Draft legislation addressing patent eligibility is expected sometime this fall. The hope is that the bill will clarify patent eligibility issues and tackle inventions classified as abstract ideas, laws of nature and natural phenomena.
Proposed changes to section 101 are expected to broaden patentability for “any invention or discovery that provides specific and practical utility in any field of technology through human intervention.”
Proctor & Gamble has recently filed two trademark applications for “WTF” and “FML” – two colorful acronyms containing the word “F*CK”. These marks would have formerly been rejected on the basis that they are “scandalous” or “immoral;” however, recent decisions validating registration of THE SLANTS (a band with Asian members) and REDSKINS (an NFL team) has changed the trademark landscape. A recent Federal Court decision noted, “the First Amendment protects private expression, even private expression which is offensive to a substantial composite of the general public,” holding that FUCT is a registerable trademark.
UPDATE
The U.S. Supreme Court has ruled that the USPTO’s policy of rejecting “scandalous” marks is a violation of the First Amendment, making such trademark refusals an unconstitutional violation of free speech.
New EU Copyright Law Requires Tech Giants to Pay for Content
New EU legislation known as Article 11 and Article 13 was recently passed, requiring companies such as Facebook, YouTube and Google to take more responsibility and provide compensation for copyrighted material posted on their respective sites. The law also limits how copyrighted material may be shared on online platforms. Google complains that this will chill creativity and freedom on the internet.
Walmart was recently ordered to pay Variety Stores after a jury found that the company infringed Variety’s registered trademark BACKYARD. The jury concluded that Walmart’s use of the mark in a line of grilling products constituted willful infringement, resulting in a $95.5M treble damage award.
Since 1936, Levi has been placing a small fabric tag with the name LEVI on the pockets of its denim products. The company recently filed a trademark suit against Barbour, an English clothier that has been in business since 1894. Levi claimed that the blue fabric tags placed in the pockets of Barbour clothing created a likelihood of confusion. On February 1st, a Judge dismissed the case calling Levi Strauss a “bully.”
The United States has charged tech company Huawei with trade secret theft, wire fraud, and obstruction of justice. The DOJ alleges that the company took photos and measurements of a phone-testing robot and used that information to build a similar device. Huawei denied the theft, claiming it was the work of miscreants; however, recent emails offering bonuses to employees stealing information from competitors was recently uncovered.
The President recently signed the Music Modernization Act into law. This legislation streamlines payment to songwriters by creating a single mechanical licensing database for streamed music. The database is managed by music publishers and songwriters and paid for by digital streaming services.
USPTO Director Iancu recently proposed new patent eligibility guidelines at the quarterly meeting of the Patent Public Advisory Committee (PPAC). Iancu noted that clarity is needed both by examiners and applicants asking, “how can a claim be novel enough to pass 102 and nonobvious enough to pass 103, yet lack an “inventive concept” and therefore fail 101? Or, how can a claim be concrete enough so that one of skill in the art can make it without undue experimentation, and pass 112, yet abstract enough to fail 101? How can something concrete be abstract?” Hopefully the new guidelines will address these issues and give some much needed clarity.
Drug company Allergan transferred its Restasis drug patents to a Mohawk tribe in upstate NY. Under the deal, Allergan paid the Indian tribe $13.75 million and agreed to further payment of $15 million in annual royalties while the patents were in force. In exchange, the tribe agreed to lease the patents back to Allergan and promised to claim sovereign immunity in any USPTO patent challenges. Under the law, Indian tribes possess inherent sovereignty; however, this sovereignty may be limited through treaty or federal statute. Additionally, Congress possesses plenary power over tribes, allowing it to alter or abolish tribal sovereignty at will. The US Supreme Court recently held that Indian tribes cannot use sovereign immunity to shield themselves from patent challenges brought within the USPTO. The court did not decide whether sovereign immunity claims could be used by states.
The Supreme Court recently granted a petition for writ of certiori in Helsinn Healthcare S.A. v. Teva Pharm. USA, Inc. The court will be asked to determine whether the Leahy-Smith America Invents Act (AIA) bars an inventor from selling to a third party when that third party has a duty of confidentiality to the seller. Such an “on-sale” bar would prevent the inventor or assignee from filing a patent for that invention.
Update: Supreme Court holds that that a secret sale qualifies as prior art.
