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EAA AirVenture Technology

Jim Ruttler, Patent Attorney

Posted Monday, August 1, 2016 by Jim Ruttler

This past week I flew to EAA AirVenture in Oshkosh, Wisconsin to discover new general aviation technology. While glass panel avionics, noise canceling headsets, and new personal jet designs drew large crowds, there were three innovations that were particularly interesting to me.

The first was the Wing Board. Think wake boarding for the sky where the boat is substituted with a plane. Just strap yourself to the board and grab a tow rope and follow a plane into the sky where you can carve out with absolute freedom. When you are done, just hit the release button and parachute down to the ground. The device has undergone wind tunnel testing, and robotic in-flight testing. The founders are looking for funding to begin in-flight person tests. A video of this intriguing new product can be found here: https://www.youtube.com/watch?v=BgXwdz9yZxY.

The second was controllable Instrument Flight Training goggles from Icarus. These goggles are worn and shift from opaque to transparent to simulate moving in and out of the clouds. These replace the permanently opaque glasses that IFR students are accustomed to, which more closely simulates what it is actually like to fly in and out of the clouds. The company is in initial development phase and will be moving soon to production.

The last were augmented reality glasses that provided enhanced flight information called Aero Glass. I wore these glasses while viewing a simulated flight experience. The glasses provided information on buildings we were passing as well as course guidance information. The company hopes to continue development and bring the glasses to market soon. More information can be found at http://glass.aero/.

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Marijuna Trademarks Still Not Permitted Under Federal Law

Daniel Mills, Trademark Attorney

Posted Wednesday, July 20, 2016 by Daniel Mills

Being based in a state that allows medical and recreational marijuana use, I have received many inquiries about obtaining federal trademark protection for marijuana related products and services. Under trademark law, a trademark must be associated with goods or services with lawful commercial use. Because trademark law is federal, the lawfulness standard means that the use has to comply with federal law, not state law. In other words, it does not matter that Washington allows marijuana (or any other state). Because it is against federal law, it is unlawful for trademark purposes.

I have heard many crafty suggestions on how to skirt this issue from shop owners, growers, and entrepreneurial investors. However, the reality is that you cannot get a federal trademark if there is a connection with actual marijuana. The latest example of this came down on Monday July 18, 2016 with when the Trademark Trial and Appeal Board (TTAB) upheld a refusal on an application for Herbal Access in association with “retail store services featuring herbs”. You can read the decision here.

The applicant unsuccessfully attempted to argue that because they sold “herbs” which is legal, the application should be allowed. The TTAB held that the evidence in the application and on the applicant’s website clearly indicates that they sell marijuana and therefore is a violation of the Controlled Substance Act, and therefore, a federal violation that bans trademark registration.

This decision makes it clear to me, that no matter how clever, an applicant may try to be, if there is a connection to marijuana, there will be a refusal. I don’t think this attempt was particularly clever, nor was it argued that strongly. However, if you want to connect a trademark to a federally illegal good or service, it won’t happen. In other words, no one is that clever!

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Federal Circuit Appeals Court Finds 3rd Case of Eligible Subject Matter in Software

Jim Ruttler, Patent Attorney

Posted Monday, June 27, 2016 by Jim Ruttler

The Federal Circuit today issued its decision in Bascomb where it found for the third time that software can be patent eligible. After the broad language of the Supreme Court decision in Alice, many thought that software could be no longer patent eligible. The appeals court in charge of patents has again stated that this is not the case and that software remains patent eligible.

Here, the claims in Bascomb were directed toward a network traffic filtering system. Older systems placed the filtering software on the client, which allowed for customization. Some efforts at centralizing the filtration software on servers had resulted in a one-size-fits-all approach. The claims here solved that problem by allowing customization of filtration rules while centrally locating the filtering software.

The Court held that while filtering was something old and well known, the specific application here added more and didn’t preempt all filtering.

Judge Newman issued a concurring opinion calling for the need to return to a focus of the statute and on novelty and non-obviousness instead of eligibility. The eligibility test has become unpredictable and is conflating other areas of the Patent Act. This reflection is accurate and welcome in what has become a really confusing area of the law.

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Brexit Vote Likely to Delay European Patent Courts

Jim Ruttler, Patent Attorney

Posted Friday, June 24, 2016 by Jim Ruttler

The European Unitary Patent and Unified Patent Court system was set to be ratified within the next few months. One can currently obtain a European Patent through the European Patent Office, but this patent must be separately enforced in each country of the EU. Obviously, this is not efficient when an infringer is operating in two countries or more. The Unified Patent Court would have provided a single court system that allowed for enforcement across all of the EU.

According to leading UK magazine, IAM Media, The Unified Patent Court system has been placed on hold now after the Brexit vote. It could take at least two years or more for implementation of the Unified Patent Court and it may never happen now that the UK is planning to exit the EU.

This means that the United States remains the largest single market of coverage for patent assets and that the recent rush to European patents may not result in as large a benefit as hoped.

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Cuozzo SCOTUS Decision BRI is OK

Jim Ruttler, Patent Attorney

Posted Tuesday, June 21, 2016 by Jim Ruttler

Yesterday the Supreme Court decided Cuozzo and held that the broadest reasonable interpretation is fine during inter partes review proceedings. Cuozzo had wanted a more narrow standard during the proceedings, which are well known for being unfavorable toward patentees.

What standard of review is used during the proceedings is really irrelevant. Once your patent is pulled into one of these proceedings, the Patent Office is most likely going to invalidate most if not all of your patent - under whatever standard they apply.

The real issue here is that these PTO proceedings are unconstitutional because they take private property (patents) outside of the court system. If you get a patent, then the law since late 1800’s says that it is your private property. As private property, it can’t be revoked by the executive branch and is only subject to being taken away through the judicial system.

Unfortunately for the Patent Office, the Cuozzo win will likely be short lived as two new cases are up for review by the Supreme Court challenging the constitutionality of the entire inter partes review framework: Cooper and MCM. Cooper asks the Court to limit any Patent Office decisions as being advisory to a federal court judge. MCM asks the Court to outright invalidate the entire inter partes review.

We should know within a couple of months whether the IPR framework will remain or whether it will be scaled back.

If it isn’t scaled back, then there are many options for patent owners to minimize the downside risks of IPRs. We’ll save those for another post in the event that I’m wrong and IPRs are maintained by the Courts.

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