COVID-19 Prioritized Examination Pilot Program Now Available for Small and Micro Entities

The United States Patent and Trademark Office (USPTO) today announced a new Prioritized Examination Pilot Program for qualified patent applications relating to COVID-19.  This program is available without the usual prioritized-examination fees and the USPTO’s goal under the program is to reach final disposition of applications in the program within twelve months from the date prioritized status is granted.  However, the USPTO notes that it may be able to reach final disposition in six months if applicants provide more timely responses to notices and actions from the USPTO.  This pilot program is limited to a total of 500 accepted requests, but the USPTO may extend or terminate the pilot program at its discretion. Continue Reading

USPTO Provides Form for Claiming 30-Day COVID-19 Extensions

On March 31, 2020, the USPTO announced that it is permitting applicants, for delays that are based on the ongoing COVID-19 emergency in the United States, to request a 30-day extension of the time allowed to file certain documents and to pay certain fees. We provided an explanation of this announcement when it was published. Since then, the USPTO provided a form to be used for the “statement of delay” required in claiming a COVID-19-related filing extension. Extensions were originally applicable to due dates falling between March 27 and April 30. The USPTO, on April 28, 2020, extended the applicable period for due dates to June 1, 2020. Continue Reading

Breach of FRAND Implications on ITC Exclusion Orders In View of the Public’s Interest

Imagine a scenario where the International Trade Commission (ITC) finds a respondent infringes a standard essential patent (SEP).  An SEP that was included in a standard based on a voluntary promise to license it on fair, reasonable, and non-discriminatory (FRAND) terms.  What happens when the complainant has breached its FRAND obligation, and at the same time demands that the ITC exclude the alleged infringing product from the United States market?  Does the Commission need to consider the circumstances surrounding the FRAND obligation when reviewing the public’s interest in excluding the product?  The decade-old debate will endure on for now, but the answer may rest upon which way the current Administration’s opinion-pendulum swings. Continue Reading

A Cautionary Trade Secrets Tale: Failure To Preserve Potentially Relevant Evidence

Here, we provide a cautionary tale of what can happen to a business that fails to preserve documents that are potentially relevant evidence to pending or threatened trade secrets litigation, and offer some takeaways for businesses that would like to avoid such dire straits.[1] Continue Reading

3M Takes Action to Protect Its Brand from Price Gouging And Trademark Infringement

At the beginning of April, 3M, the nation’s largest producer of the now infamous N95 mask, filed two lawsuits against companies it claimed were confusing and deceiving buyers by falsely associating 3M with the defendants and re-selling its N95 masks at “grossly inflated”[1] prices. Such behavior, according to 3M, violates federal trademark law. The lawsuits, which were filed in the Southern District of New York[2] and the Eastern District of California[3], were some of the first major trademark lawsuits to come out of the COVID-19 pandemic. On the same day, 3M also filed suit against a John Doe in Texas state court. 3M did not stop there. Most recently, on April 30, 2020, 3M filed four additional lawsuits: two in the Middle District of Florida,[4] one in the Northern District of Florida[5], and one in the Southern District of Indiana.[6]  Overall, the complaints in these suits contain claims of federal trademark infringement, unfair competition, false association, false endorsement, false designation of origin, trademark dilution, false advertising, deceptive acts and business practices and other state law claims. Continue Reading

IP Protection and the Open COVID Cure Chase

As the world grapples with its response to COVID-19, the availability and nature of intellectual property protection afforded for diagnostic tests, treatments, vaccines, and accompanying data is likely to have a significant impact on whether and how that information is shared—and therefore necessarily will implicate the response time for containing the virus and resolving the pandemic.  This article explores those available protections, and how they may enhance or impede innovation.  This article also discusses several alternative approaches that could be used during these extraordinary times to incentivize swift collaboration while still protecting the financial interests of the innovators. Continue Reading

U.S. Supreme Court Case Preview—Van Buren v. United States: Does Use of a Computer for an “Improper Purpose” Violate the Computer Fraud and Abuse Act?

For the first time, the Supreme Court has agreed to review the Computer Fraud and Abuse Act (CFAA). The Court’s initial review of the CFAA comes in the wake of a federal circuit split as to whether the statute can only be deployed against hackers and unauthorized users of electronic systems, or also against authorized users who use the information for unauthorized purposes. The Court’s decision may significantly affect not only how law enforcement uses the CFAA, but also whether civil litigants, such as employers, may use the CFAA to defend against unauthorized employee activities. Continue Reading

6 Steps to Protect Your Trade Secrets During Covid-19 Layoffs

Although employers may not think that the COVID-19 pandemic is threatening their trade secrets, it is.  The massive layoffs resulting from the COVID-19 pandemic[1] place employer trade secrets at risk.  Here, we offer 6 steps employers can consider to protect their trade secrets in these extraordinary times. Continue Reading

U.S. Supreme Court Rules that Profits Available Even from Non-Willful Trademark Infringers

The U.S. Supreme Court unanimously held today (April 23, 2020) that a brand owner is not required to prove a defendant’s trademark infringement was willful as a precondition to an award of the defendant’s profits. The Court’s decision – Romag Fasteners, Inc. v. Fossil Group, Inc.[1] – vacated the decision of the Federal Circuit, which held that, under Second Circuit law, an award of profits could not be sustained for Romag’s failure to establish Fossil’s infringement was willful.[2]  The Court’s decision resolves a Circuit split regarding the interpretation of Section 1117(a) of the Lanham Act, which states in pertinent part: Continue Reading

Defending Against Nonperformance Of Life Science Contracts

Many life sciences contracts, including intellectual property licensing agreements, development agreements and supply agreements, contain force majeure clauses.  Depending upon the language of these clauses, the COVID-19 pandemic may be an event that triggers these clauses and provides a defense to nonperformance of the contract.  Companies that are experiencing difficulties complying with or enforcing compliance with their contracts should carefully examine their contracts to determine if a force majeure clause may excuse performance. Continue Reading

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