• Contracts 101: Covenants, Representations and Warranties in IP License Agreements

    It continually amazes me that many business folks who negotiate tons of IP license agreements, fail to understand the difference between covenants, representations, and warranties that are “standard” in many such agreements.  Well, that is not too surprising.  What is very surprising, however, is that many of their lawyers fail to appreciate the differences as well!  Many think the terms are synonymous and thus use them interchangeably. They are not.  So, for those of you tired of faking the…

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  • Patent Infringement Lawsuit Against Comcast Highlights Attractiveness of Middle District of Florida for Patent Plaintiffs

    On August 1st, Fort Myers, FL-based over-the-top (OTT) Internet television provider WhereverTV filed a suit alleging patent infringement against Philadephia, PA-based telecommunications conglomerate Comcast Corporation. Despite the fact that Comcast is headquartered in Pennsylvania and the inventor listed on WhereverTV’s patent resides in Pennsylvania, the complaint was filed in the Middle District of Florida, a district which has been growing more attractive for parties filing patent…

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  • Happy Birthday to Us! IPWatchdog turns 19!

    It is almost difficult to believe that 19 years ago today IPWatchdog.com first launched… There will no doubt be changes in the future. In fact, we anticipate big new things for IPWatchdog in 2019, which is when we will celebrate our 20th anniversary. With whatever changes happen, whether substantive or to the look and feel, IPWatchdog.com will continue to grow and evolve with the industry and the times. We are just getting started! 

    The post Happy Birthday to Us! IPWatchdog turns 19!…

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  • 事実上




    $$ The responses of the IR LED 154 and detector diode 172 are effectively linear over a wide operating range. / 前記IRLED154と検知ダイオード172との応答は、事実上、広い動作範囲にわたり比例している。(USP8866083)

    $$ The temperature control device is effectively modular in that multiple temperature control devices can be built up together without affecting the operation of other such devices. / 複合温度制御装置の中において事実上モジュール式組立品である温度制御装置は、他のそのような装置の運転に影響することなく、一緒に組み立てることができる。(USP7612996)

    $$ At 26 this is taken from the unfiltered value ForceVehEstRaw to provide what is in effect a high pass filtered version ForceVehEstBPFilt. / 26で、これがフィルタの掛けられていない値ForceVehEstRawから引かれ、事実上高域フィルタが掛けられたバージョンForceVehEstHPFiltをもたらす。(USP8989970)

    $$ The light guide in effect operates as a kaleidoscope. / 光導体は、事実上万華鏡として作動する。(USP7589825)

    (IN FACT)
    $$ It is also within the scope of the invention that the bipolar element is not a composite, but in fact a single material. / また、双極性要素が複合体ではなく、事実上単一の物質であるものも、本発明の範囲内である。(USP8747644)

    $$ There is in fact no limit, in theory, to a number of turns that could be wound on the secondary core set so that the loop turns themselves match a required power supply voltage. / 理論的には、ループターン自体が所要の電源電圧に一致するように2次コアの組の上に巻くことができるターン数に事実上制限はない。(USP8466770)

    $$ In fact, it will be recalled that the template matching of the head locating is performed on greyscale images (Y channel only). / 事実上、頭部の位置特定のためのテンプレート照合はグレイスケール画像(Yチャネルのみ)で実行されることが思い出されるであろう。(USP8098902)

    $$ Many plant species, as is evidenced in nature, benefit from successive water-inundations followed by drier periods where oxygen can again be present in the soil and around some or all of the roots. / 多くの植物種は、事実上明らかなように、連続した浸水後に酸素が土壌中および根元の一部または全ての周囲に再び存在し得る更に乾いた期間が続くことにより利益を得る。(USP8979430)

    $$ The term should be interpreted broadly, suggesting only that the substance discussed is liquid in nature, i.e. it is a non-gaseous fluid with flow characteristics. / 用語は広く解釈されるべきであり、言及する物質が事実上液体である、すなわち、流動特性を有する非ガス状の流体であることのみを示唆している。(USP8104949)

    $$ This check is similar in nature to that performed on the eye pair co-ordinates obtained from the local search as described above in relation to step 409. / 該チェックは、ステップ409に関連して前述されたように、ローカルサーチから得られる目の組の座標に対して実行されるチェックに事実上類似している。(USP8098902)

    $$ The use of multiple communication channels enhances security yet further, as it is virtually impossible for a hacker to compromise more than one simultaneously. / 複数のコミュニケーションチャンネルの使用は、ハッカーが同時に複数を侵害することが事実上不可能であるため、安全性を高める。(USP8935762)

    $$ The first component may take virtually any shape and have a bond surface that is planar, convex or concave. / 第1のコンポーネントは、事実上任意の形状をとることができ、平面状、凹状、又は凸状の結合面を有することができる。(USP8690472)

    $$ Multiple virtual covert security features 15 can be extracted from a single physical feature. / 単一の物理的特徴から複数の事実上隠れたセキュリティ特徴15を抽出することができる。(USP8308060)

    $$ The use of an fibre optic delay line enables large bandwidths of several gigahertz to be delayed by substantial periods equivalent to many tens of kilometres with virtually no loss. / 光ファイバ遅延線路を使用することにより、事実上、損失を伴うことなく、数十キロメートルと等価の実質的な期間にわたって数ギガヘルツの広い帯域幅を遅延させることができる。(USP7592943)

    $$ However other modes are possible and these other modes are reduced (if not practically eliminated) by constraining the cylindrical surface 44 from deformation other than along its axis. / しかしながら、他の形態も起こる可能性があり、これら他の形態は、円筒面44がその軸に沿った変形以外の形で変形しないようにすることによって(事実上なくならないとしても)減らされる。(USP8662646): practically

    $$ Hence, in practice, preferably the open sample cell 18 is longer than 1 meter, and ideally longer than 1.5 meters. / 従って、事実上、オープン試料セル18の長さは、好ましくは1メール以上で、理想的には、1.5メートル以上である。(USP8339606): in practice

    $$ The open area of valve 2 needs to be larger than the largest setting of valve 17 so that, at this moment, the pressure in line 11a, becomes substantially equal to the supply pressure. / バルブ2の開口部は、この時点で管路11a内の圧力が事実上供給圧力に等しくなるように、バルブ17の最大設定値より大きいことが必要である。(USP8276584): sustantially


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  • IP, Digital Trade and the New "NAFTA"

    The United States Trade Representative has released a summary of some of the highlights concerning IP and the new “NAFTA” between the United States, Canada and Mexico.  The USMC agreement (United States Marine Corps or What We Say — I’m making a joke.) summary states, in part:

    UNITED STATES–MEXICO–CANADA TRADE FACT SHEET Modernizing NAFTA into a 21st Century Trade Agreement

    The United States, Mexico, and Canada have reached an agreement to modernize the 24-year-old NAFTA into a 21st century, high-standard agreement. The new United States-Mexico-Canada Agreement (USMCA) will support mutually beneficial trade leading to freer markets, fairer trade, and robust economic growth in North America.


    The United States, Mexico, and Canada have reached an agreement on a modernized, high-standard Intellectual Property (IP) chapter that provides strong and effective protection and enforcement of IP rights critical to driving innovation, creating economic growth, and supporting American jobs.

    Key Highlights: Protections for United States Innovators and Creators

    The new IP Chapter will:

    • Include 10 years of data protection for biologic drugs and a robust scope of products eligible for protection.
    • Require full national treatment for copyright and related rights so United States creators are not deprived of the same protections that domestic creators receive in a foreign market.
    • Continue to provide strong patent protection for innovators by enshrining patentability standards and patent office best practices to ensure that United States innovators, including small- and medium-sized businesses, are able to protect their inventions with patents.
    • Include strong protection for pharmaceutical and agricultural innovators.
    • Require a minimum copyright term of life of the author plus 70 years, and for those works with a copyright term that is not based on the life of a person, a minimum of 75 years after first authorized publication.
    • Require strong standards against the circumvention of technological protection measures that often protect works such as digital music, movies, and books.
    • Establish appropriate copyright safe harbors to provide protection for IP and predictability for legitimate enterprises that do not directly benefit from the infringement, consistent with United States law.
    • Provide important procedural safeguards for recognition of new geographical indications (GIs), including strong standards for protection against issuances of GIs that would prevent United States producers from using common names, as well as establish a mechanism for consultation between the Parties on future GIs pursuant to international agreements.
    • Enhance provisions for protecting trademarks, including well-known marks, to help companies that have invested effort and resources into establishing goodwill for their brands.

    Key Achievement: Most Comprehensive Enforcement Provisions of Any Trade Agreement

    For the first time, a trade agreement will require allof the following:

    • Ex officio authority for law enforcement officials to stop suspected counterfeit or pirated goods at every phase of entering, exiting, and transiting through the territory of any Party.
    • Express recognition that IP enforcement procedures must be available for the digital environment for trademark and copyright or related rights infringement.
    • Meaningful criminal procedures and penalties for unauthorized camcording of movies, which is a significant source of pirated movies online.
    • Civil and criminal penalties for satellite and cable signal theft.
    • Broad protection against trade secret theft, including against state-owned enterprises.

    Key Achievement: Strongest Standards of Protection for Trade Secrets of Any Prior FTA

    In particular, the Chapter has the most robust protection for trade secrets of any prior United States trade agreement.  It includes all of the following protections against misappropriation of trade secrets, including by state-owned enterprises: civil procedures and remedies, criminal procedures and penalties, prohibitions against impeding licensing of trade secrets, judicial procedures to prevent disclosure of trade secrets during the litigation process, and penalties for government officials for the unauthorized disclosure of trade secrets. 


    The new Digital Trade chapter contains the strongest disciplines on digital trade of any international agreement, providing a firm foundation for the expansion of trade and investment in the innovative products and services where the United States has a competitive advantage. 

    Key Highlights of the Digital Trade Chapter

    The new Digital Trade chapter will:

    • Prohibit customs duties and other discriminatory measures from being applied to digital products distributed electronically (e-books, videos, music, software, games, etc.).
    • Ensure that data can be transferred cross-border, and that limits on where data can be stored and processed are minimized, thereby enhancing and protecting the global digital ecosystem.
    • Ensure that suppliers are not restricted in their use of electronic authentication or electronic signatures, thereby facilitating digital transactions.
    • Guarantee that enforceable consumer protections, including for privacy and unsolicited communications, apply to the digital marketplace.
    • Limit governments’ ability to require disclosure of proprietary computer source code and algorithms, to better protect the competitiveness of digital suppliers.
    • Promote collaboration in tackling cybersecurity challenges while seeking to promote industry best practices to keep networks and services secure.
    • Promote open access to government-generated public data, to enhance innovative use in commercial applications and services.
    • Limit the civil liability of Internet platforms for third-party content that such platforms host or process, outside of the realm of intellectual property enforcement, thereby enhancing the economic viability of these engines of growth that depend on user interaction and user content.

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  • Learned Hand’s family nickname “Jowly Pips”

    I ran across a C-span video of Professor Constance Jordan discussing her grandfather, Judge Billings Learned Hand.  She remarks at one point in the video that Judge Hand’s family nickname was “Jowly Pips,” which was shortened to “J.” My grandfather, whom we called J — by the way, it was not because he was Judge […]

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  • Broadcasters Eager For Global Signal Protection; Others Warn Of Major Players Sneaking In

    The so-called broadcasting treaty being negotiated at the World Intellectual Property Organization is supported by broadcasters’ organisations in the hope that it will stanch signal piracy. Some voices however, warn about creating a right that might be captured by large internet corporations such as Facebook, Google and Netflix, which can be a stone’s throw away from acquiring radio or television channels to qualify for the protection of the potential treaty. They also challenge the duration and scope of the protection. A seminar gathering stakeholders last week looked at implications of the treaty.

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