By Julie A. Laemmle
In 2015, BladeRoom Group, Ltd. (“BRG”) and Bripco (UK) Limited (“Bripco”) filed suit in the United States District Court, Northern District of California, alleging that Facebook as well as Emerson Electric Co., Emerson Network Power Solutions, and Liebert (collectively “Emerson”), stole its designs for pre-fabricated modular facilities to build the Facebook data center in Lulea, Sweden. The lawsuit also contended that Facebook published the data center ideas on an Open Compute Project blog in violation of the Open Compute rules, which stipulate that members can only share intellectual property with the owner’s consent. BRG ultimately sought $365 million in damages from its claims for trade secret misappropriation, breach of contract and violation of California’s Unfair Competition Law.
BRG claims it met with the Facebook and Emerson executives in the summer of 2011 and discussed BRG’s technology shortly thereafter. Subsequent to this meeting, Facebook asked BRG for Continue reading Recent Case Highlights the High Price of Trade Secret Misappropriation
By Meghan Cox; Jake Smith, Wyatt Summer Associate 2018
Knight First Amendment Institute at Columbia University v. Trump
Most Americans would agree that Donald Trump has no greater platform than Twitter. The self-proclaimed “Ernest Hemingway of 140 characters” understands that he can maximize his influence through the @realDonaldTrump account because tweeting provides the most direct interaction with constituents. But unlike Hemingway, who is renowned for his “iceberg theory” of writing—in which a story’s deeper meaning is veiled under simple innuendos and symbolism—President Trump leaves little to a reader’s imagination. His direct, and often abrasive, rhetoric has led many readers to reply in disagreement, and, in turn, Trump has developed a propensity for blocking these readers on Twitter. Now that Trump is blocking people in his capacity as President, his so-called “haters and losers” may have recourse under the Constitution. Continue reading Blocked: Knight Institute Fractures Trump’s Twitter Shield
By Julie Laemmle; Alicia Humphrey, Wyatt Summer Associate 2018
In a recently released ruling, the Trademark Trial and Appeal Board (“Board”) dismissed PYRAT RUM’s opposition to registration of PIRATE PISS for beer, ale and lager. Patrón Spirits International AG v. Conyngham Brewing Company, Opposition No. 91226939 (June 8, 2018). The Board, in an opinion authored by Administrative Trademark Judge Thomas W. Wellington, held that PIRATE PISS for beer is not likely to be confused with the already-registered mark PYRAT for rum. By rejecting PYRAT RUM’s challenge, the Board is allowing Conyngham Brewing Company’s application for registration to proceed.
In dismissing the Opposition, the Board took into account a variety of considerations commonly referred to as the “du Pont factors.” The opinion, organized according to the du Pont factors, found the following: Continue reading PYRAT rum and PIRATE PISS beer not confusable, according to TTAB
This article was originally published on Commercial Appeal, part of the USA Today Network, as an opinion piece written by Mark Vorder-Bruegge. Click here to view the original publication.
The Federal Communications Commission has now repealed its own 2015 “Net Neutrality” regulations. As controversial as this has been, it is just a small part of the federal government’s massive policy failure concerning the Internet.
Media reports over the past 15 years have detailed extensive horror stories of monopolistic service options, consumer price-gouging, frequent outages, and downright hostile support personnel.
A truly legitimate policy would be something like this: “High-speed, high-quality Internet access available to everyone at competitive prices, with minimal service disruptions and effective, user-friendly provider support.”
No version of the FCC regulations or any other agency initiatives, or Congress, or any president, has ever adopted a comprehensive policy of this type.
Continue reading Net Neutrality Repeal is Anti-Consumer but the Problem is Even Bigger
By Stephen Hall
“Adjudication:” a proceeding which leads to a judicial decision
On November 27, 2017, the Supreme Court heard arguments concerning a challenge to the most frequent form of patent challenges before the United States Patent and Trademark Office (“USPTO”), known as inter partes review (“IPR”). The USPTO is a federal agency empowered by Congress to grant patents and perform other functions related to patents. Its other functions include the authority to review previously granted patents and determine whether they were, in fact, validly granted.
In some cases, the need for review may occur because material not found by the patent examiner would have prevented the patent from being granted in the first place. With all the millions of patents, published applications and journal articles in this country and worldwide, as well as other written publications, industry standards and activities that could affect the right to a patent, there is no system of patent searching guaranteed to uncover every relevant item. Thus, for several decades, Congress has authorized Continue reading Is Inter Partes Review Unconstitutional?
By Stephen Hall
Once-in-a-generation patent reform was introduced in our country about five years ago. Similar to many major initiatives, it may have reaped a few unintended consequences as well. Andrei Iancu, current nominee for USPTO Director, has written about one of these consequences that affects certain procedures at the Patent Office. Among his many other writings, he also has written substantively concerning the patentability of software. This post examines Mr. Iancu’s writings on both topics, and offers some thoughts on how his thinking could affect future patent cases.
THE SUBSTANTIVE: WHEN SHOULD SOFTWARE BE PATENTABLE?
There is not and never has been a bright line rule on the patentability of software-based systems. Rather, patentability depends on the nature of the problem the system solves and the extent of the improvements over existing technology present in the solution.
Although most cases addressing the software issue begin by citing the 2014 Alice case by the Supreme Court, Mr. Iancu was Continue reading Will the New USPTO Director’s Practical Thinking Translate to a More Flexible Approach and Better Decisions?
Mark Vorder-Bruegge, Jr. has become a Fellow of the American College of Trial Lawyers, one of the premier legal associations in North America.
The induction ceremony at which Mr. Vorder-Bruegge became a Fellow took place recently before an audience of approximately 600 persons during the recent 2017 Spring Meeting of the College in Boca Raton, Florida.
Founded in 1950, the College is composed of the best of the trial bar from the United States and Canada. Fellowship in the College is extended by invitation only and only after careful investigation, to those experienced trial lawyers of diverse backgrounds, who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality. Lawyers must have a minimum of fifteen years trial experience before they can be considered for Fellowship.
Continue reading Mark Vorder-Bruegge Admitted to American College of Trial Lawyers
Matt Lubozynski, member of Wyatt’s Intellectual Property Protection & Litigation Service Team, wrote an article that was recently published in the Memphis Daily News. The article, “Patent-holders Feel More Secure Thanks to Patent-Infringement Lawsuit Ruling,” discusses how the Supreme Court’s decision in Halo Electronics, Inc. v. Pulse Electronics, Inc. has helped ease the rigid standards required to collect enhanced damages against a patent infringer.
Please click here to read the full article.
Written by Kate Van Namen, with contribution from Ryan Chambers
If a software company makes a free tool available online, can competing developers use it without the company’s permission? According to a California jury, the answer is yes, so long as the developers’ actions constitute fair use under The Copyright Act.
The Copyright Act, 17 U.S.C. §§ 101, et. seq. gives copyright holders exclusive rights to copyrighted material. However, fair use is a limitation on those rights and can provide a powerful defense to copyright infringement. Fair use is an exception to the rule that no one may use copyrighted material without permission from the owner, and allows copying for limited purposes such as criticism, comment, news reporting, teaching, scholarship, and research. If any given use qualifies as fair use, then no infringement has occurred. There are four factors which must be considered when evaluating whether the use of copyrighted material is fair: (1) the purpose of character of the use, including whether such use is Continue reading The Fair Use Doctrine’s Impact on the Future of Software Development
By Kacey L. Faughnan, Byron N. Brown, IV, and Sean G. Williamson
Businesses now have an additional weapon with which to protect their trade secrets. Effective May 11, 2016, the Defend Trade Secrets Act (“DTSA”) was signed into law. The DTSA provides a federal cause of action for the protection of trade secrets related to products or services used, or intended for use, in interstate or foreign commerce. Traditionally, trade secrets have not enjoyed the same protections under federal law as other forms of intellectual property, like patents, trademarks, and copyrights. Instead, owners of trade secrets had to rely upon a patchwork of state laws and various adoptions of the Uniform Trade Secrets Act to safeguard their innovations. The DTSA only broadens trade secret protection, leaving intact the parallel remedies available under state law. Yet, the implementation of the DTSA will help to alleviate the uncertainty and inconsistent results that previously occurred in some cases as a result of state-by-state variations in trade secret law.
The enactment of the DTSA provides increased forum choices for businesses taking legal action to protect trade secrets. Prior to the DTSA, federal courts were only available as a forum in limited cases. The new law also increases the amount of Continue reading The Defend Trade Secrets Act: What Employers Need to Know