Technology Law and Electronic Media Update
December 16, 2014
December 2014, U.S. Patent Law: It is reported that there is a drastic decrease in the number of patent lawsuits being filed. This is in the wake of the U.S. Supreme Court decision in Alice v. CLS, 134 S. Ct. 2347 (2014), which found that claiming a generic computer applied to an otherwise well-known abstract process was not patentable subject matter because it was essentially a claim over an abstraction. Typically these types of claims are found in internet business method patents. The Alice decision has already been relied on by the lower courts 20 times in cases where a defendant argued that the plaintiff’s patent claims non-patentable subject matter. Only 4 of the cases rejected the challenge—a 20% survival rate. At the appellate level, the Federal Circuit has so far affirmed invalidity in three out of four appellate decisions citing the Alice case. While the swift run-up in the number of “business method” patent lawsuits motivated Congress to drastically modify the patent system, ironically, this recent trend is purely the judicial branch at work. But not all computer related patent claims are invalid. As the Supreme Court noted in Alice, “[a]t some level, ‘all inventions . . . embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.’" (citations omitted). We can expect the courts to continue the attempt to define a boundary between the abstract and the tangible in the field of patent law.
November 2014, U.S. Trademark Law: The U.S. Supreme Court heard oral arguments this month in a highly contentious trademark case, &B Hardware, Inc. v. Hargis Indus., Inc., regarding whether a finding of no likelihood of confusion by the Trademark Trial and Appeal Board (TTAB) during an opposition proceeding (which happens during the trademark registration process at the USPTO) precludes the opposing trademark owner from later litigating the same issue in federal court. A ruling in favor of B&B Hardware means brand owners that lose at the TTAB on a claim that a junior applicant’s trademark application is likely to cause confusion with their senior mark could be barred from asserting a likelihood of confusion claim against the same trademark in a future trademark infringement case in federal court where damages or injunctive relief are at stake. The Justices appeared to be divided on the issue during oral argument, and the final decision will likely not issue until the spring of 2015. We will keep you updated on the status of this case as it changes.
If you have any questions, please do not hesitate to contact us.
In Pro Bono news, Sabety +associates, PLLC is proud to be assisting the non-profit environmental group Riverkeeper (www.riverkeeper.org) in a litigation that raises a number of issues regarding computer modelling of the environmental effects of a nuclear power plant (yes, Indian Point).
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