovation, at the ninth Intellectual Property Summer School held at the University of the Western Cape (UWC) in December. The meeting brought together students, lawyers, scientists and different professionals drawn from Africa and other parts of the developing world for a ten-day intensive programme in intellectual property.Continue Reading ...
In the absence of a discernable IP policy, America achieved leadership through laws and courts that supported inventors, and commerce, and that encouraged risk-taking. But the world is now flatter than we could have imagined. If America hopes to remain at the innovation forefront, it needs to rely not only on the ingenuity of its inventors and creators, but on the leadership and vision of government and businesses… Despite the incredible success of several Internet companies — and, some…
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The issues I will be watching in 2018 other than Oil States are as follows: (1) What does the new Director of the USPTO do with respect to reforming the PTAB? (2) Will the USPTO adopt a code of judicial ethics for PTAB judges? (3) Will the U.S. drop ou…Continue Reading ...
Somewhere near the end of 2011, I responded to an ad that was left on Craigslist. A website called IPWatchdog.com was looking for a writer to contribute content on Apple’s patenting activities… Over the past five years, I’ve learned a lot about what it means to be an inventor in today’s patent system. I’ve learned that, unless you have the deep wallets to create advocacy groups which beat the drums for further patent reforms in service to the efficient infringer lobby, you tend to get…
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By Donald Zuhn –- After reflecting upon the events of the past twelve months, Patent Docs presents its 11th annual list of top patent stories. For 2017, we identified nineteen stories that were covered on Patent Docs last year that we believe had (or are likely to have) a significant impact on patent practitioners and applicants. Yesterday, we counted down stories #19 to #15, and today we count down stories #14 to #10 as we work our way towards the top five stories of 2017. As with our other lists (2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, 2008, and…Continue Reading ...
Guest Post by Brian Landry and Justin Crotty of Saul Ewing in Boston On December 26, 2017, the U.S. Court of Appeals for the Federal Circuit issued an order denying Regeneron Pharmaceuticals, Inc.’s combined petition for panel rehearing and rehearing en banc of a decision upholding a District Court holding of unenforceability due to inequitable […]Continue Reading ...
$$ It also affects the scope of a variable or a function. (USP6691301)
$$ The erosion and spalling affects not only the thickness but also the height and width. (USP6643991)
$$ This in turn affects the load distribution on the outer link plates 12 which also bend outwardly as shown. / これは次には両外側リンクプレート１２の負荷分布に影響を及ぼし、これらも図示の如く外向きに曲がる。(USP7634949)
$$ The magnitude of the castor angle affects variator performance. / キャスタ角の大きさはバリエータの性能に影響する。(USP7632208)
$$ This affects the equation for Rate Control in the following way / これによって、レート制御は、次のようになる。(USP6567128)
$$ The position of the slide affects the function of at least one other key which is never concealed by the slide. / スライドの位置は､スライドにより決して隠されない少なくとも１つの他のキーの機能に影響する｡(USP6282436)
$$ FIGS. 5 to 8 illustrate the effects of this processing on some sample images. / 【図５】～【図８】いくつかのサンプル画像に関するこの処理の影響を図解する。(USP7653238)
$$ This angle C is the "castor angle" and has an important effect on variator control. / この角度Ｃが「キャスタ角」であり、バリエータの制御に対し重要な影響を及ぼす。(USP7632208)
$$ If the cache memory logic implements the sharing protocol described above, then the chip is suitable to be used in the above manner to reduce the effects of cache inconsistency. / キャッシュメモリ論理が上に示された共用プロトコルを実行する場合、チップは上記の方法で使用され、キャッシュの非一貫性の影響を少なくするのに適切である。(USP6138216)
$$ In many cases two input channels are used, one of which interacts with the target gas under test and one which does not, so that variations in the source intensity can be eliminated and the effects of interference from other gases may be reduced. / 多くの場合、テスト中のターゲットガスと相互作用するチャネルと、相互作用しないチャネルの二つの入力チャネルが使用され、それにより放射源強度の変化がなくなり、他のガスからの妨害の影響が小さくなる。(USP6177674)
$$ The magnitude, frequency and pattern of such forces have an impact upon the chain wear, its fatigue strength and therefore it life expectancy. / そのような力の大きさ、印加の頻度及びパターンは、チェーンの磨耗、チェーンの疲労強度、つまりチェーンの寿命に影響する。(USP7634949)
$$ The process chemicals used in the methods of the present invention are relatively low hazard, cheap and easily disposable with a low environmental impact. / 本発明の方法で用いられる処理薬品は比較的危険が少なく､安価であり､環境への影響が少なく､容易に捨てることができる｡(USP6197252)
$$ End shielding coils have most influence close to the magnetic axis and act over relatively short axial distances. / 端部遮蔽コイルは、磁気軸付近に最も影響を有し、比較的短い軸線方向距離にわたって作用する。(USP7639007)
$$ Motion of the locking arm 905 may be influenced by motion of the stand assembly 260, 262 during reclining and righting of the appliance. / 固定アーム９０５の運動は、機器の傾斜および直立時のスタンド組立品２６０、２６２の運動に影響されうる。(USP7600292)
$$ The counting procedure is repeated on the surface and at a distance over an area with similar background, but away from the influence of the source. / 体表面上で、同様のバックグランドをもつエリア上のある距離において 、線源からの影響のない位置においてカウント手順を繰り返す。(USP7576332)
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I’m excited to be a participant in the annual Evil Twin debate, coming this Friday in San Diego in connection with the AALS conference. The debate is sponsored by the University of Richmond Law School and will take place at 4:30 at the Thomas Jefferson Law School.
The topic this year is: “Is the Defend Trade Secrets Act Defensible?” I’m taking the “yes” side. My Evil Twin is Orly Lobel, the Don Weckstein Professor of Labor and Employment Law at the University of San Diego Law School.
As a prelude to give her a head start, I thought I would share a recent essay by Professor Lobel: The DTSA and the New Secrecy Ecology, available on SSRN. The abstract is here
The Defend Trade Secrets Act (“DTSA”), which passed in May 2016, amends the Economic Espionage Act (“EEA”), a 1996 federal statute that criminalizes trade secret misappropriation. The EEA has been amended several times in the past five years to increase penalties for violations and expand the available causes of action, the definition of a trade secret, and the types behaviors that are deemed illegal. The creation of a federal civil cause of action is a further expansion of the secrecy ecology, and the DTSA includes several provisions that broaden the reach of trade secrets and their protection. This article raises questions about the expansive trajectory of trade secret law and its relationship to entrepreneurship, information flow, and job mobility. Lobel argues that an ecosystem that supports innovation must balance secrecy with a culture of openness and exchanges of knowledge. This symposium article is based on Professor Orly Lobel’s keynote presentation at the March 10, 2017 symposium entitles “Implementing and Interpreting the Defend Trade Secrets Act of 2016,” hosted by the University of Missouri School of Law’s Center for Intellectual Property and Entrepreneurship and the School’s Inaugural Issue of the Business, Entrepreneurship & Tax Law Review.
The essay lays out a good background of the DTSA and points to some of its key drawbacks. It’s a useful read for anyone looking for a relatively balanced synopsis of concerns about the DTSA some experience with it.
I have several little points to make about this essay, but I’ll save them for the debate (I’ll post a video afterward). But I thought that the general idea of the “New” Secrecy Ecology was worth a brief comment. I am, shall we say, skeptical. While it is true that the DTSA gives plaintiffs a new way to enforce their rights, and while there may even be some growth in trade secret claims (something unsubstantiated empirically), I wonder whether the phenomenon is either new or an ecology.
Let’s start with new. I’ll agree that there’s a new push, especially through the DTSA, for the protection of trade secrets. But there have always been many trade secrets and trade secret cases. Back in 2009, the BRDIS survey by the NSF/Census Bureau highlighted the overwhelming preference of companies for trade secrets rather than patents in all sectors. These secrecy rights are harder to infringe than patents, and thus we might see fewer cases. But, as I noted in an essay about Silicon Valley worker mobility nearly 10 years ago, if companies were harmed by real misappropriation, they did not hesitate to assert themselves.
The next question is of ecology. Here, our differences are more subtle. After all, it’s hard to say in one paragraph that trade secrets dwarf patents, and in the next paragraph say there’s no ecology. But if it were easy, everyone would do it, so here goes. A core point of the argument is that making it easier to file (and win/bully with) trade secret claims represents a new “secrecy first” ideology that moves innovation out of patenting and into trade secrets. This can harm innovation by limiting worker mobility.*
I’m not so sure that the DTSA has created this ecology. A forthcoming study by Chris Seaman and David Levine presents some nice data about the first year of the DTSA. There were 486 cases filed under the DTSA, about 10% of the number filed for patents. While such cases surely affected the defendants, it is a really low number of cases, especially in comparison with the BRDIS data about reliance on trade secrets. Furthermore, in 13% of those cases, either patents or copyrights were also alleged, and another 20% alleged violation of the Computer Fraud and Abuse Act. In other words, at least 1/3 of the cases would have been brought under some other federal statute (with even more under the Lanham Act, which is surprising), and all of them could have filed under state trade secret laws.
In addition, as Professor Lobel points out, if you make trade secrets more valuable, then people will rely on them more than they do now. I agree wholeheartedly, and pointed out as much in my book chapter that compares the relative incentives between trade secrets and other IP. But there are two sides to the equation. If there is more reliance on trade secrets today, I think that the inability to protect software through patenting that is driving it, not the meager aid that the DTSA gives. More important, defendants can infringe patents without knowing about it, while trade secret defendants must have had at least some contact with the plaintiff. In short, even if the DTSA emboldened plaintiffs, I’m not sure we’re at an ecology yet–at least not one in litigation. There may be a shift, but it’s a dent in the armor of patent litigation.
Though I question whether there is a bigger movement afoot, I must recognize that something led to the passage of the DTSA. The question is: if it is not some new movement, then why the push? I’ve got some ideas, but that may have to be another post.
*I won’t address whether worker mobility aids innovation; there is certainly evidence of that, and I’m no fan of noncompetes, inevitable disclosure, or wrongful claims, but I think the jury is out about the actual effect on innovation when employees move.Continue Reading ...
As noted last week, just before Christmas U.S. District Judge James Selna released the public redacted version of his memorandum of findings of fact and conclusions of law in TCL Communication Technology Holdings, Ltd. v. Telefonaktiebolaget LM Ericsso…Continue Reading ...
Current US law extends copyright for 70 years after the date of the author’s death, and corporate “works-for-hire” are copyrighted for 95 years after publication. But prior to the 1976 Copyright Act (which became effective in 1978), the maximum copyright term was 56 years—an initial term of 28 years, renewable for another 28 years. Under those laws, works published in 1961 would enter the public domain on January 1, 2018, where they would be “free as the air to common use.” Under current copyright law, we’ll have to wait until 2057.1 And no published works will enter our public domain until 2019. The laws in other countries are different—thousands of works are entering the public domain in Canada and the EU on January 1, writes the Duke University Center for the Study of the Public Domain.Continue Reading ...