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Patents Still Strong

Jim Ruttler, Patent Attorney

Posted Monday, November 7, 2016 by Jim Ruttler

It is well known that the Supreme Court has weakened certain aspects of the patent system. One way this has been done is to make most business methods and software implementing those business methods patent ineligible. While many believe this has weakened the patent system and will result in less innovation and weaker protection, I argue that the changes just don’t matter and patents remain strong.

My reasoning for this is that the economy and innovation has moved beyond software only inventions. The newest innovations come in the form of physical things, such as new devices and products, and not merely software instructions. Companies are now focused on making physical goods using rapid prototyping, 3D printing, modular circuits and selling those goods using online distribution channels. These types of products and innovations remain squarely within protectable subject matter with patents.

While the changes in patent law weakening protection for certain software inventions would have be significant a decade ago, now there is less focus on products that are limited entirely to software. The Courts are simply a decade behind the economy and the decisions simply don’t have an effect on the new areas of innovation involving physical goods.

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10-28-16 Weekly Round-Up of Trademark News

Daniel Mills, Trademark Attorney

Posted Friday, October 28, 2016 by Daniel Mills

It’s World Series time and as a lifelong Cleveland Indians fan, it is especially exciting for me this year. The Cleveland Indians are playing the Chicago Cubs and one of these teams is going to win and break a very long streak of losing in the World Series. The Cubs have the best record in baseball this year and have the most talent, but that doesn’t guarantee wins. What the Cubs are trying to guarantee is that no one in the USA can use the letter “C” or “W” or at least it seems that way. Steve Brachmann at IPWatchdog has a great article detailing the 49 TTAB petitions for oppositions and cancellations filed by the Cubs in 2016. Good luck Cubs in the trademark action, I hope you lose miserably on the field - Go Tribe!

I’ve blogged about previous trademark disputes involving Car-Freshener Corp; the company that makes the tree shaped car fresheners that are very popular among those who just cant’ seem to clean their cars. They are in the news again, but this time it is a little tougher to see them as the victim. They sued a non-profit organization that employed the homeless, addicts, and ex-cons to make real wood car fresheners for trademark infringement. The lawsuit by Car Freshener Corp.put the non-profit into bankruptcy and they are out of business. Read more details here.

With one week before America goes to the polls, we have a Donald Trump related trademark news items. It seems that a NY based doctor has applied for a trademark for TRUMP TV. The chances of the doctor getting the mark are slim, in light of the fact that he is on record as saying that he did it on a lark, and has no intention of using the mark. That is a no-no for the USPTO, but the chances of him being able to be an obstacle to the Donald if he chose to do so, he could drag out the process for over three years. On the other hand, given Trump’s record of suing people, the good doctor may have started something he did not intend. Read more here.

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10-21-16 Weekly Round-Up of Trademark News

Daniel Mills, Trademark Attorney

Posted Friday, October 21, 2016 by Daniel Mills

Zombies and Jedi in trademark news this week. I expect to see a lot of zombies and Star Wars clad youngsters at my door this Halloween, so here are a couple of items in trademark news related to each.

First up, Valhalla Entertainment, the production company responsible for cable TV’s most popular show, The Walking Dead, is suing a company calling itself Valhalla Studios, for infringement. Valhalla Studios is building production facilities in Atlanta, Georgia where The Walking Dead is filmed and where the story takes place. With such a similar name and it’s location in Atlanta, Valhalla Entertainment believes that a confusingly similar name is not only infringement, but also, unfair competition, and deceptive trade practice according to the Hollywood Reporter. Valhalla Entertainment recently settled a trademark opposition proceeding with Valhalla Game Studios over a trademark dispute that started in 2012. With the success of The Walking Dead, anyone looking to trade off its success without permission, should expect to meet the legal equivalent of “Lucile” in short order.

Also from the Hollywood Reporter is this story about Disney subsidiary, Lucasfilm, that has just filed a lawsuit against Michael Brown for operating a business called New York Jedi and the Lightsaber Academy. Among the complaints is that Brown’s company has also developed a logo that is confusingly similar to the Jedi symbol. You can see a side-by-side comparison here. I’m not going to choose who is the Dark Side in this fight, but when I look at the use and the logos in questions, I can see why Lucasfilm would be concerned. Find out soon, we will.

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How to Keep Your Trademark Application a Secret

Daniel Mills, Trademark Attorney

Posted Friday, October 21, 2016 by Daniel Mills

Most companies want to keep new product information a secret as long as possible, or at least be able to control when the information “leaks” out. US trademark filings are public record from the time a filer clicks the submit button on the USPTO website, so what can a company do keep it under wraps for as long as possible?

You do what Apple does, which is first file your application in a country that does not maintain an online or easily searchable trademark database and then take advantage of section 44(d)of the Lanham Act. Section 44(d) of the Trademark Act permits a party to file an application in the United States with a claim of priority based upon an earlier-filed foreign application. The United States application must be filed within six months from the filing date of the foreign application on which the United States application is based. An application filed pursuant to Section 44(d) is not required to allege use in the United States or elsewhere, nor are specimens showing use of the mark required.

Apple is not alone, this trick is used by many big tech companies such as Microsoft, Google, and Amazon. Apple’s favorite country is Jamaica because if you want to search Jamaica’s trademark filings, you have to do it in person in Kingston. Other countries with similar situations are Iceland, South Africa, Tonga, and Trinidad and Tobago, and many African countries.

It is not a guarantee, as the applications are not secret, they are just hard to search, especially when a shell company is used to file the foreign applications. Also, it is not cheap, but when keeping a new trademark a secret is important, then it is worth a shot.

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IPR System Upheld

Jim Ruttler, Patent Attorney

Posted Friday, October 14, 2016 by Jim Ruttler

The Supreme Court denied two petitions in Cooper and MCM this week thereby upholding the constitutionality of inter partes review proceedings. What is likely to come as a shock to a majority of patent attorneys, the Supreme Court apparently did not have any problem with the Patent Office being in charge of granting and destroying patent rights independent of an Article III judge. So, the IPR proceedings apparently remain legal and, unfortunately are here to stay as part our the patent system.

What this means practically is that even if you are granted a patent, the same patent office that granted you the patent can later take it away if they feel a mistake was made. Old legal strategies are no longer effective in this unfair and uncertain system. Inventors and companies must adopt new strategies to minimize the effect of IPR proceedings.

First, always keep a continuation application pending even if you obtain a patent. This way, if your issued patent ends up being revoked, you can always pop out another one using your continuation application.

Second, consider filing a family of applications with overlapping subject matter and claims. A patent portfolio is more difficult and more expensive to later challenge because each patent must be separately considered.

Third, draft at least one picture type claim of high specificity in addition to broad claims. This array of specificity can offer broad protection with the insurance of having at least one narrow claim that would be less likely to be challenged.

Fourth, file design patent applications simultaneously with utility patent applications covering similar subject matter. Design patents are harder to challenge, easier and cheaper to obtain, and currently offer enhanced damage potential.

These strategies will help innovators water down the effects of the IPR proceedings.

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