Intellectual Property Enforcement and Litigation in China; American Bar Association (ABA) webinar, Thursday, March 8, 2018

American Bar Association (ABA) webinar; Intellectual Property Enforcement and Litigation in China

• 

1.50 CLE

Format:

Webinar

Date:

March 8, 2018

Time:

1:00 PM - 2:30 PM ET

Add to Calendar

Credits:

1.50 General CLE Credit Hours

Speaker(s):

Scott Palmer

Sponsor(s):

ABACLE

Section of Dispute Resolution

Section of Intellectual Property Law

Section of International Law

The need to protect intellectual property in China is a concern that all brand owners, innovators, content creators, and artists should take into consideration. Join IP attorney Scott Palmer as he advises companies and in-house attorneys on protecting and enforcing intellectual property, and taking advantage of recent developments in China.

Our distinguished panelist will discuss:

• Recent developments of note in the IPR space
• Establishing and perfecting your rights in China
• Selecting the best course of action—administrative, judicial, and/or criminal recourse
• Warning letters and negotiating with infringers
• Obtaining injunctions and claiming monetary damages through litigation
• Evidence issues, procedural peculiarities, and best practices for litigating IPRs in China
• Customs and border control protection

Adidas Prevails in ‘Three Stripes’ Trademark Case; Reuters via New York Times, March 1, 2018

Reuters via New York Times; Adidas Prevails in ‘Three Stripes’ Trademark Case

"A European court has sided with the German sporting goods maker Adidas on Thursday in its long-running attempt to block two trademarks for parallel stripes on shoes filed by a Belgian footwear company, saying they infringed on its own iconic three-stripe design."

Are Open Data Efforts Working?; Government Technology, March 2018

Adam Stone, Government Technology; Are Open Data Efforts Working?

"Data managers say that in their fondest dreams, they’ll do more than count data sets and track clicks. They are looking for metrics that connect open data to social outcomes.

Are babies healthier because of open data? Are streets safer? That’s the holy grail of open data metrics, and data chiefs from cities large and small agree that we’re not there yet. In these still-early days of open data, there’s no algorithm that will cleanly and clearly describe the impact of open data on society at large.

“There needs to be more conversation at the national level about how to measure success, especially on the public side,” Roche said. “Maybe there needs to be a standard set of metrics across cities to let us benchmark the use of open data. It’s something we all need to be exploring.”"

Elon Musk quits AI ethics research group; BBC, February 22, 2018

BBC; Elon Musk quits AI ethics research group

"Technology billionaire Elon Musk has quit the board of the research group he co-founded to look into the ethics of artificial intelligence.

In a blog post, OpenAI said the decision had been taken to avoid any conflict of interest as Mr Musk's electric car company, Tesla, became "more focused on AI".

He has been one of AI's most vocal critics, stressing the potential harms."

How to Protect Your Intellectual Property; Entreprenur, March 2, 2018

Jessica Abo, Entrepreneur; How to Protect Your Intellectual Property

"If you’re just starting your business, it’s important to protect your assets. Jessica Abosat down with Scott Sisun of Sisun Law to help you understand what marks you need and how to protect them."

Forget tariffs, China's alleged intellectual property theft a bigger threat to market: Analyst; CNBC, March 2, 2018

Ingrid Angulo, CNBC; Forget tariffs, China's alleged intellectual property theft a bigger threat to market: Analyst

"Trump has said in the past that he's considering a big fine as part of the probe into China's alleged theft.

While Trump did not specify what he meant by a "fine" against China, the 1974 trade law that authorized an investigation into China's alleged theft of U.S. intellectual property allows him to impose retaliatory tariffs on Chinese goods or other trade sanctions until China changes its policies.

If the Chinese are found guilty, [chief investment strategist at ClearBridge Investments Jeffrey] Schulze fears that the nation will retaliate."

China has shot far ahead of the US on deep-learning patents; Quartz, March 2, 2018

Echo Huang, Quartz; China has shot far ahead of the US on deep-learning patents

"China is outdoing the US in some kinds of AI-related intellectual property, according to a report published in mid-February by US business research firm CB Insights. The number of patents with the words “artificial intelligence” and “deep learning” published in China has grown faster than those published in the US, particularly in 2017, the firm found. Publication is a step that comes after applications are filed but before a patent is granted. The firm looked at data from the European patent office.

When it comes to deep learning—an advanced subset of machine learning, which uses algorithms to identify complex patterns in large amounts of data—China has six times more patent publications than the US, noted the report (pdf, p.7)...

...[W]hen it comes to patents using the term “machine learning,” often conflated with the term AI, China still lags behind. Searching patents for “machine learning” found the US had 882 related patent publications while China had 77 in 2017."

Professor Tells UN, Governments Of Coming “Tsunami” Of Data And Artificial Intelligence; Intellectual Property Watch, February 21, 2018

William New, Intellectual Property Watch; Professor Tells UN, Governments Of Coming “Tsunami” Of Data And Artificial Intelligence

"[Prof. Shmuel (Mooly) Eden of the University of Haifa, Israel] said this fourth revolution in human history is made up of four factors. First, computing power is at levels that were unimaginable. This power is what makes artificial intelligence now possible. The smartphone in your hand has 1,000 times the components of the first rocket to the moon, he said, which led to a chorus of “wows” from the audience.

Second is big data. Every time you speak on the phone or go on the internet, someone records it, he said. The amount of data is unlimited. Eden said he would be surprised if we use 2 percent of the data we generate, but in the future “we will.”

Third is artificial intelligence (AI). No one could analyse all of that data, so AI came into play.

Fourth is robots. He noted that they don’t always look like human forms. Most robots are just software doing some function...

 Eden ended by quoting a hero of his, former Israeli Prime Minister Shimon Peres, who told him: “Technology without ethics is evil. Ethics without technology is poverty. That’s why we have to combine the two.”

Eden challenged the governments, the UN and all others to think about how to address this rapid change and come up with ideas.

He challenged the governments, the UN and all others to think about how to address this rapid change and come up with ideas. Exponentially."

Dannon Defector to Chobani Ignites Yogurt Trade Secrets Battle; Bloomberg Business, February 21, 2018

Chris Dolmetsch, 

Bloomberg Business; Dannon Defector to Chobani Ignites Yogurt Trade Secrets Battle

"Federico Muyshondt is accused of stealing details of Dannon’s business strategies, plans for future products and customer lists before resigning in January to take a position with Chobani, according to a complaint filed Wednesday in federal court in White Plains, New York.

The suit illustrates how competitive the yogurt business has become and highlights the proliferation in the corporate world of non-compete clauses in workers’ contracts that restrain them from going to work for rival employers. Just last week, International Business Machines Corp. called foul on Microsoft Corp.’s hiring of its former chief diversity officer in a case that elevated the recruiting and promotion of a diverse workforce to the level of protecting proprietary technology."

Nearly Every English Word Is Trademarked; How Stuff Works, February 26, 2018

John Perritano, How Stuff Works; Nearly Every English Word Is Trademarked

"The two professors, Barton Beebe and Jeanne C. Fromer, looked at the 6.7 million trademark applications filed at the U.S. Patent and Trademark Office between 2003 and 2016. They then studied a database of the 100,000 most frequently used words in American English — the Corpus of Contemporary American English. They also reviewed a U.S. Census list of the 151,672 most frequently occurring surnames in the United States.

What they found will knock your socks off, which, by the way is also trademarked. "The data present compelling evidence of substantial word-mark depletion," they write in the Feb. 9, 2018 issue of the Harvard Law Review, "particularly with respect to the sets of potential marks that businesses prefer most: standard English words, short neologisms that are pronounceable by English speakers and common American surnames."...

The result of so many trademarks is that new businesses have to strain their noggins (yes, variations of "noggin" are already taken) to come up with monikers that aren't already claimed, or resort to what's called a "parallel registration." That's when two companies use the exact same name as long as it won't confuse consumers (for example, Delta Faucets and Delta Airlines)."

Oscar contender 'The Shape of Water' facing copyright infringement lawsuit; Los Angeles Times, February 26, 2018

Nardine Saad and Christie D'Zurilla, Los Angeles Times; Oscar contender 'The Shape of Water' facing copyright infringement lawsuit

"Fox Searchlight, Guillermo del Toro and others associated with the Oscar contender "The Shape of Water" are facing a copyright infringement lawsuit brought by the estate of Pulitzer Prize-winning playwright Paul Zindel."

More small businesses are bringing claims to the Intellectual Property Enterprise Court (IPEC), according to a new report.; Scottish Legal News, February 26, 2018

Scottish Legal News; More small businesses are bringing claims to the Intellectual Property Enterprise Court (IPEC), according to a new report.

"More small businesses are bringing claims to the Intellectual Property Enterprise Court (IPEC), according to a new report.

The number of claims heard by IPEC last year reached a record high...

“Growing numbers of technology companies, in particular, are using the court, as IP will often represent their most valuable asset,” it states."

Allergan is dealt another setback as patent board shoots down Mohawk patent deal; STAT, February 23, 2018

Ed Silverman, STAT; Allergan is dealt another setback as patent board shoots down Mohawk patent deal

"In a closely watched case, a U.S. patent appeals board ruled that a Native American tribe cannot claim sovereign immunity in order to avoid a certain type of patent challenge. The decision is a blow to Allergan (AGN), which last fall transferred patent rights to one of its biggest-selling medicines to the St. Regis Mohawk Tribe in hopes of thwarting generic competition.

Procedurally, Allergan sought to avoid inter partes reviews, a type of patent challenge that has vexed drug makers since going into effect six years ago, because these are easier and faster to file than patent lawsuits. At the time it transferred patent rights to its Restasis eye treatment, which last year generated more than $1.4 billion in sales, Allergan was facing a conventional patent challenge in a federal court."

Patent Trolls Target Small Businesses With Lawsuit Threats. Here's How One Startup Fought Back; Inc., February 22, 2018

Minda Zetlin, Inc.; Patent Trolls Target Small Businesses With Lawsuit Threats. Here's How One Startup Fought Back

"Why are they targeting small businesses?

For years, these entities made their money by suing or threatening to sue large corporations with deep pockets. This worked well because they could take advantage of the rule that companies can be sued anywhere they do business, and large companies tend to do business in every state. Patent trolls found a few federal court districts where they had greater odds of winning. From their point of view, life was good.

But in May 2017, the Supreme Court issued a ruling that companies could only be sued for patent infringement in the state where they reside. That made collecting much harder for patent assertion entities. Many turned their attention to small companies and startups for which the cost of defending a patent case could pose an existential threat. They began sending letters containing a simple proposition: Pay us a (relatively reasonable) one-time fee and we'll sell you a permanent license and drop our planned lawsuit."

When the Copyright Office Meets, the Future Needs a Seat at the Table; Electronic Frontier Foundation (EFF), February 21, 2018

Cory Doctorow, Electronic Frontier Foundation (EFF); When the Copyright Office Meets, the Future Needs a Seat at the Table

"Every three years, EFF's lawyers spend weeks huddling in their offices, composing carefully worded pleas we hope will persuade the Copyright Office and the Librarian of Congress to grant Americans a modest, temporary permission to use our own property in ways that are already legal.

Yeah, we think that's weird, too. But it's been than way ever since 1998, when Congress passed the Digital Millennium Copyright Act, whose Section 1201 established a ban on tampering with "access controls for copyrighted works" (also known as "Digital Rights Management" or "DRM"). It doesn't matter if you want to do something absolutely legitimate, something that there is no law against -- if you have to bypass DRM to do it, it's not allowed.

What's more, if someone wants to provide you with a tool to get around the DRM, they could face up to five years in prison and a $500,000 fine, for a first offense, even if the tool is only ever used to accomplish legal, legitimate ends."

Apple looks to patent yoga calorie counting; Axios, February 22, 2018

Ina Fried, Axios; Apple looks to patent yoga calorie counting

"Ever wonder how many calories you are burning doing yoga? Well Apple has applied for a patent for a way to do just that...

Standard patent disclaimer: Patents represent an idea that a company has but don't always mean something is coming to market."

6 Core Values and 5 Emotional Intelligence Skills Leading to Sound Ethical Decisions; IPWatchdog, July 6, 2017

Bernard Knight, IPWatchdog; 6 Core Values and 5 Emotional Intelligence Skills Leading to Sound Ethical Decisions

"Ethical conduct is required in all jobs and by all organizations.   It also applies to positions at all levels.   Anyone can disagree with a substantive business or legal decision, but make an ethical mistake and your company, firm or individual career could be in jeopardy.   I explain below some excellent tools to avoid ethical missteps...

This article discusses how you can use core values and emotional intelligence skills to avoid ethical mishaps.   These skills are easy to gain and can save you from an unintended ethical mishap.   For more on the importance of emotional intelligence, see my prior IPWatchdog article."

Patenting the Future of Medicine: The Intersection of Patent Law and Artificial Intelligence in Medicine; Lexology, February 14, 2018

Finnegan, Henderson, Farabow, Garrett & Dunner LLP - Susan Y. Tull, Lexology; Patenting the Future of Medicine: The Intersection of Patent Law and Artificial Intelligence in Medicine

"Artificial intelligence (AI) is rapidly transforming the world of medicine, and the intellectual property directed to these inventions must keep pace. AI computers are diagnosing medical conditions and disorders at a rate equal to or better than their human peers, all while developing their own software code and algorithms to do so. These recent advances raise issues of patentability, inventorship, and ownership as machine-based learning evolves."

Over 50 Libraries, Educators, Researchers Call On EU Parliament For Better Copyright; Intellectual Property Watch, February 15, 2018

Intellectual Property Watch; Over 50 Libraries, Educators, Researchers Call On EU Parliament For Better Copyright

"More than 50 organisations representing a range of teachers, students, trainers, researchers, scientists, librarians and others have joined together to call on the European Parliament to improve European copyright reform for education.

The announcement from Electronic Information for Libraries (EIFL) is available here and reprinted below:"

Merck Falls After $2.54 Billion Gilead Verdict Is Tossed; Bloomberg, February 20, 2018

Susan Decker and Christopher Yasiejko, Bloomberg; Merck Falls After $2.54 Billion Gilead Verdict Is Tossed

"Merck & Co. fell after a federal judge tossed a record $2.54 billion verdict it had won against Gilead Sciences Inc. over a hepatitis treatment.

A federal jury in 2016 had said that Gilead owed Merck 10 percent of the sales of its Sovaldi and Harvoni hepatitis C drugs. District Court Judge Leonard Stark in Wilmington, Delaware, agreed Friday with Gilead’s argument that the Merck patent was invalid...

The verdict was the largest patent-infringement verdict in U.S. history, dwarfing the next biggest, a $1.67 billion verdict won by Johnson & Johnson against Abbott Laboratories that was later thrown out on appeal, according to data compiled by Bloomberg.

The case is Idenix Pharmaceuticals LLC v. Gilead Sciences Inc., 14-846, U.S. District Court, District of Delaware (Wilmington)."

From Taco Tuesday to Sunday Brunch, restaurants fight over trademarks; National Post, February 19, 2018

Joseph Brean, National Post; From Taco Tuesday to Sunday Brunch, restaurants fight over trademarks

"News that a large restaurant franchise conglomerate has threatened a small Tex-Mex cantina in Calgary with a lawsuit for illegally using the trademark “Taco Tuesday” has shone a rare light into the murky world of intellectual property law for foodies.

It is a brutal world, in which even the most basic culinary gimmick has probably already been claimed and protected by unforgiving law, from the “Ham N’ Egger” to “Eggs Benny.”"

ASCAP sues Peninsula bar for copyright infringement; Peninsula Daily News, February 18, 2018

Paul Gottlieb, Peninsula Daily News; ASCAP sues Peninsula bar for copyright infringement

"The lawsuit seeks damages, as outlined in the Copyright Act for infringement actions, of between $750 and $30,000 for the unlicensed, unpermitted performance of each of four songs, or $3,000 to $120,000 in total damages, along with court costs and attorney’s fees.

ASCAP alleges the songs were played on April 19, 2017, during what Wagener said were karaoke performances. A person from a private investigative firm who was at the bar documented The Dam Bar patrons singing the songs, Wagener said."

Judge awards graffiti artists $6.7M in suit against building owner who whitewashed their art; ABA Journal, February 14, 2018

Debra Cassens Weiss, ABA Journal; Judge awards graffiti artists $6.7M in suit against building owner who whitewashed their art

"A federal judge in Brooklyn, New York, awarded statutory damages of $6.7 million to 21 graffiti artists in a suit that contended a building owner violated federal law when he painted over their artwork.

U.S. District Judge Frederic Block ruled Monday that 45 works of graffiti art on the 5Pointz warehouses in the borough of Queens were protected under the Visual Artists Rights Act because of their “recognized stature,” report the Washington Post and the New York Times.

Dean Nicyper, a Withers Bergman partner who specializes in art law, told the New York Times that the decision is the first to find that graffiti and graffiti artists were protected by VARA.

The Visual Artists Rights Act amends copyright law to give artists the right to attribution and integrity of their visual work."

Copyright For Libraries Around The World In 2018; Intellectual Property Watch, February 16, 2018

IFLA via Intellectual Property Watch; Copyright For Libraries Around The World In 2018

"Note: This roundup of changes to copyright laws around the world was prepared and originally published here by the International Federation of Library Associations and Institutions (IFLA). It is reposted with permission of the authors.

Copyright laws around the world are constantly changing in an attempt to adapt – or react – to the digital world. These changes can have a major impact on how libraries function and on the public service they provide. While some reforms offer new possibilities and legal certainty, others look backwards and seek to use the law to restrict the ability of libraries to guarantee meaningful information access to their users.

IFLA therefore follows the evolution of copyright reforms around the world, as well as bilateral and multilateral trade agreements that impact copyright regimes.

With the input of the IFLA copyright and other legal matters committee and network, we have compiled an inventory of recent and ongoing reforms that affect libraries and their services around the world. Following part 1, part 2 will identify topics that seem to be gaining importance in copyright reforms, and the approach that countries are adopting."

IBM-Microsoft Spat Elevates Diversity to Tech-Secret Level; Bloomberg, February 12, 2018

Chris Dolmetsch, Bloomberg; IBM-Microsoft Spat Elevates Diversity to Tech-Secret Level

"“McIntyre was at the center of highly confidential and competitively sensitive information that has fueled IBM’s success” in diversity and inclusion, the company said in a statement. “While we understand Microsoft’s need to deal with mounting criticism of its record on diversity, IBM intends to fully enforce Ms. McIntyre’s non-compete agreement to protect our competitive information.”

In its complaint, filed Monday in federal court in White Plains, New York, IBM pointed to Microsoft’s own attempts to keep details about its diversity efforts secret.

IBM’s diversity-related trade secrets aren’t valuable to Microsoft and McIntyre wouldn’t be able to use them in her new role, her attorneys said."

Drafting Quality Patents Avoiding §112 Rejections at the USPTO; LexisNexis Webinar on February 22, 2018 at 12 Noon ET

LexisNexis Webinar on February 22, 2018 at 12 Noon ET: 

Drafting Quality Patents Avoiding §112 Rejections at the USPTO: "The value of a patent, for better or worse, is related to the likelihood that it could be successfully defended against challenges. In the past, it was believed that there was safety in numbers. Today, the focus is on quality patents, not the quantity of patents. The requirements of §112 have become the linchpin in modern patent practice. Whether you are trying to define an improvement over the prior art to satisfy the Alice-Mayo patent eligibility test, or you need to carefully describe an innovation to overcome obviousness hurdles, filing a well-crafted, completed and vetted specification is mandatory. Join presenters Gene Quinn, founder of IPWatchdog.com, Joseph Root, founder of QualiPat and Dave Stitzel, IP Solutions Consultant on February 22 at 12:00 PM ET for a free webinar. They will discuss best practices for filing a robust application to avoid §112 rejections and associated problems."

Why Students Are Still Spending So Much for College Textbooks; The Atlantic, January 26, 2018

Laura McKenna, The Atlantic; Why Students Are Still Spending So Much for College Textbooks

"Along with the traditional textbooks, many college classes now require students to purchase access codes—which cost $100 on average—to online platforms created by publishers such as McGraw-Hill and Pearson. Homework and quizzes are hidden on the platforms behind paywalls that expire after the semester, meaning students can’t resell them once they’re done with the course...

Publishers and some professors tout the advantages of these new digital assessment tools, pointing to their ability to streamline the academic experience by making it more efficient and customized. The fact that they’re becoming omnipresent on some campuses speaks to instructors’ enthusiasm for them. But as demonstrated in a new report by Student PIRGs, a collection of college student-run advocacy groups that works alongside U.S. Public Interest Research Groups, students are starting to question their merits: The access codes threaten to exacerbate the already-high cost of college materials, undermining the used-book market and reshaping the college experience. As McGrath put it, now “you have to pay to do homework.”

Artist Says Kendrick Lamar Video for ‘Black Panther’ Song Stole Her Work; New York Times, February 11, 2018

Robin Pogrebin, New York Times; Artist Says Kendrick Lamar Video for ‘Black Panther’ Song Stole Her Work

"In detailing the infringement, the letter says the video contains a 19-second segment (starting at the 2:59 mark) “that incorporates not just the immediately-identifiable and unique look of her work, but also many of the specific copyrightable elements in the ‘Constellations’ series of paintings, including stylized motifs of mythical animals, gilded geometric forms on a black background, and distinctively textured areas and patterns, arrayed in a grid-like arrangement of forms.”

Nancy E. Wolff, a copyright lawyer who currently serves as the president of the Copyright Society of the USA, said that the video’s directors are likely to argue that the images in the video are not exact copies. But because the gold-on-black aesthetic of Ms. Viktor’s work “is so strong,” Ms. Wolff said, “it’s just going to look like it’s the same.”

“It’s really tricky because style is not protected,” Ms. Wolff added, “but I can see why everyone assumed this artist was involved.”"

SCIENCE’S PIRATE QUEEN; The Verge, February 8, 2018

 Ian Graber-Stiehl, The Verge; SCIENCE’S PIRATE QUEEN

"The legal campaigns against Sci-Hub have — through the Streisand effect — made the site more well-known than most mainstay repositories, and Elbakyan more famous than legal Open Access champions like Suber. The threat posed by ACS’s injunction against Sci-Hub has increased support for the site from web activists organizations such as the EFF, which considesr the site “a symptom of a serious problem: people who can’t afford expensive journal subscriptions, and who don’t have institutional access to academic databases, are unable to use cutting-edge scientific research.”

The effort may backfire. It does nothing to address disappointment scientists feel about how paywalls hide their work. Meanwhile, Sci-Hub has been making waves that might carry it further to a wider swath of both the public and the scientific community. And though Elbakyan might be sailing in dangerous waters, what’s to stop idealistic scientists who are frustrated with the big publishers from handing over their login credentials to Sci-Hub’s pirate queen?"

Cloudflare Terminates Service to 'The Pirate Bay of Science'; MotherBoard, February 9, 2018

Rebecca Flowers, MotherBoard; Cloudflare Terminates Service to 'The Pirate Bay of Science'

"On February 3, the Twitter account for Sci-Hub tweeted a screenshot of an alleged email from Cloudflare, the content delivery network provider for Sci-Hub (which acts as an intermediary between the user and website host), informing Sci-Hub that its service would be terminated in 24 hours. At the time of writing, the main Sci-Hub domain is inaccessible on the web, but the mirror sites mentioned in the screenshotted email from Cloudflare are still active.

Cloudflare’s termination of service is due to a court injunction against Sci-Hub, a Cloudflare spokesperson told me over the phone. That order was handed down by a federal judge in November when the American Chemical Society, another academic publisher, won $4.8 million in damages against Sci-Hub. The decision also included an injunction requiring search engines and internet service providers to block Sci-Hub, a digital blockade unusual for the US."

Fair Use/Fair Dealing Week 2018 to Be Celebrated February 26–March 2; Association of Research Libraries (ARL), January 17, 2018

Krista L. Cox, Association of Research Libraries (ARL); 

Fair Use/Fair Dealing Week 2018 to Be Celebrated February 26–March 2

"Mark your calendars! Fair Use/Fair Dealing Week 2018—a community celebration coordinated by the Association of Research Libraries—will take place Monday–Friday, February 26–March 2. You can participate on a single day during the week, multiple days, or the full week."