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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  • POST

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    POST

    (柱・支柱)
    $$ 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–
    64.

    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
    litigation.

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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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  • World Health Summit: Failing Business Models In AMR And Vaccination

    BERLIN — With antimicrobial resistance (AMR) on the rise worldwide there is no time to lose for developing new antibiotic drugs, experts said during one of the last panels of this year’s World Health Summit in Berlin Tuesday. As in several other rounds during the three-day event, industry representatives underlined that there is an issue with the business model due to high risk and low return of investment for research in this area.

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  • Abstract Ideas: The Turnstile Keeps Spinning

    by Dennis Crouch Smart Sys. Innovations v. Chicago Transit Authority (Fed. Cir. 2017) In a split opinion, the Federal Circuit has affirmed the district court’s judgment on the pleadings – R. 12(c) – that the asserted claims of SSI’s four patents are invalid under Section 101 for claiming an abstract idea.  U.S. Patent Nos. 7,566,003, 7,568,617, […]

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  • Seaman on the VirnetX v. Apple Enhanced Damages Opinion

    This past Tuesday I wrote that “reports are coming in that Judge Schroeder (Eastern District of Texas) on September 29 entered a memorandum opinion and order awarding VirnetX $41.3 million in enhanced damages and another $96 million in costs, attorneys’ fees, and interest, on top of a damages award $302 million, in a suit against Apple.  For coverage, see, e.g., this story on Ars Technica.  Apparently the opinion and order have now been unsealed, but as of this morning it isn’t showing up on Lex Machina.”  Professor Christopher Seaman (Washington & Lee University) has now posted the opinion on Scribd and has authorized me to publish the following guest post summarizing it: 
    The district court found that Apple willfully infringed VirnetX’s patents by selling products that contained the accused features for a number of months (10 months for VPN on Demand, 5 months for FaceTime) after the initial jury verdict in 2012 found that Apple infringed and that the patents in suit were not invalid.  The court’s reasoning (see pp. 29-38) is focused on Apple’s post-verdict conduct, finding that “Apple’s continued sales after the verdict of products with the [infringing] features [was] unreasonably risky or reckless.”  (p. 35)  It rejected Apple’s claim that the PTO’s grant of a inter partes reexamination into the patents after the verdict made its conduct not willful/egregious (appeals of the reexam proceedings are still pending, but at least some claims of two of the patents-in-suit were cancelled by the PTAB in July).  Applying the Read factors (pp. 38-50), it awarded a 50% enhancement of the royalty rate during the relevant time frame, resulting an enhancement of approx. $41 million, even though the court concludes that “VirnetX has not presented any evidence of copying,” nor did it find any attempt to conceal the alleged misconduct.  The court also awarded attorney’s fees under 285 in part for VirnetX for the September 2016 trial.

     

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  • CAFC affirms ITC in Cisco/Arista matter

    From the case


    Cisco argues that inferring is a form of detection, and therefore Arista’s products infringe. The Commission, however, had before it evidence that showed that the accused functionality, ProcMgr, has no access to a subsystem’s configuration, and thus cannot definitely know whether a configuration has changed. For example, the ProcMgr system does “not have access to each agent’s configuration. Instead, ProcMgr only determines the last time the heartbeat file was updated.” J.A. 541. Evidence showed that ProcMgr can only infer a change but it does not know what the change was, only that a change may have occurred. J.A. 6070–71. Where, like here, there is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” we affirm the Commission’s noninfringement determination. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Because we affirm the Commission’s finding of no violation with respect to the ’597 patent, we do not reach Arista’s “alternative ground” for affirmance that the Commission should have reversed the ALJ’s determination that assignor estoppel barred Arista from challenging the ’597 patent under 35 U.S.C. § 101.

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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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  • 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
    optimization:


    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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  • “WTO Must Not Be The Odd One Out” – Members Revive Talks On GIs, Genetic Resources

    Members of a 2008 World Trade Organization coalition are trying to rekindle a negotiation to provide the same level of protection granted to wines and spirits to other geographical indications, and to grant intellectual property protection to genetic resources and traditional knowledge. The discussion might not make it to the December WTO ministerial, but the group hopes to open a “fresh window” for discussion.

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  • The Most Dangerous Hire: Lessons from Waymo v. Uber

    Every trade secret case is built around a story. Sure, the plaintiff’s story is different than the defendant’s, even though each draws on the same facts. For the rest of us that don’t have a dog in the fight, helpful lessons are available. But sometimes you have to look hard to find them. Here’s one. When Waymo, the Google self-driving car company, filed its lawsuit against Uber earlier this year, the story was remarkable enough… This case is instructive for any business considering hiring an…

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  • PLACE (名詞)

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    PLACE (名詞)

    –>take place

    $$ This locks the wires in place. / これにより、ワイヤを所定位置にロックする。(USP8112863)

    $$ Both devices 21 and 22 would already have their electrical connections in place (for example metal tracking on the sheets of the devices); / 両者のデバイス21、22は、所定の場所(例えば、デバイスのシート上の金属トラック)におけるそれらの電気的な接続を既に有するものとし得る。(USP5929562)

    $$ Such a system requires the user to be present in the same place as the transaction takes place. (USP7627895)

    $$ Once the locking plug 28 is in place, the cam handle 22 is operated. (USP7625134)

    $$ Pipelines are often used for carrying gases or liquids from one place to the other. (USP7635976)

    $$ This result is then shifted left one place. (USP7167887)

    $$ In place of the aluminium strip formation 35 and tab formations 38, shear pins may be located between the door 20 and frame 25. (USP5316334)

    $$ The key pad is held in the correct place using a cover. (USP6965789)

    $$ With a header file, the related declarations appear in only one place. (USP6691301)

    $$ Firstly an organisation employing people, such as home carers, who travel from place to place, can operate the system themselves. (USP6587551)

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