LEGAL RESOURCES - ARTICLES

  • Home
    Home This is where you can find all the article posts throughout the site.
  • Categories
    Categories Displays a list of categories from this article.
  • Tags
    Tags Displays a list of tags that have been used in the article.
  • Writers
    Writers Search for your favorite blogger from this site.
  • Login
    Login Login form

businessman lockLast week, the United States Senate passed the Defend Trade Secrets Act of 2016 (the “DTSA”). If passed by the House of Representatives and signed by the President, the DTSA would for the first time grant owners of trade secrets a private right of action in federal court for the theft and misappropriation of trade secrets. While theft of trade secrets has been a federal crime since 1996, the United States has never enacted legislation granting to owners of trade secrets the right to commence civil actions in federal courts. Although trade secret owners have not gone entirely without civil remedies, as nearly all 50 states have enacted the Uniform Trade Secrets Act of 1979 (UTSA), the DTSA improves on existing state law in significant respects. First, the DTSA expands the universe of available remedies by providing for ex parte seizure orders that direct U.S. law enforcement officials to seize stolen or misappropriated assets. Second, under its expansive injunctive relief provision, the DTSA includes important mechanisms for preventing anti-competitive activity in the labor market. Third, although an initial period of relative uncertainty may ensue as the federal judiciary takes time to develop jurisprudence interpreting the DTSA, a national standard should guarantee greater predictability of legal outcomes. Thus the DTSA should ultimately benefit U.S. businesses. Accordingly, businesses would do well to familiarize themselves with key aspects of the DTSA, including how it differs from the UTSA.


Unlike the UTSA, the DTSA allows complainants to seek an ex parte order of seizure under “extraordinary circumstances.” The bill does not define “extraordinary circumstances,” although it does provide that ex parte seizures are unavailable where a temporary restraining order or other equitable relief would be sufficient to prevent damages, thus offering a clue as to where federal judges might begin when interpreting the meaning of this term. The DTSA seizure provisions also require that the alleged wrongdoer be in “actual” possession of the assets to be seized (i.e., the assets containing the trade secret, such as hard drives or paper documents). If the DTSA becomes law, the ability to obtain an ex parte seizure order would provide business owners with a new and valuable weapon against costly trade secret theft and misappropriation.


Where an ex parte order is unavailable under the DTSA, complainants may still seek injunctive relief. However, unlike the UTSA, which also offers injunctive relief, the DTSA includes language providing that an injunction is improper and not issuable if it: (1) prevents a person from entering into an employment relationship, or if conditions placed on employment are not supported by evidence of threatened misappropriation, or (2) otherwise conflicts with an applicable state law prohibiting restraints on the practice of a lawful profession, trade, or business. The Senate added these safeguards to quell fears that employers might abuse injunctions as a means for doing a run around local laws limiting the scope of restrictive covenants in employment contracts, thus inhibiting the free flow of labor. Another substantial difference distinguishing the DTSA from the UTSA—one which is very favorable to trade secret owners—is that DTSA injunctions lack any apparent time limitations. An injunction issued under the UTSA terminates once the trade secret has ceased to exist or any commercial advantage has subsided: the DTSA does not provide any similar limitation on the duration of the injunction. In sum, the DTSA language improves upon the UTSA by enhancing the ability of business owners to benefit from injunctive relief while ensuring that employees are not unduly harmed.

...
Hits: 288
Rate this article entry:
1

downloadDisappointing some (i.e., Patent Owners) who were looking for a more significant changes to the rules governing inter partes review, post grant review, and/or covered business method review, on April 1, 2016, the Patent Office issued its Amendments to the Rules of Practice for Trials Before the Patent Trial and Appeal Board. About one year earlier, the Office hinted at the possibility of more sweeping proposals for change, but many of the more major proposals were not implemented and only more incremental change was adopted. Here are the five things every Patent Owner and Petitioner must know about the new ground rules governing the most seismic change in patent law in several generations – post grant administrative trials.


1. Expiring Patents May Not Be Subject to the Broadest Reasonable Interpretation Claim Construction Standard.


As we await the Supreme Court’s decision in In re Cuozzo Speed Techs., LLC, where it will decide whether the Office has been properly applying the Broadest Reasonable Interpretation (BRI) to post grant administrative trials, or whether it should have been applying a Phillips-type claim construction standard, the Office has implemented a rule that, for patents that will expire before the end of any trial, a Phillips-type construction can be implemented. 37 CFR §42.100 is amended to state that, if either party certifies that a patent will expire within 18 months from the petition being granted a filing date, it may be appropriate to treat the claims of that patent pursuant to a Phillips-type standard. If your post grant proceeding is directed to an old patent, keep in mind this opportunity to argue claim construction pursuant to Phillips, instead of BRI.


2. Patent Owner May Rely on Witness Testimony in its Patent Owner Preliminary Response.


Patent Owners often felt as if they were fighting with one hand tied behind their backs during the preliminary phase of a post grant proceeding because the Petition often contains testimonial evidence, but the Patent Owner Preliminary Response (POPR) was expressly required not to contain any such testimony. Now, 37 CFR §42.107 has been amended to eliminate the prohibition against presenting new testimony in a POPR. This change loosens the knot tying Patent Owners hand, but does not eliminate it entirely. While the Board can consider this testimony filed with the POPR, if a question of fact is created by such testimony, as compared to the Petition, the testimony shall be viewed in the light most favorable to Petitioner, solely for purposes of deciding whether to institute trial. 37 CFR §42.108. In addition, Section 108 is amended to make clear that Petitioner may seek leave to file a reply to the preliminary response, upon a showing of good cause.

...
Hits: 322
Rate this article entry:
1

FTC federal trade commissionIn the near future, the Federal Trade Commission is going to release the results of its study on patent assertion entities (PAEs)[1]. While it is very clear that we need additional information to understand the many complex business models that exist in the patent licensing world, the FTC’s study is unlikely to produce that information because of a few very critical flaws. What follows is an executive summary of my article, Sticks and Stones: How the FTC’s Name-Calling Misses the Complexity of Licensing-Based Business Models, published in the George Mason Law Review.


The premise of the FTC’s study is good. Most data on PAE activity is limited to publicly available information (i.e., litigation data), ignoring that the bulk of patent licensing behavior takes place before, and therefore outside, litigation. Using its 6(b) power, the FTC can obtain non-public data, including information about licensing requests, negotiations, patent acquisitions, and other activities that PAEs engage in. As the FTC noted, the study “will add significantly to the existing literature and evidence about PAE form, structure, organization, and behavior.” This information would be invaluable to those who study PAEs as well as to policy makers who remain concerned about PAE activity.


Specifically, the data that could be obtained through the FTC’s 6(b) study could do much to expose how much of the “patent troll” rhetoric is based in reality and how much is based on fear of what we do not know or understand. After all, it is always what is hidden that is the scariest. Although licensing of patent rights has occurred for hundreds of years, we simply do not understand its effects on innovation and the economy – in part because we do not understand patent licensing activity in general. While the FTC could have conducted a study that resulted in a “detailed understanding of the complex world of patent licensing firms,” the FTC’s study is instead “slanted in such a way that only part of the story will be uncovered. Worse still, the study has been shaped in a way that will simply add fuel to the anti-“patent troll” fire without providing any data that would explain the best way to fix the real problems in the patent field today.”
I describe two specific problems with the FTC’s study: one is definitional, the second is methodological.
First, the definition of PAE used by the FTC characterizes all PAEs as the same. But in treating patent licensing firms as a homogenous category, the FTC fails to recognize there is a wide spectrum of business models that exist under the licensing umbrella. It is “naïve and inaccurate” to lump them all together. The FTC’s study is explicitly “premised on a one-size-fits-all conception of patent licensing firms.” Where a well-designed study could shine an important light on the complex innovation ecosystem, the FTC instead squanders this opportunity from the outset by failing to recognize that not all PAEs are the same.

...
Hits: 936
Rate this article entry:
4

 

b2ap3_thumbnail_intellectual-property-rights.jpg

The signing of the “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (MVT)," by India along with Greece, France and the European Union on April 30, 2014 is a sweet victory for the IP regime. The Indian IP authorities would now have to create a set of limitations and exceptions to copyright rules in order to permit reproduction, distribution and making available of published works.

...
Hits: 2226
Rate this article entry:
6

 

b2ap3_thumbnail_protect_trade_secret.jpg

If you are a new and growing business, part of your success may be due to the fact that you employ proprietary techniques or have information that your competitors do not. Protecting this information is essential to your continued success. You wouldn't want a key employee to decide to start a business that directly competes with yours and take your company's proprietary information with her. This is but one of many scenarios in which your business could be hurt if the company's trade secrets are not protected.

...
Hits: 1875
Rate this article entry:
9

b2ap3_thumbnail_website-copyright.jpg

If your business is investing a lot of money on the content, graphics and overall design in developing its website, you should give some consideration to protecting your ownership of the copyright. Copyright law provides protection for original works of authorship, fixed in a tangible medium of expression. It would apply to written information on your website, to pictures and graphics, as well as to the over all design or "look and feel" of the website.

Copyright protection is vested in the author of the work. This brings up the question of who is the author of your website? This depends on how it was created. If you hired outside firms or individuals to create your website or various pieces of it, they are the authors of the parts that they have created. If your website or any parts of it were created in house by your own employees, then your business owns the copyright for those parts. So, if your business provides the written copy for your website, the business owns the copyright for that part. If an outside company provided graphics, they would own the copyright for that part.

...
Hits: 1768
Rate this article entry:
8

b2ap3_thumbnail_Patent-System-film.jpg

 Films are a risky business because much more is known about the quality and revenue potential of a film post-production than pre-production. Using rich data on the US film industry, this paper explores variation in property right allocations, investment choices, and film revenues to find empirical support for three predictions based on property rights theory. (1) Studios underinvest in the marketing of independent films relative to studio-financed films. (2) Because of underinvestment, independent films have lower revenues than comparable studio-financed films. (3) If production cost and marketing investment are complementary, underinvestment in marketing harms large-budget films more than small-budget films, making it more likely that large-budget films will be studio-financed. Kuppuswamy and Baldwin's paper may be the first to provide evidence that vertical integration affects the revenue of specific products through its impact on marketing investments in those products. Key concepts include:

  • Studio-financed films receive superior marketing investments compared to independent films.
  • The US film industry has two distinct property rights regimes: studio-financed films are produced and distributed by studios which take in the lion's share of revenue. In contrast, independent films are distributed by studios under revenue sharing agreements, which give studios 30-40% of the revenue stream.
  • Under either regime, the allocation of scarce marketing resources is determined by and paid for by the studio. Studio-financed films offer higher marginal returns to marketing investments than independent films.
  • Independent film distribution to theaters may be an institutional mechanism that allows studios to adapt to post-production information about the value of their own films vs. outside opportunities. This in turn justifies ex ante investment in the production of independent films (especially those with small budgets) despite their dampened revenue expectations
  • source: Harvard Business School
  • San Jose Patent Attorney

 

...
Hits: 1597
Rate this article entry:
7

b2ap3_thumbnail_whitehouse619pxhedimg.jpg

The White House isn't relying solely on legislative measures to try and curb patent trolls; it's also giving the trolls' targets some online resources to defend themselves. To start, it just launched a USPTO website that tells victims what to do if they're served with infringement notices or subpoenas. Meanwhile, a future effort will crowdsource prior art to thwart suits over patents that should never have been granted in the first place. There's still more work ahead in the legal realm, including pro bono defense lawyers and technology training for patent examiners. However, the new online tools just might give smaller companies the know-how to fight back against trolls that prey on their lack of information.

Hits: 1817
Rate this article entry:
7

The United States government claims 100% ownership over all your DNA and reproductive rights. This astonishing revelation has emerged from the fact that the U.S. Patent and Trademark Office claims the power to assign ownership of your DNA to private companies and universities who apply for patents on your genes.

To date, more than 4,000 genes have been assigned ownership to corporations and universities by the U.S. patent office. Such an assignment of ownership proves that the government believes it owns 100% of all human genes -- you cannot transfer ownership of something unless you first own it yourself.

To date, 20 percent of your genetic code is owned by someone else. About two-thirds of these patents belong to private companies, and one-third belong to universities. The company that owns the most patents is called Incyte, a drug company based in California which "owns" the patents on 2,000 human genes.

Although you have never agreed to sell your body to a corporation, a multitude of corporations now claim ownership over every cell in your body. That ownership makes you a slave to their patent demands, and patent "troll" lawyers are some of the most vicious, blood-sucking demons on the planet who will threaten to drag you into a million-dollar court proceeding if you don't pay them money. Right now, at this very minute, dozens of corporations can lay claim to your body, and those claims will be 100% upheld in the U.S. court system.

Story continues below, following this infographic:
b2ap3_thumbnail_Infographic-Who-Owns-Your-DNA.jpg

Genetic enslavement is here

Virtually no one is aware of the fact that 20 percent of their genes are currently "owned" by corporations and universities. This ownership is, of course, a form of genetic enslavement that seeks to dominate and control all humans. How, exactly?

Consider this: When you have a child, you are replicating your genetic code. Because your genetic code is 20% patented and "owned" by someone else, the act of having a child is, by definition, an act of genetic piracy that you are committing in violation of the law.

These companies that "own" your genetic code can, if they wish, demand you pay royalties for every child you create. They can even demand that you pay them royalties for your own body replicating cells during processes like healing skin wounds or generating new red blood cells. Your body, in fact, replicates millions of cells each day, causing you to violate the U.S. government's laws on the theft of intellectual property. You are the criminal!

b2ap3_thumbnail_No-Patents-on-Genes-v1.jpg

Corporate patents on human genes - a violation of human rights

This all comes down to a fundamental human rights issue. This is about human rights, women's rights and reproductive rights. The U.S. Patent office stands in violation of human rights, selling out the bodies of men and women to corporate interests that stand to generate trillions of dollars in profits through DNA testing and treatments.

People like Angelina Jolie actually betray women on this issue by pushing false fear that drives profits into the BRCA1 gene testing industry -- an industry that exploits women's bodies for profit. Jolie is using her celebrity status to spread huge fear about the BRCA1 gene mutation, causing women to rush into their doctor's offices to get tested... at $3,000 - $4,000 per test thanks to the royalty fees paid to the corporate patenth older.

The U.S. Supreme Court is poised to announce a decision on the issue of gene patenting in just a few weeks (which explains the timing of the recent media push we've all witnessed). If the Supreme Court rules against these patents on human genes, it would mean a multi-trillion-dollar loss to the human gene patenting industry which hopes to collect ongoing royalties on gene testing and gene research for the next thousand years.

By the way, the very idea that the Supreme Court can "rule" on this issue is also a fraud. No court has ownership over your genetic code. No government authority has a higher power than the Creator of the universe and the creative, life-giving forces that brought you into being. Your DNA is yours alone, and any claim over it is null and void from the start.

...
Hits: 1479
Rate this article entry:
7

b2ap3_thumbnail_Intellectual_Property.jpg

An ‘idea’ can be almost anything original; a brand, an invention, a design, a song or some other intellectual creation. These days, commercial success is very much driven by intellectual ideas, as a result, Intellectual Property (or IP for short) is becoming increasingly important.

Intellectual Property Law not only protects innovation, creativity and enterprise, it also means an idea or creation is actually owned by someone (normally the creator or creators) and as such, can be bought and sold.

...
Hits: 1548
Rate this article entry:
11

nature Did you know that if you have children you are an international criminal? You have violated intellectual property laws by infringing on the copyrights of companies that have been granted patents on the human genome. You have replicated that gene sequence by having children without the permission of the owners of those gene sequences. As bizarre as it sounds, it's absolutely true: having children is a violation of patent law. 

This has come about because those at the U.S. Patent Office seem to have lost their collective minds. They have allowed companies and individuals to gain ownership of intellectual property that should never have been granted to a private organization or individual. Some things belong to nature -- like the gene sequence of a human being. Man didn't create it. There's no Einstein who created the human gene sequence, put together some DNA and made human beings. People are not an invention; they are a creation.

Intellectual property, and patents in particular, are intended to cover inventions; things that we were the first to create, not something we stumbled across because we have the right equipment to detect them in the natural world. Clearly, genes are already in existence. We did not invent them; nature did. And yet, people and organizations have been granted patents on seeds from nature. 

...
Hits: 1624
Rate this article entry:
11

Waterloo, ON: As technology continues to evolve at a breathless pace, patent infringement claims and lawsuits have become a fairly normal occurrence. Consequently, two new patent infringement cases against Blackberry manufacturer Research in Motion (RIM), a Canadian company, appear not to be rattling investors in the least. In fact, the Canadian Press (CP) reported on 2/19/10 that there are "probably" about four or five different lawsuits against RIM at any given time.

b2ap3_thumbnail_iStock_000007221433XSmall.jpgOne of the latest involves a claim by Kodak that the Blackberry maker—based in Waterloo, Ontario—has infringed on Kodak's intellectual property as it relates to digital camera technology used in the Blackberry Storm. CP reports that Kodak accuses Apple of similar infringement in its iPhone.

A Nebraska company has also filed a complaint against RIM alleging infringement on a patent related to authentication systems.

...
Hits: 1543
Rate this article entry:
10

b2ap3_thumbnail_silicon-valley-intellectual-property-lawyer-13.jpg

In a sign of the growing struggles that judges face applying old laws to new technology, the U.S. Supreme Courtthis year is hearing the highest proportion of intellectual propertycases in its history.

In the court's nine-month term ending in June, the justices will decide eight cases onintellectual property issues: six on patent law, two of which were argued on Wednesday, and two on copyright law.

...
Hits: 1478
Rate this article entry:
10

b2ap3_thumbnail_IP-Lawyer-in-san-jose-1.jpgThere’s an event going on today at Union Station in Kansas City, Missouri called The Resilient Summit.  It is described as an examination of the “Collaborative Economy,” which is being called  “a key trend that’s redefining established business models, empowering consumers and driving the next phase of social.”   How can Collaborative Economy have anything to do withIntellectual Property?

As it turns out, plenty.

The Collaborative Economy is a term we’ve seen cropping up with more and more frequency in the commercial and social media.  The Collaborative Economy is described as an economic system where consumers prefer to share, rather than purchase, goods and services.

...
Hits: 1520
Rate this article entry:
8

b2ap3_thumbnail_silicon-valley-intellectual-property-lawyer1.jpg

There has long been an interesting intersection between IP law and antitrust law. Recent court decisions and regulatory action have highlighted the need for IP lawyers to be more aware than ever of ensuring that their commercial activities do not violate antitrust rules. So-called pay-for-delay patent infringement settlements in the pharmaceutical industry have come under particular scrutiny, and the US Supreme Court’s ruling on such arrangements could impact licensing arrangements in the technology sector. In the coming months, antitrust regulators will be putting the activity of patent assertion entities under the microscope. In this dynamic area of the law, it is important that IP owners are aware of past guidance provided by the Federal Trade Commission and the Department of Justice as well contemporary application of antitrust law by the country’s courts.

Source : awards.concurrences.com

Hits: 1471
Rate this article entry:
8

b2ap3_thumbnail_San-Jose-Intellectual-Property-Lawyer-10.jpg

As Americans wrap their minds around the expenditures within 2014 defense budget, including the controversial 1.5 billion dollars in aid to Egypt, many wonder if we spend too much defending those who oppose us. While military opposition is well known, foreign governments – including allies who receive U.S. financial support – are increasingly waging attacks on America’s economic interests through foreign intervention into the free market by way of government sponsored patent trolls (GSPTs).

Take, for instance, Taiwan.

...
Hits: 1382
Rate this article entry:
7

While the American public’s and the media’s attention has been focused on the seemingly endless cycle of political dramas that unfold every day–the impending fight over the debt ceiling, the potential government shutdown, the debate over the budget deficit and our long-term fiscal problems, an international crisis in Syria that was ineptly handled by American leadership–the US has quietly been involved in critical trade negotiations that, when codified, may fundamentally alter how we do business with certain parts of the world.

b2ap3_thumbnail_Intellectual-Property-Lawyer-in-San-Jose-9.jpg Negotiations over the Trans-Pacific Partnership Agreement (TPP), a free trade agreement currently being negotiated between the United States and 11 other countries located along both the Eastern and Western sides of the Pacific, have been ongoing since 2008, but talks have recently entered their 19th round.

As the U.S. participates in these international trade agreement negotiations, it is of crucial importance that we remember that patent protection–both domestic and international–is vitally important to encouraging medical innovation both at home and abroad, and further, to patients hoping for treatments.

...
Hits: 1416
Rate this article entry:
8

by Hong Luo

EXECUTIVE SUMMARY — How completely should an innovator develop his idea before selling it? HBS assistant professor Hong Luo addresses this question in a theoretical framework that links the sales stage to the innovator's "observable quality." She uses the context of Hollywood movie script writing-looking at whether it's better to pitch the mere idea for a film or to write the entire screenplay and then try to sell it "on spec." Key concepts include:

  • Pitching an idea before a script is written can be advantageous in that it affords the opportunity to get early feedback from a prospective buyer, and saves time for the writer if the buyer thinks the idea is worthless. However, pitching comes with the risk of expropriation.
  • Lesser-known, inexperienced writers are excluded from the market for pitches, forcing them to either fully develop the idea or drop it entirely.
  • Writers who have a choice in the matter tend to sell their better ideas on spec-turning them into fully-formed screenplays before introducing them to prospective buyers. But they will pitch their worse ideas at an early stage.

Download the Full Text by Hong Luo - Harvard Business School

...
Hits: 1408
Rate this article entry:
7

IP-rights

Don't let intellectual property theft and business sabotage steal your great idea.

Entrepreneurs lose millions of dollars each year due to intellectual property theft and business espionage. Here are five tips to make sure your idea is protected: 

...
Hits: 1428
Rate this article entry:
12

Posted by on in General Topics

Definition: The ownership of ideas. Unlike tangible assets to your business such as computers or your office, intellectual property is a collection of ideas and concepts.

There are only three ways to protect intellectual property in the United States: through the use patents, trademarks or copyrights. A patent applies to a specific product design; a trademark to a name, phrase or symbol; and a copyright to a written document. All three methods have limitations--there's no one perfect way to protect an idea. 

Copyright Protection

...
Hits: 1425
Rate this article entry:
15