IPRs and Sovereign Immunity

IPRs and Tribal Sovereign Immunity On July 20, 2018, the Federal Circuit held in Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals, Inc. that Native American tribes cannot assert tribal immunity to avoid inter partes review (IPR) proceedings. IPR proceedings, enacted under the America Invents Act and conducted by the Patent Trial and Appeal Board (PTAB), allow parties to challenge patent claims’ novelty or nonobviousness over certain forms of prior art. Pharmaceutical company Allergan sued competitor Mylan Continue Reading →

Return Mail v. USPS: Can the Government Petition for Post-Issuance Reviews?

A few weeks ago, on February 19th, 2019, the Supreme Court heard oral arguments in Return Mail, Inc. v. United States Postal Service. 868 F.3d 1350 (Fed. Cir. 2017), cert. granted in part sub nom., 139 S. Ct. 397 (Oct. 26, 2018) (No. 17-1594). The question before the Court: whether the government qualifies as a “person” capable of petitioning for the institution of post-issuance patent reviews under the AIA. See 35 U.S.C.  §§ 311-19 (IPR); Continue Reading →

USPTO Attorney Fees Go Up to The Supreme Court

On March 5th, 2019, the Supreme Court granted writ of certiorari in Iancu v. NantKwest Inc. The question for the Court is whether the phrase “[a]ll the expenses of the proceedings” in 35 U.S.C. §145 includes the salaries of personnel (e.g., attorneys and paralegals) employed by the U.S. Patent and Trademark Office (“PTO”) to defend against the suit. Options for Judicial Review of the Patent Trial and Appeal Board There are two ways for patent Continue Reading →

Chinese IP Courts

The patent battle between Apple and Qualcomm is garnering attention all over the world. But no court ruling has drawn more attention than the preliminary injunction granted to Qualcomm by the Fuzhou Intermediate People’s Court in China in November 2018. However, why did Qualcomm bring their claims at the Fuzhou Intermediate Court? Generally speaking, there are four tiers of courts in the Chinese legal system. From the highest to the lowest level, they are: the Continue Reading →

Has a Federal Circuit Decision Ended the CRIPSR/Cas Patent Battle?

On September 10, 2018, the U.S. Court of Appeals for the Federal Circuit’s decision in Regents of the University of California v. Broad Institute, Inc. may have ended perhaps the most heated biotech patent battle today: who owns the fundamental patents for the powerful CRISPR/Cas gene-editing tool. Unless University of California, Berkeley (UCB) successfully appeals the decision to the U.S. Supreme Court, the Broad Institute will keep its patents on CRISPR/Cas technology.   History of Continue Reading →

Automated Notices for Copyright Infringement: Pitfalls and Remedies

Background of Notice and Takedown Since the birth of the internet, online service providers (OSPs) have butted heads with copyright holders over whether OSPs should be responsible for copyright-infringing material posted by their users. Should Google be liable for infringement when it provides links to websites that post photographs without a copyright license?[1] Should YouTube owe damages for hosting a video that plays a song or shows a clip from a movie protected by copyright?[2] Continue Reading →

Internet Piracy: The Effects of Streaming Services and the Digital Marketplace

Internet piracy was thought to be an unstoppable blight on the digital market as recently as five years ago. As quickly as music, movie, and video game companies could shut down pirates and pirate sites, new ones would appear. The notorious Pirate Bay website, for example, is practically indestructible, having survived being forcibly taken down almost a dozen times. Entertainment and software companies began to prophesize the end of their industries due to lost profits Continue Reading →

The Next Rembrandt: Originality and Authorship of AI Generated Works

In recent years, the news has been flooded by innovations in artificial intelligence and its ability to create a diverse range of creative content. AI has produced music, poetry, paintings, and even sci-fi films. Some of the poetry is so “real” that it has even fooled humans into believing that it was generated by a human writer. As the list of creative works continues to grow, so does the elephant in the room: who owns Continue Reading →

January 2017 Amendment to the WTO Agreement on Trade-Related Intellectual Property Rights

In 1948, General Agreement on Tariffs and Trade (“GATT”) established the rules for international commerce, with agreements signed by governments of the majority of global trading nations. The World Trade Organization (“WTO”) sprang from the de facto negotiating forum under the same name, GATT, through the Marrakesh Agreement Establishing the World Trade Organization. While GATT focused primarily on liberalizing the trade of goods, the WTO Agreement on Trade-Related Intellectual Property Rights (“TRIPs”) extended to cover Continue Reading →

Is the New IPR Investment Strategy Bust?

An October 2016 report estimates the number of hedge funds at a staggering 11,000, managing an aggregate of $3 trillion or more. Each firm seeks ways to make a profit for investors and managers through a variety of ways – including conventional methods like identifying certain market-influencing events, mispriced stocks, and betting that share prices will either rise or fall. Dallas-based Hayman Capital is one such firm, led by billionaire investor J. Kyle Bass. According Continue Reading →