Innovation in Access to Legal Services for the Middle Class and Poor: The Great Untapped Market?

One of the pressing problems in the United States has been access to legal services, particularly to the poor and the middle class.  For sure, the wealthy have access to lawyers, but the poor and middle class apparently struggle.  Indeed, the Legal Services Corp. recently released a report titled, “The Justice Gap: Measuring the Unmet Legal Needs of Low Income Americans.”  The Legal Services Corp. teamed up with the University of Chicago to collect data concerning the gap and made some (perhaps unsurprising) findings.  The most important finding: “86% of the civil legal problems reported by low income Americans in the past year received inadequate or no legal help.”  Moreover, “71% of households with veterans or other military personnel have experienced a civil legal problem in the past year.” And, “more than 60 million Americans have family incomes 125% below the Federal Poverty Line,” including 1.7 million veterans.  In Seniors’ households, “56% had at least one civil legal problem in the last year.” 

In a recent press release, the Brigham Young University Law School has announced a program to address some of these problems called, “Law X”:

LawX will tackle some of the most challenging issues facing our legal system today,” said Gordon Smith, Dean of BYU Law School. “Some gaps in legal services may not be attractive targets for innovation by small, private startups or larger profit-oriented businesses, but closing these gaps would make a tremendous difference to many people who feel priced out of the market for legal services. A legal design lab embedded within a law school is an ideal platform for addressing these issues. LawX will use design thinking to address these problems, and when appropriate, to create products to solve them.”

LawX was conceived by Dean Smith and Kimball D. Parker. Parker, who developed and founded CO/COUNSEL, a legal education and crowdsourcing website, will teach the corresponding course, debuting in the fall for second- and third-year BYU Law students. With the ambitious goal to solve one legal challenge a semester, the course will be structured as a design-thinking process, in which students will have fast-paced deadlines and responsibilities that are much like being in a startup. The course will be an immersive, hands-on experience by law students in collaboration with students and professors in other departments at BYU.

Interestingly, Tech Transfer Central reports that a University of Michigan Law School start-up, Court Innovations, has received $1.8 million in funding to commercialize a software program.  The program lets people who are working, have to care for children or are concerned with getting in trouble with immigration enforcers to make appearances and resolve problems in court “remotely.”  [Hat tip to Professor Paul Caron’s Tax Prof blog for leads to the Legal Services Corp. report and the Law X press release.]

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  • Academic Patent Licensing Helps Drive the U.S. Economy

    What’s even more impressive is the impacts on gross industry output and GDP are up 14% while  the number of U.S. jobs supported rose 12% since the previous report issued two years ago. That’s remarkable at a time when the overall U.S. economy has been treading water… While the attacks on Bayh-Dole (and the patent system) are largely driven by emotion, here’s some additional data BIO cited that’s worth considering: over the past 25 years academic inventions led to the formation of 11,000…

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  • More Classic Patent Scholarship

    It has been a while since the last update to my Classic Patent Scholarship, so I thought I would add some works that I view as “classics” but that haven’t made it onto the list yet.

    First, while the body of “Beyond IP” scholarship is blossoming (see, e.g., the two Yale ISP conferences, where I got to present work with Daniel Hemel), there is a long history of work on innovation incentives beyond patents. For example, Machlup and Penrose (already on the list of classics) describe how the patents-vs-prizes debate dates back to at least the 19th century. Here are two works I would add to the classics list:

    Other important works in this genre, which don’t quite fit under my pre-2000 “classic” bar, include Frischmann 2000, Shavell & van Ypersele 2001, Gallini & Scotchmer 2002, and Abramowicz 2003.

    As a former grant-funded university researcher (during my physics grad school days), I’m particularly interested in the role of grants and other direct funding as a non-patent incentive, and their overlap with patents through the Bayh–Dole Act. Here are some additional classics in this area:

    Finally, there is now a long strand of literature on the Federal Circuit as an institution and the value of specialized patent adjudication; anyone interested in this area should start with the work of Rochelle Dreyfuss:

    For other classics—including more extended commentary on them by prominent patent law professors—see the Classic Patent Scholarship page. And if you have suggestions of other pre-2000 works that should be on the list, please add them to the comments on send me an email!

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  • Finjan Secures $15.3 Million Series A-1 Preferred Stock Financing

    Finjan will issue 153,000 shares of Series A-1 Preferred Stock at a price of $100 per share to Soryn HLDR. In connection with this transaction, the company will also issue to Soryn HLDR warrants to purchase two million shares of common stock at an exercise price of $3.18 per common share. 

    The post Finjan Secures $15.3 Million Series A-1 Preferred Stock Financing appeared first on | Patents & Patent Law.

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  • Apple is Holding Companies and Innovation Hostage

    These companies are examples of potential victims of Apple’s singular focus on profit. However, what’s at stake is much larger than Apple’s bottom line. While Apple is breaking market cap records, it is systematically devaluing innovation and technology. If these bullying tactics are not kept in check, Apple’s own partners will lack the resources needed to invest in new developments and better ideas. Further, the precedent will be established that the largest technology company in the world can…

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  • Cleveland Clinic Decision Highlights Catch-22 Of Personalized Medicine Patents

    The Federal Circuit decision in Cleveland Clinic Foundation v. True Health Diagnostics LLC, strikes another blow against the patent eligibility of diagnostic methods and highlights the difficulty of enforcing personalized medicine patents. The court affirmed the invalidity of claims related to a blood test for atherosclerotic cardiovascular disease, and agreed with the district court that diagnostic…… Continue reading this entry

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  • New Papers on on FRAND, SEPs, Holdup & Holdout, Part 2

    1.  Bowman Heiden and Nicolas Petit have posted an article on ssrn titled Patent Trespass and the Royalty Gap:  Exploring the Nature and Impact of Patent HoldoutHere is a link to the paper, and here is the abstract:
    This paper studies the problem of patent holdout. Part I reviews the economic theory of holdout, with a specific emphasis on patents. It shows that the ordinary concept of holdout refers to the non-transacting conduct of a property owner, and that “patent trespass” is a better characterization for technology implementers’ attempt to evade the conclusion of licensing agreements. Part II proposes a definition and provide illustrations of patent trespass. To that end, the paper relies on the qualitative data gathered during interviews with industry stakeholders as well as on an analysis of holdout in case-law. Part III exposes the factors that determinatively make patent trespass transactional, systematic and/or systemic. Part IV records the results of of a quantitative study of patent trespass, based on the intuitions that arose from received theory and qualitative interviews as exposed in previous parts. The preliminary empirical results show a correlational link between the nature of patent trespass and the heterogeneity of market actors and markets. In particular, MNCs operating in developed markets seem to primarily deploy extensive delaying tactics with the main goal of reducing their royalty payments, while large firms in emerging markets (LFE) and small to medium-sized enterprises (SMEs), especially the “long tail” of microvendors, seek to avoid payment altogether. 

    2.  Richard Li and Richard Li-dar Wang have published a paper titled Reforming and Specifying Intellectual Property Rights Policies of Standard-Setting Organizations: Towards Fair and Efficient Patent Licensing and Dispute Resolution, 2017 U. Ill. J. L. Tech. Pol’y 1.  Here is  a link to the paper, and here is the abstract:

    Standard-setting organizations (SSOs) rely on commitments to license on fair, reasonable, and non-discriminatory (FRAND) terms from standard-essential patent (SEP) holders to ensure access to standards and prevent potential anticompetitive conduct that unreasonably enforces SEPs against standard implementers. A substantial number of SEP disputes, however, have been raised unceasingly in recent years. In this Article’s research, a statistical analysis of the SEP litigation cases in the United States from 2000 to 2014 shows that the SEP disputes are closely related to the FRAND licensing terms that are required in the intellectual property rights (IPR) policies of the SSOs in the information and communications technology (ICT) sector. In accordance with opinions to date from the U.S. Court of Appeals for the Federal Circuit, the U.S. International Trade Commission, the U.S. competition authorities, the European Commission, and the Court of Justice of the European Union, there is no per se rule that prohibits seeking injunctive relief against SEP infringement. Nonetheless, the criteria to decide whether to grant injunctive relief are different among various forums. In principle, injunctive relief should not be granted against a standard implementer who is willing to take license and is still negotiating in good faith with the SEP holder, so as to be aligned with the SEP holder’s commitment to license on FRAND terms. With regard to FRAND royalties of SEPs, a fundamental principle emerging from several court decisions on SEP royalties in the United States is that a royalty award for an SEP should only be based on the value of the patented invention, not to include the value added from the standards.

    Furthermore, through semi-structured interviews with standard-setting delegates and licensing negotiators from the ICT industry, this research finds that many existing IPR policies are too ambiguous to constrain potential anticompetitive conduct that enforces SEPs in an unreasonable way. In fact, in light of the results of the statistical survey, the case analysis, and the stakeholder interviews, it has become urgent and imperative to improve existing vague and ambiguous IPR policies. Concrete proposals for reforming IPR policies include: defining the standard essentiality clearly and using the accurate phrase “essential patent claim”; adding specific deadlines for SEP disclosure and declaration, legal effects of failing to disclose, and update obligations for material changes concerning SEPs; incorporating prerequisite conditions for seeking injunctive relief against SEP infringement; clarifying the FRAND obligation applicable to all offers of SEP royalties during licensing negotiations; identifying a series of steps or key factors for SEP royalty calculation under the FRAND obligation; and allowing reciprocal license to be a precondition for the commitment to license on FRAND terms. These proposals could substantially strengthen existing IPR policies, fix their ambiguities, and avoid potential disputes.

    Finally, this research investigates fifteen representative SSOs, examining whether their IPR policies conform to the reforming proposals, by way of which the authors further elaborate on these proposals and provide substantial suggestions on how to amend the existing policies of the representative SSOs to avoid potential disputes. Based on the statistical and qualitative analysis and the specific reforming proposals, this Article concludes that it is imperative to reform existing IPR policies to facilitate fair and efficient SEP licensing and dispute resolution, and therefore to promote competition and to ultimately benefit consumers around the world.

    3. Yang Li published a paper titled FRAND Holdup and Its Solution, 25 IIP Bulletin (2016).  Here is a link to the article, and here is the abstract:

    Although many approaches have been raised to determine and calculate the royalty of SEP with FRAND commitment, because of grossly exaggeration of the risks of patent holdup and overemphasizing limiting or eliminating the availability of injunction, in the absence of scientific and uniform standard of determining FRAND royalty, not only FRAND royalty of substantive justice is still far away, but also FRAND holdup has become a serious issue perplexing SEP holder. In order to mitigate, prevent and even eliminate FRAND holdup and to determine FRAND royalty at the meantime, FRAND-oriented towards procedural justice is perhaps a good choice. The core of FRAND-oriented towards procedural justice is to design a set of rule of Notice and Counter-Notice to stimulate SEP holder and SEP implementer to negotiate royalty in good faith and settle FRAND royalty through negotiation. In case of negotiation failure, the third independent party (court, arbitration organization) can also depend on rule of Notice and Counter-Notice to determine whether injunction is necessary and decide what’s FRAND royalty.

    I previously mentioned a version of this paper published in China Patents & Trademarks, here.  This issue of the IIP Bulletin also has an article titled Various Issues Concerning IP Litigation from the Perspective of the Legal System, which is “an English summary by the Institute of Intellectual Property based on the FY2015 JPO-commissioned research study report on the issues related to the industrial property rights system.”  There is some discussion of damages and attorneys’ fees at pp. 3-4.

    4.  Marco LoBue has posted a short write-up on the Trust in IP Blog titled High Court rules in favour of the SEP holder and narrows the scope of competition law defence in Unwired Planet vs. Huawei.  He concludes that “[w]hile some judges (i.e. the Court of Appeal of Dusseldorf in Sisvel v. Haier) apply Huawei strictly, others keep into account specific features such as the defendant’s sophistication and its countervailing buyer power. Therefore, in spite of Huawei, lack of legal certainty across different jurisdictions continues to be a concern for companies active in SEP licensing.”

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  • Copyright issue with Turnitin?

    In an essay titled A Guide for Resisting Edtech: the Case against Turnitin in Hybrid Pedagogy, Morris and Stommel write of Turnitin:

    Turnitin isn’t selling teachers and administrators a product. The marketing on their website frames the Turnitin brand less as software and more as a pedagogical lifestyle brand. In fact, the word “plagiarism” is used only twice on their home page, in spite of the fact that the tool is first and foremost a plagiarism detection service. The rest of the copy and images are smoke and mirrors. They are “your partner in education with integrity.” They are “trusted by 15,000 institutions and 30 million students.” (We feel certain they didn’t ask those 30 million students whether they “trust” Turnitin.) The “products” most prominently featured are their “revision assistant” and “feedback studio.” For the teachers and administrators using Turnitin as a plagiarism detector, these features function like carbon offsetting. When asked whether their institution uses Turnitin, they can point to all the other things Turnitin can be used for — all the other things that Turnitin is not really used for. The site even attempts to hide its core functionality behind a smokescreen; in the description for the “feedback studio,” plagiarism detection is called “similarity checking.”

    BUT, Turnitiin ONLY looks for similarity. It is not checking for copying without attribution (plagiarism). In the essay, Morris/Stommel talk about intellectual property (e.g., a “product,” some of which, like Turnitin, are designed to eat our intellectual property] but the word copyright arises only in statements from turnitin.
    One puzzles at what Morris/Stommel mean in the text: Even if it is true that Turnitin doesn’t assert ownership over the intellectual property it collects, their statement is misleading. They are basically saying our brand is your brand — that by helping them build their business we all simultaneously protect our own intellectual property. This is absurd.

    IPBiz suggests that Turnitin is NOT saying “our brand is your brand.” They are saying, by showing similarities of your presented work to past work, Turnitin enables you to weed out weak parts and strengthen your work. Turnitin is not using past student work for its original purpose (in contrast to say, an essay mill).

    This key point is ignored by Morris/Stommel in the text: In a recent conversation where he tried to explain why Turnitin’s violation of student intellectual property was a problem, Sean’s argument was countered with a question about whether that intellectual property was worth protecting. After all, most student work “isn’t worth publishing.” Ignoring for a moment this flagrant disregard for the value of student work, the point to make here is that Turnitin actively profits (to the tune of $752 million) from the work of students.

    One knows from Feist that copyright requires only marginal creativity. The issue of “worth protecting” is not Turnitin’s point. They are not using past student essays as essays and trying to compete with students in the marketplace. The essays stay in a vault. The past essays are comparators.

    TimesHigherEd pushes the IP angle:

    “Plagiarism detection software, like Turnitin, has seized control of student intellectual property,” write Mr Morris and Professor Stommel [in an essay in Hybrid Pedagogy]. “While students who use Turnitin are discouraged from copying other work, the company itself can strip-mine and sell student work for profit.”

    Turnitin’s practices have been ruled as being fair use in a federal court, and the company itself offers a different perspective on its operations.

    “When students engage in writing and submitting assignments via Turnitin’s solutions, students retain the copyright of the submitted papers,” said Chris Harrick, vice-president of marketing. “We never redistribute student papers, or reveal student information via the service.


    But to Mr Morris and Professor Stommel, the ceding of control of students’ work to a corporation is a moral issue, even if it’s legally sound. Time spent on checking plagiarism reports is time that would be better spent teaching students how to become better writers in the first place, they argue.

    “This is ethical, activist work….we must ask ourselves, when we’re choosing ed tech tools, who profits and from what?” they write in the essay. “Every essay students submit – representing hours, days or even years of work – becomes part of the Turnitin database, which is then sold to universities.”

    In an interview, Dr Morris and Professor Stommel said that they wrote the post with a view to rethinking on a pedagogical level how students are taught about plagiarism, and what should be emphasised when teaching students how to write.


    IPBiz notes that it is hard to see how Turnitin “has seized control of student intellectual property.” Turnitin does not re-publish student work. It compares a new submission to archived work.

    Of course, under the (circuit) law of AGU v. Texaco, archiving itself can be problematic. But the purpose of archiving is different between Turnitin and the archived research papers at Texaco.

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  • CAFC discusses websites in personal jurisdiction case Nexlearn v. Allen

    The CAFC affirmed D. Kansas on lack of personal jurisdication.

    Of the law:

    “Personal jurisdiction is a question of law that we review
    de novo.” Autogenomics, Inc. v. Oxford Gene Tech.
    Ltd., 566 F.3d 1012, 1016 (Fed. Cir. 2009). We apply
    Federal Circuit law when reviewing claims “intimately
    involved with the substance of the patent laws” and the
    law of the regional circuit when reviewing state law
    claims. Elecs. for Imaging, Inc. v. Coyle, 340 F.3d 1344,
    1348 (Fed. Cir. 2003). Where, as here, the district court
    decided personal jurisdiction “based on affidavits and
    other written materials in the absence of an evidentiary
    hearing, a plaintiff need only to make a prima facie showing
    that defendants are subject to personal jurisdiction.”
    Avocent Huntsville Corp. v. Aten Int’l Co., 552 F.3d 1324,
    1329 (Fed. Cir. 2008). We “accept the uncontroverted
    allegations in the plaintiff’s complaint as true and resolve
    any factual conflicts in the affidavits in the plaintiff’s
    favor.” Id. To make a prima facie showing, we ask
    “whether a forum state’s long-arm statute permits service
    of process and whether assertion of personal jurisdiction
    violates due process.” Autogenomics, 566 F.3d at 1017.
    The Kansas Supreme Court has interpreted Kansas’ longarm
    statute to extend jurisdiction to the fullest extent
    allowed by due process. Merriman v. Crompton Corp.,
    146 P.3d 162, 179 (Kan. 2006).
    Pursuant to 28 U.S.C. § 1367(a), “it is well established—in
    certain classes of cases—that, once a court has
    original jurisdiction over some claims in the action, it may
    exercise supplemental jurisdiction over additional claims
    that are part of the same case or controversy.” Exxon
    Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552
    (2005). To exercise supplemental jurisdiction, the district
    court “must first have original jurisdiction over at least
    one claim in the action.” Id. at 554.

    At district court:

    Drawing all reasonable inferences in favor of
    NexLearn, the district court held that NexLearn failed to
    allege that Allen had sufficient contacts with Kansas to
    permit the exercise of specific jurisdiction. It determined
    the NDA and EULA Kansas choice-of-law and forumselection
    provisions were not relevant for specific jurisdiction
    over NexLearn’s patent infringement claim. It held
    that because five of Allen’s six emails to NexLearn employees
    were sent before the ’522 patent issued on August
    5, 2014, NexLearn’s patent infringement claim could
    not have arisen out of or related to these emails. It held
    Allen’s sole post-issuance email, as well as its offer of a
    free trial of ZebraZapps to a NexLearn employee, could
    not form a basis for exercising jurisdiction because these
    contacts were manufactured by NexLearn’s unilateral
    acts. The NexLearn employees, it reasoned, received
    Allen’s emails only because they subscribed to Allen’s
    mass emailing list and received a free trial of ZebraZapps
    only because of a purchase attempt. Regarding Allen’s
    ZebraZapps website, the district court held the website
    alone, absent evidence of an actual sale, was insufficient
    to confer specific jurisdiction. It held neither Allen’s
    single sale of an unaccused product to a Kansas resident
    nor its general advertisement in a trade publication was
    relevant to NexLearn’s patent infringement claim. Because
    it held it lacked personal jurisdiction over
    NexLearn’s patent infringement claim, and because
    NexLearn did not assert breach of contract as an independent
    basis for the district court’s subject matter jurisdiction,
    the district court granted Allen’s motion to

    Plaintiff-appellant Nexlearn argued:

    NexLearn alleges that personal jurisdiction exists for
    its patent infringement claim, the only claim over which it
    asserts the district court possesses original jurisdiction. A
    district court can exercise personal jurisdiction over an
    out-of-state defendant pursuant to either general or
    specific jurisdiction. Under general jurisdiction, a district
    court can “hear any and all claims against [out-of-state
    defendants] when their affiliations with the State are so
    ‘continuous and systematic’ as to render them essentially
    at home in the forum State.” Daimler AG v. Bauman, 134
    S. Ct. 746, 749 (2014) (citation omitted). Specific jurisdiction
    instead “focuses on the relationship among the defendant,
    the forum, and the litigation.” Walden v. Fiore,
    134 S. Ct. 1115, 1121 (2014) (alteration omitted). To
    comport with due process, the out-of-state defendant must
    have “minimum contacts” with the forum State “such that
    the maintenance of the suit does not offend traditional
    notions of fair play and substantial justice.” Int’l Shoe Co.
    v. Washington, 326 U.S. 310, 316 (1945). At oral argument,
    NexLearn stated it alleged both general and specific
    jurisdiction. Oral arg. at 15:03–16:10. NexLearn did
    not argue general jurisdiction in its briefing to us or below
    to the district court. See NexLearn Br. 10; J.A. 7
    (“NexLearn does not allege general jurisdiction but rather
    that Allen had minimum contacts with Kansas based on
    specific jurisdiction.”). We thus decline to address general

    The CAFC stated:

    We agree with the district court’s determination that
    Allen’s contacts predating the issuance of the ’522 patent
    are not relevant contacts for establishing specific jurisdiction
    over NexLearn’s patent infringement claim.

    As to a website:

    Allen’s website together with its contacts with
    NexLearn create only an “attenuated affiliation” with
    Kansas as opposed to a “substantial connection” with the
    forum State as required for specific jurisdiction. See
    Burger King, 471 U.S. at 475. We thus affirm the district
    court’s dismissal of NexLearn’s patent infringement claim
    for lack of personal jurisdiction.

    Of the supplemental (contract) claims:

    While neither party
    disputes that a claim for patent infringement falls within
    the district court’s subject matter jurisdiction pursuant to
    28 U.S.C. §§ 1331, 1338(a), the district court’s dismissal of
    that claim for lack of personal jurisdiction left no remaining
    claim over which the district court could exercise
    original subject matter jurisdiction. See J.A. 17. A district
    court cannot exercise supplemental jurisdiction over
    a claim where original subject matter jurisdiction does not
    exist. 28 U.S.C. § 1367(a). Because we affirm the district
    court’s dismissal of NexLearn’s patent infringement claim
    for lack of personal jurisdiction, we affirm the district
    court’s dismissal of NexLearn’s supplemental claim for
    breach of contract.

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  • Industry Reaction to SCOTUS First Amendment Decision in Matal v. Tam

    Lauren Emerson, Baker Botts, LLP: “Today’s decision, while not surprising, is momentous, as any decision striking a longstanding legislative provision based on freedom of speech would be.  From a trademark practitioner’s perspective, Matal v. Tam is also remarkable in that it is the second decision in just over two years in which the Supreme Court specifically has taken note of the importance and value of trademark registration.   The decision has drawn additional attention as it undoubtedly…

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  • ‘Fu ck You!’ it’s registrable in the US

    Yesterday the Supreme Court in the United States ruled that the law prohibiting the registration of offensive and disparaging trade marks is against free speech rights. This case has interesting implications for all trade mark registries, especially those in countries or regions where constitutional rights exist. It also effectively puts to bed the REDSKINS trade mark dispute in the United States.
    The case involved the attempt to register the mark SLANTS by Asian-American band member Simon Tam. It was rejected by the USPTO, the appeal court found that to be unconstitutional and the Supreme Court has now agreed. Prof Wim Alberts provides an excellent summary of facts, and the implications for the REDSKINS dispute, in this Afro-IP post here.
    Like many others Prof Alberts predicted that the US Supreme Court would find reason to disagree with the appeal court and so this decision comes as a surprise to many.
    The judges held that:
    “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all,”
    “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate,” 
    In the US, as in most countries, there are laws preventing the registration of offensive trade marks. It is not without controversy as these US cases illustrate. In South Africa, the South African registry ruled against the registration of BUM for shirts in 1970 on such grounds and the irritation of US counsel makes amusing reading. He wrote that he:
    “fear(s) very strongly for the intellectual level of (the) South Afrikaner” and describes the Registrar at the time as having “not yet climbed out of the slime in which he was spawned..”. You can read it in full here.
    Just as there would be no question that BUM would be registrable in South Africa today, one questions whether the Government, even in  contemporary South Africa, should or is able to be the purveyor of moral codes on communication. It’s as controversial as it is probably, impossible.
    My apologies for the heading but you get my point (and it’s also not as offensive as it could have been).
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    $$ It has thus been shown that it has hitherto not been possible to produce 2,6,8,12-tetranitro-2,4,6,8,10,12-hexaazaiso wurtzitane (compound…

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  • End of Laches Might Increase Declaratory Judgement Actions

    Without laches, accused infringers might more frequently invoke declaratory judgment to clear their products and services upfront rather than tolerate a looming threat of suit for years…. The Supreme Court’s recent decision in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC (Mar. 21, 2017) eliminated the equitable defense of laches in patent cases.  While time will reveal the impact of the SCA decision, elimination of laches, an equitable defense against “unreasonable,…

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  • Matal v Tam: Only I Can Disparage You!

    The Supreme Court has affirmed that Trademark law’s restriction on registration of disparaging marks violates the free speech provision of the US Constitution. Read it: 15-1293_1o13 Although the court’s logic is largely incomprehensible, the result is simple: the PTO will begin allowing registration of disparaging marks and will not cancel Registered marks because they are disparaging. […]

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  • Sovereign Immunity of Patents: While a Strong Benefit to Patent Owners, These Patents Remain Subject to Traditional Challenges

    The United States Patent Trial and Appeal Board (“PTAB”) recently dismissed another inter partes review (“IPR”) based on an assertion of 11th Amendment sovereign immunity.  This decision demonstrates the willingness of the PTAB to permit State agencies (such as public universities, medical schools, and research centers) to effectively shield their patents from the threat of post-grant proceedings at the PTAB.  While this is certainly a benefit to entities that can take advantage of sovereign…

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