Interesting and Relevant IP-Related News
The IP Recap
Design Patents Coming Into Fashion?
In the fashion industry, brands and distinguishing features are of utmost importance, and therefore the IP around those characteristics is of high importance too. Intuitively, one would expect the brands to be trademarked, and then the clothes, accessories etc. designs (patterns etc.) that are produced to be protected by copyright. However, as of the recent landmark case Star Athletica, LLC v Varsity Brands, Inc., copyright could be more tricky to navigate for the fashion industry. The case went to the supreme court, which ruled that a “useful article” must have “separability”. This means the only copyright-eligible aspect of a garment, bag, accessory etc. is a design feature rather than the whole item itself. In essence, this means that the elements must be identifiable as being more akin to art if separated from the practical use of the item.
Why It Matters
Due to this complexity of navigating these copyright issues, some brands have instead been turning to design patents to protect their products. This is an expensive process and is only likely to be a viable option for major brands. Alternatively, it could mean that trademarked logos/slogans will need to become a bigger feature since they cannot be copied. However, these involve either spending significant amounts of money, or changing the products, so could we see a movement to update the US system to be more like the European one, with the option of either registered designs and unregistered Community design rights?
Inventor-Owned Patents Given Special Dispensations
Recent SCOTUS legislation has focussed on limiting the impact of NPEs, with eBay v. MercExchange making it much harder to get an injunction against an infringer, and TC Heartland v. Kraft Foods, which limits the choice of where a case can be filed against an infringer. For an individual with an infringed patent and limited travel capability, this could make enforcing their patent very tricky. Instead, there is the new Infor inventor-owned patents, that can be enforced either in the defendant’s own jurisdiction, or where the infringer has an established place of business. There’s a similar loophole for damage awards where there is a presumption of irreparable harm to an inventor when there is a verdict in the inventor’s favour.
Why It Matters
The aim of the legislation was to reduce the impact of infringement rulings and to prevent plaintiffs from choosing courts based on success rates in order to level the playing field. The new Inventor Protection Act means that inventors are exempt from these rulings, but that in itself introduces a new problem, in that there will need to be a definition made for inventor-owned patents. Does that include those owned by the inventor but have had the enforcement rights passed on to a Patent Assertion Entity? Or whether the inventor could act like a holding company for a licensing operation?
Why Big Companies Bulk-File
Wired recently published a look at the patent filing trends from the US’s biggest patent filers. The bulk of these are companies you’d associate primarily with smartphone tech, with 2 automotive firms being the obvious exceptions. Given the number of patents filed per year, and the relatively small number of changes from one product release to the next, it might look on face value like many of these patents aren’t of much use. However, as any NPE will tell you, there is significant value in patents beyond patenting features of your own products, and defensive patent filings are a significant piece of a large multinational’s IP strategy if they are in a litigious sector.
Why It Matters
As well as covering your own products, to keep your products’ innovative features protected from copycats, defensive filing involves looking at the market and your competitors and ensuring you have IP that covers both what you and what others are likely to be bringing to the market. This means that, should you want to, you could be in a position to proactively seek infringement in a licensing campaign. Alternatively, it means that should you be accused of infringement by a competitor, you may be able to find assets that read on their products in order to negotiate a cross license. A third way of using these assets, and IBM are a good example of this, is to sell them on to others since further down the line, an earlier filing on a technology could prove very valuable and sales of such assets could provide a good source of income.
- UK will explore staying in the UPC post-Brexit
- Bittersweet Milestone: Ten Million Patents Issued in the US, but What Are They Worth?
- Whirlpool sues in Eastern Texas on U.S. Patent No. 10,010,820
- IBM Awarded 6 Blockchain-Related Patents in One Week
- Patent quality is up, according to EPO quality report
- Reflections on Drug Patents and the High Cost of Healthcare
- What Every Startup Should Know Before Filing A Patent
- For your (external) eyes only – confidentiality clubs for trade secret litigation
- Court of Appeal grapples with novelty of overlapping ranges in Jushi v OCV
- China registers 10.6 patents per 10,000 citizens
- Apple Won 70 Patents Today Covering an iPhone with a Foldable Display, Motion Tracking UI, In-Cell OLED Displays & more
- Forget Apple vs Samsung, an even bigger patent war has just begun
Other Tech News
- Octi raises $7.5M to create augmented reality that understands human movement
- Facebook patent would have your TV tell your phone to secretly record you
- Walmart patents surveillance tool that can eavesdrop on workers
- Ofcom reveals fixed wireless roadmap to support 5G adoption
- This prototype chainless bike suggests the future of cycling could be ceramic
- Do Amazon’s Movement-Tracking Wristbands Violate Workers’ Privacy Rights?
- Waymo offers a sneak peek of its new all-electric self-driving Jaguar I-Paces
- Two years later, Pokémon Go finally has some competition
- YouTube will now notify some creators when their videos are stolen
- Google’s Gboard keyboard now lets you communicate through Morse code on both Android and iOS
- Magic Leap is shipping its first headset this summer
- HTC’s blockchain-powered Exodus smartphone is a risky bet that needs to pay off
- WhatsApp will now label forwarded messages
- Facebook starts testing AR ads in the News Feed
- Netflix will automatically download new episodes of your favorite shows on Android
- Nerf updates laser tag with smartphone AR
- The iconic Campervan is getting an ambitious sci-fi makeover and this time it’s electric
- The UK is testing signs that detect when phones are used in cars