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When sued for patent infringement, a defendant can still petition for inter partes review (“IPR”) of the asserted patent at the United States Patent and Trademark Office (“USPTO”) if the petition is filed within one year of service of the complaint.  But, as Game & Technology Co. v. Wargaming (Fed. Cir. 2019) reminds us, a plaintiff must properly serve the complaint to trigger the one-year deadline.  Specifically, “[s[ection 315(b) states that ‘[a]n inter partes review may not be instituted if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner … is served with a complaint alleging infringement of the patent.’”  35 U.S.C. § 315(b).
Continue Reading Online Gaming Case Addresses Trigger for One-Year IPR Filing Deadline

If you’re plugged into the digital world and its constantly emerging meme trends, you’ve probably encountered various “OK, Boomer” memes by now. If you’re unfamiliar with the trend, here is a brief synopsis. OK, Boomer is a phrase that is used in response to members of the baby-boomer generation who have, through their conduct, demonstrated that they are out of touch. For example, when a member of the baby-boomer generation harps on a member of the millennial generation or Generation Z for allegedly lacking the work ethic of the boomer generation, one might respond, “OK, Boomer.” There are various other situations where the phrase could be used, but as you can see, it is either a trendy insult, or an ageist slur, depending on your point of view.
Continue Reading OK, BOOMER: Fox Media Seeks Registration of the Viral Phrase From the USPTO

Virginia Vallejo, a well known Colombian journalist and media personality, authored the memoir “Loving Pablo, Hating Escobar”.  The book is a factual account of her romantic relationship with Pablo Escobar and a chronicle of the rise of the Colombian drug cartel.

Vallejo claimed that certain scenes in the television series Narcos infringed the copyright in her book, and she sued Narcos Productions, the producer of the series, Gaumont Television, the series’ distributor, and Netflix, the U.S. broadcaster.  Specifically, Vallejo claimed that certain scenes in the series were copied from various chapters in her book, including one that describes a sexual encounter between Vallejo and Escobar involving a handgun, and
Continue Reading Order in Netflix Lawsuit is a Reminder of the Bounds of Copyright Protection

In Arthrex Inc. v. Smith & Nephew Inc. et al., case number 18-2140, the U.S. Court of Appeals for the Federal Circuit recently considered whether the appointment of the Board’s Administrative Patent Judges (“APJs”) by the Secretary of Commerce, as currently set forth in Title 35, violates the Appointments Clause of the U.S. Constitution.  The Federal Circuit held that the statute as currently constructed makes the APJs principal officers.  To remedy the violation, the Federal Circuit concluded that severing the portion of the Patent Act restricting removal of the APJs is sufficient to render the APJs inferior officers and remedy the constitutional appointment problem.  As the final written decision on appeal issued while there was an Appointments Clause violation, the appropriate course of action was for this case to be remanded to a new panel of APJs.
Continue Reading Federal Circuit Holds Administrative Patent Judges Appointments Unconstitutional

Should a company be required to license its patents to a competitor?  That’s one question that arises when intellectual property law and antitrust law intersect.

The Sherman Act, section 1, prohibits concerted action (agreements, combinations, or conspiracies) that restrain trade.  Four types of conduct are per se unlawful; i.e., illegal regardless of the reason.  They all involve agreements between competitors, also called horizontal agreements.  It is per se unlawful to agree with a competitor to fix prices, rig bids, participate in group boycotts, or allocate markets.  Other types of conduct are unlawful under the Rule of Reason; their illegality depends on the conduct in the relevant market (the product market and the geographic market) and whether there is a rational business reason for the conduct.  Examples of unlawful conduct include certain types of exclusive dealing arrangements, some kinds of price discrimination or restrictions on sales, tying arrangements, and some mergers and acquisitions.
Continue Reading What Happens When the Intellectual Property Laws Clash with the Antitrust Laws?