Preclusive Effect of TTAB Likelihood of Confusion Rulings to be Determined by The Supreme Court

Written by Daniel DeLuca B&B Hardware, Inc. v. Hargis Industries, Inc. Case Summary: The trademark dispute between B&B Hardware, Inc. (“B&B”) and Hargis Industries, Inc. (“Hargis”) has been ongoing for over a decade. Plaintiff B&B registered their SEALTIGHT mark with the PTO in 1993. B&B had produced fasteners for various uses within the aerospace industry under this mark for a few years before registration. Hargis produces self-drilling screws for which they tried to register the mark SEALTITE in 1996. Hargis was ultimately unsuccessful in its attempt to have the B&B mark canceled. The USPTO published the SEALTITE mark for opposition in 2002. Shortly thereafter, B&B instituted an opposition claiming that there was likely to be confusion between the proposed Hargis mark and their own SEALTIGHT mark. By the end of the process, the TTAB found that the marks were confusingly similar and ultimately sustained B&B’s opposition and denied the Hargis mark registration. Shortly before this result, B&B had initiated a suit

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Updated Guidelines on Patent Eligible Subject Matter

Written by Daniel DeLuca In December 2014, the United States Patent and Trademark Office (USPTO), in view of recent case law and comments, updated the guidelines that their examiners use to determine subject matter eligibility under 35 U.S.C. 101. Following the major changes found in the June 25, 2014 update (incorporating Alice Corp. v. CLS Bank International) and the March 4, 2014 update (incorporating Mayo Collaborative Services v Prometheus Laboratories, Inc. and Association for Molecular Pathology v. Myriad Genetics), the most recent update contains noticeably less change. The most notable change in the December guidelines concerns the analysis for products of nature. For nature-based products one must compare the nature-based limitations and their naturally occurring counterparts in their natural state. If after this comparison, a “markedly different” characteristic was found, then the product will be patent eligible. Under the March 2014 Guidelines, only structural changes were sufficient to show a marked difference. The most recent December 2014 guidelines have revised

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Hague Agreement Regarding Industrial Designs (Design Patents) Taking Effect in US on May 13, 2015

Written by Tom Matikainen The United States has deposited its instrument of ratification to the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs on February 13, 2015 with the WIPO.  The Hague Agreement took effect on May 13, 2015, and enables inventors of industrial designs to file a single standardized application with the USPTO to apply for a design patent in each of 62 territories that are members of the Agreement.  Such an Agreement will make it so much easier for inventors to seek design patent protection in many countries outside the US, thereby reducing costs and time to acquire foreign protection.  Plus, international design patent applications filed on or after May 13, 2015 will have a term of 15 years, instead of the current 14 year term

Does Innovation lead to Prosperity for All?

By Evan Jensen The modern industrialized economy is a fascinating experiment because never before in history have so many people been so productive. The scientific method, objective metrics of efficiency, mass production, information technology, flight, the list goes on of new capabilities and methods that have arisen fairly recently on the timescale of human civilization. But today’s economy is so productive that it suffers from a surplus of workers, making it difficult for many people to earn a living. Which means we have to ask the question- does innovation lead to prosperity for everyone,[1] or does innovation cause centralization of wealth because of automation and offshoring?

Game Theory and Patent Enforcement

By Evan Jensen The patent system is a complex and sometimes controversial aspect of the American economic, technological, and legal systems. I will attempt to explain why both sides of the controversy; both the ‘pro-patent’ and many of the so-called ‘anti-patent’ advocates are actually substantially in agreement, but prefer different strategies for dealing with collective action problems.

The Aereo Decision

By Evan Jensen The Aereo decision gives the impression of the Supreme Court twisting itself into knots to find a reason why Aereo is infringing. And ultimately the Court decided to help broadcasters kill off the competition, rather than push broadcasters to innovate. On June 25 the Supreme Court’s decision in the ABC v Aereo case came down.[1] The Supreme Court sided with ABC and the other broadcasters against Aereo. In its opinion, the Court held that Aereo’s transmissions are public performances and that therefore Aereo is infringing on copyrights owned by ABC and the other petitioners.

The Weird World of Software Startups: Where Everything’s Made Up and the Patents Don’t Matter

By Evan Jensen Today’s high tech industry is characterized by the extremes of modern business. Massive tech giants like Google and Microsoft sit atop the industry, with a menagerie of startups popping up all over the place trying to break into the market. For large companies patents are akin to nuclear weapons. For a large company like Apple or Samsung the strategic usefulness of the patent tremendously outweighs the cost of the application, and the large company can file for thousands of patents. A large patent portfolio opens up a world of business and litigation options because of the large scale of the company’s operations and the long time scale that the large company operates within. But for fledgling startups, like insects living in their own microcosm while giants stride by, patents don’t necessarily serve the same purposes. In the world of tech startups patents behave very differently.

The Patent Wars

By Evan Jensen Patents protect the lifeblood of tech companies- the technology that powers their products. Large tech companies with complex products need many patents in order to protect their technology. But huge patent accumulation for defensive purposes leads to a nasty impasse where even if there were legitimate infringement, it would be irrational to sue because it is just too difficult and dangerous. Large companies can use patents as weapons to attack their competitors. And when those companies own a massive stockpile of patents that cover critical technology in consumer products, a patent fight can become a knock-down, drag-out fight where the winner takes home all the marbles. In some respects a large patent stockpile resembles a nuclear weapon stockpile.

Building on Abstract Ideas: Alice v CLS Bank

By Evan Jensen In its much-anticipated Alice v CLS Bank decision the Supreme Court held that Alice’s software patent was patent-ineligible subject matter under §101. But in its decision the Supreme Court seems to have blended a §101 analysis with a §103 analysis. The Court seems to infer that well-known ideas, such as methods that are fundamental to modern economy, are abstract and therefore patent-ineligible under §101. There is no debate that abstract ideas are not patentable subject matter. No one may claim exclusive rights to the idea of addition, or of binary-decimal conversion, or any other generic abstract mathematical or conceptual idea. To allow a patent on an abstract idea would preempt everyone else from using that idea, greatly discouraging innovation, which is contrary to the primary goals of the patent system. The issue is which software claims, or whether software claims in general, are made patent-ineligible by the Alice decision.

The Difficulties Dealing with Nanotechnology in the World of Patentable Technologies

By Afshein “Ash” Ghezelbash Among the emerging technologies that affect our daily functions, nanotechnology is at the forefront of making a huge impact in our society. Breakthroughs in nanotechnology create new materials that are more robust, lighter and thinner than existing ones, which may be of great interest in the fields of aircraft and space technology, construction, clothing, and biotechnologies. But what is nanotechnology? Nanotechnology is the creation of machines that operate at a miniscule scale, the ‘nanoscale,’ approximately between 1 and 100 nanometers, or 1 to 100 billionths of a meter. Nanotechnology is applied to a variety of different products. What the future holds is limitless. Initially nanotechnology was used for medical purposes to prevent the growth of bacteria, germs, and fungi especially on surgical tools. Additionally, nanotechnology could potentially hold the key to future heart attack and cancer treatment by repairing or reconstructing new tissues in the human body.