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San Francisco Intellectual Property Law Blog

Can copyrights be retroactive?

In some situations, the phrase "Better late than never" is appropriate. Registering a piece of intellectual property is not one of them. While it might seem rational to be make the claim that a photograph, once taken, is a static piece of artistic expression. As such, it would seem logical to argue that any use of it without permission constitutes a violation of the photographer's work.

That is not necessarily true as one legal case highlights. And the lesson to glean from the matter, according to many legal observers, is that there is value for a photographer, or any creative individual, to establish an enduring relationship early with an intellectual property attorney to obtain legal protections from the outset and to defend them to the maximum extent allowed over time.

Can the inventor of a patented item later challenge the patent?

The idea of a scenario as presented in the blog title might seem silly, but the reality is that, based on legal decisions made by the Patent Trial and Appeal Board and more recently by the U.S. Court of Appeals for the Federal Circuit, it could happen. In fact, it has, specifically in the context of inter partes review (IPR).

If you have read our previous posts about this area of patent adjudication, you know that IPR has been the center of some of contention since it's institution under the America Invents Act of 2012 (AIA). But earlier this year that the U.S. Supreme Court ruled that IPR does not violate patent holder's rights to due process and result in patents revoked without going federal court oversight.

Effective trademark defense can require diplomacy

It is easy to have a "That's mine" attitude when it comes to intellectual property. The value inherent in a given piece of IP is often intangible and one of the few ways of making it tangible is by making sure the rights you secured from the U.S. Patent and Trademark Office are strongly protected. On the flip side, if you're wrongly accused of IP infringement, developing appropriate legal responses is required.

The keyword in that last sentence is, "appropriate." Legal action can take many forms. Finding the most effective one can demand finesse. You have a right to protect your IP assets and reputation, but if you take your efforts to the extreme, it can backfire, delivering a blow to a company's brand and perhaps the bottom line.

US implications of new European software patent guidelines

As of the beginning of November, regulators in Europe have new guidelines for how they assess and grant requests for patents. These updates by the European Patent Office have come to be expected annually. Analysts report that the greatest changes this time around deal with computer-implemented inventions (CII) – effectively, computer software.

According to more than one analysis, including one in The National Law Review, indications are that CII patent applications that rely significantly on claims related to artificial intelligence (AI) and machine learning (ML) "may be treated as largely unpatentable." At the same time, some technology industry observers express the view that the changes could also influence how the U.S. Patent and Trademark Office does its work, the upshot being new challenges in managing computer-related intellectual property issues.

2018 Nobel economy prize highlights value of patents

Is inventiveness simply the result of clever thinkers who get notions and run with them, or is it something more? While the former is clearly valuable in furthering innovation, many observers offer that the latest Nobel Prize for Economics reflects a view that we believe to be equally important. That the most valuable innovations follow from solid research and development supported by the protections provided by strong intellectual property rights law.

The joint winners of the prize were Yale professor William Nordhaus and New York University's Paul Romer of the Stern School of Business. They won recognition for their separate work in macroeconomic analysis, looking at factors contributing to nations' economic growth.

The latticed IP infrastructure that supports daily technology

Do you remember the VHS-Betamax war? This was the epic struggle between home video recording technologies. By most standards, Sony's Betamax format was considered the best. In the end, however, VHS (Video Home System) claimed the field. Key in the fight was the fact that the formats were device-exclusive. Betamax tapes didn't run on VHS machines and vice-versa.

Today, technology evolution has brought us to where our video (and audio) entertainment streams to us online through various smart devices. It doesn't matter whether your tool is from Amazon, Apple, Samsung or any of the Chinese companies that dominate the global market. What makes this possible is a combination of two fundamental elements of intellectual property law, patents and licenses.

Can you put a patent on love?

The patent litigation between dating app sites Tinder and Bumble has raised the stakes in digital patent protection. Tinder’s parent company, Match, filed suit against Bumble over the concept of swiping left or right. Match claims Bumble infringed on Tinder's intellectual property by using the concept of swiping on its dating app. Bumble claims the concept of swiping left or right is just an abstract idea. You cannot patent an abstract idea under U.S. law.

Patent law in the internet age

PTAB adopts new claims construction review standard

Love it or hate it, inter partes review (IPR) is now a judicially endorsed fixture in the Patent Trial and Appeal Board's (PTAB) toolbox. We wrote about this in the first September post on this blog, noting that the U.S. Supreme Court upheld the constitutionality of this administrative form of review in resolving disputes over the validity of granted patents and claims of alleged patent infringement.

This post looks at another development on the PTAB front; the publication in the Federal Register announcing adoption of a new rule regarding the standard that reviewers will use to examine issues related to so-called claim construction in patent and other dispute cases. The new rule takes effect Nov. 13 and what it means is that the PTAB will now begin using the same standard as one applied by federal courts and the International Trade Commission (ITC).

The right way to protect a copyright under the DMCA

In one of our recent posts, we outlined the four situations under which online service providers can avoid monetary liability if some user infringes on another's copyrighted material. Among these so-called safe harbor provisions of the Digital Millennium Copyright Act (DMCA) is the takedown.

If the provider swiftly acts to remove infringing material after being notified, that gives the provider a shield against having to pay financial damages to the copyright holder. As the post also highlighted, though, certain providers – those that facilitate the storage of materials on their systems or direct users to information through search engines or directories – must register a designated takedown agent with the government, and make the information available to the public. But that is not all.

Solid IP protection requires focus on the fundamentals

"Star Trek" fans appreciate the dangers of being a red shirt. In that universe, ship security personnel wear red and crewmembers in that color are the most likely to die on away missions. The trope has spurred a whole collection of paranoia jokes?

Security and paranoia seem to go hand in hand. And some security measures might come off as being rather hardnosed. But when it comes to protecting a company's intellectual property, we think most would agree there is no room for compromise. IP assets, while seemingly intangible, often are a business's most valuable resources and fear someone is out to get them is justified.

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