From the Desk of JMB: Heading for the Nearest Brexit? An optimistic view of IP in the UK

Following a short visit to the UK with Dr. Mike Hammer, head of our US practice, I can safely say that Her Majesty’s IP economy is not merely alive and kicking, but full of opportunities. Some may say that this is due to the implications of Brexit, while others may say that this is despite them. But there they are, nonetheless, and I will try to relate to those that as a visitor, I have identified.

  • Exchange rate fluctuations
  • Patent Box advantages
  • GB and DE and GPPH
  • Design and Trademark – separation anxiety
  • The rediscovery of the UK

Let’s start at the beginning.

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From the China Desk of JMB: Celebrating The Year of the Rooster (Every Crowd Cloud has a Silver Lining)

The new Chinese year is the Year of the Rooster. As we move away from the western new year celebrations, I would like to congratulate the Chinese entrepreneur, wherever he or she may be. It’s easy to tell when the Chinese entrepreneur is doing something right –  all you need to do is to look at the faces of their counterparts in the West; they’re green with envy. I have no other explanation than that of pure envy for the myriad entrepreneurs or would-be entrepreneurs in the West and their cries of ‘foul’ in response to the Chinese copying of products from public postings on the internet.

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From the Desk of JMB: IP Laws and Safety – Why Every Counterfeit Has a Silver Lining

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I have suggested, on more than one occasion, that anti-IP lobbyists are the equivalent of modern day Luddites. However, many of us, at some stage in our life, have experienced a temptation to buy an article which they know flouts the rigid possessiveness of intellectual property rights. Merely being IP attorneys doesn’t exempt us from that temptation, per se, but it has led me to consider how IP law affects the lives of non-IP practitioners; the distinction between IP practitioners and everyone else (the other 99.99999% of people that inhabit this planet) being important merely in terms of awareness of IP law.

So how does IP affect our everyday lives? IP rights are everywhere, and underlie  much of our everyday activities, every time we go shopping, pick up a phone or go for a drive. The list is endless. But what is its purpose? And once we have established its purpose, are there any unintended benefits that it provides?  Are there any direct, tangible benefits that those who do not actually own IP receive due to the existence of IP laws?

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From the Desk of JMB: An English Virgin® et al: Boldly Going Where No Man Has Gone Before

I have an admission to make. If I had to name a single individual who has captured my imagination over the past few decades, it would be Sir Richard Branson. I don’t know him personally. However, from the chutzpa he employed in 1967 when, aged 17, he sold advertising for his school magazine to the two local banks, through establishing the rather cheekily (or should that be “saucily”?) named Virgin Records and his subsequent successes in air travel and now space travel, spanning a period of close to 5 decades; he is everything that we in the IP profession can appreciate as a serial entrepreneur and visionary. In short, in the immortal words of Star Trek’s William Shatner, he has gone “where no man has gone before” (well, pretty much, anyway).

His achievements are all the more impressive as, throughout the early stages of his entrepreneurial career, as told in his autobiography “Losing My Virginity”, he operated on a shoestring budget, and generally was denied the backing of institutional banks that you would think might be available when, for example, setting up an airline. This, more than anything else, underscores his achievements, and his pioneering attitude of “Screw It, Let’s Do It” (this, coincidentally, being the name of another of his books.

So why do I choose to bring this up now?

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From the Desk of JMB: Hold the Mayo?: Sequenom at the US Supreme Court

Inventors are an intrinsically optimistic lot.  Most people when faced with a problem will either make do, or will come up with a temporary solution that allows us to get on with our day.  But inventors know that progress is not achieved by just making do, and that the world can be improved, even incrementally, through that nearly undefinable creature known as innovation, and through practical applications of scientific discovery.

I think that patent attorneys share some of this optimism.  Don’t laugh!  I really do believe that for us to zealously represent our clients before the seemingly arbitrary bureaucracies of the world, we have to be optimistic.  When faced with rejections by patent examiners, we persist because we have a deep-rooted belief that there is nearly always some way around the obstacles set before us.

This sense of possibility is why in the first year or so after the rather grim U.S. Supreme Court decision in Mayo v. Prometheus, I counseled my clients that although Mayo had changed the U.S. patenting landscape for medical diagnostic methods, and indeed made things more challenging, the sky had not fallen, and we could and would find a way forward.

It’s been four years now, and I’m going to be blunt:  Mayo did bring down the sky on certain diagnostic method claims.

But like I said, I’m an optimist.

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From the Desk of JMB: 1000 Reasons Why You Should Not Ignore China Invention Promotion Strategy in the Post-Digital Age

When I was at high school, one of our teachers used to tell us that there were 1,000 reasons for doing an assignment. “The first one”, he would say “is because I say so”, and as for the rest? those, he would say “don’t matter”. When seeking to promote new inventions internationally, even if you have no intention of being active in China, the first and most important reason why you can’t ignore China is because Chinese businesses and the Chinese marketplace won’t ignore you. (and it really may be that the other reasons don’t matter(!)

Inventors and designers of new products are likely to become irritated, frustrated and even insulted when their new products are copied by Chinese entrepreneurs. But how reasonable is this, and how much of it has to do with expectations which are unrealistic and essentially based on the fact that it can take a lot less time to copy products than it does to obtain IP rights through which such copying can be prevented?

A Typical Day in the Life of a Patent Attorney and an Inventor in the Post-Digital World

“Hi. I was told to come and speak to you about patenting my invention,” said inventor X as he steps through the door rather hesitantly, in a manner reminiscent of someone about to undergo a root canal. “Hello,” said I. “It’s nice to meet you. Tell me about your invention.”

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From the Desk of JMB: Why Synchronize IP Development with Product Development? A guest article from Dr. Sinai Yarus

This is the second in a series of articles dealing with Intellectual property health leading up to the IVC conference in Tel Aviv on 9-2-2016 on doing business in the US. In the first article Dr. Mike Hammer discussed general considerations for IP heath in 2016, and the benefits of an approach that encompasses multiple types of IP.  Here, Dr. Sinai Yarus describes how and when different types of IP can fit together in the development cycle of a product. 

Eighty percent or more of corporate assets are intangible. That means a business plan needs to include an IP strategy tailored to the business. Businesses based on developing new technology have a different IP strategy than businesses using existing technology, but everyone wants a slice of the IP pie.

Let’s talk first about businesses that make a product.

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From the Desk of JMB: 3 Keys for IP Fitness in 2016: A guest article from Dr. Mike Hammer

This is the first in a series of articles dealing with Intellectual property health, and the first leading up to the IVC conference in Tel Aviv on 9-2-2016 on doing business in the US.  

We live in a health-obsessed society, and particularly this week more than ever, as we turn the page on our calendars to 2016.  If there are any doubts, you need look no further than the briefest of internet searches.  A recent search of “health” AND “New Year’s Resolution” produced over seven million hits. And I’m not even going to bother looking at the results from substituting “fitness” in place of “health!”

With all those pixels (and even ink) being spilled about “how to be healthy in 2016,” one would think that there is a piece of critical, and before now unknown, information that must be cast to the four corners of our information ecosystem if we are to have a chance of making it to 2017.  But you and I know that while the rules haven’t changed, we are all human, and so need at least a yearly reminder of some common wisdom: eat moderately, don’t drink too much alcohol (though feel free to enjoy that coffee or tea!), get enough sleep, get some exercise, and stop to smell the roses with someone you care about more than every once in a while.

If only the IP world was as straightforward as our personal health!  In some ways, the guidelines for the IP health of a business in 2016 are simple and are well-known, even if a gentle reminder is worthwhile.  But in other respects, it could be a grave error to relate to intellectual property in 2016 as if nothing has changed in recent years.

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From the Desk of JMB: Counterfeiting Your Way Around Infringement

At the recent successful IPBCAsia meeting held in Tokyo, much was discussed about some of the same old issues. However as often happens when reviewing apparently familiar ground, new points of interest come to light.

One of the hot topics was the so-called ‘death by IPR firing squad’ – a reference to the fact that use of this tool (Inter Partes Review), which was introduced as part of the reforms of the America Invents Act as a way of challenging the validity of patents, has become so effective as to result in the invalidation of as many as 80% of the patents reviewed. Notwithstanding the fact there are those that think that from the outset only 20% of patents allowed by the USPTO are actually valid in the first place, it was suggested that one of the reasons for this incredible statistic is an apparent inequity between the standards of patentability as practiced and enforced by the USPTO during examination, as opposed to those applied during IPR proceedings.

As befits a congress concentrating on IP business, of all the questions discussed regarding patent monetization, one of those that I found to be of greatest interest was “what constitutes a high quality patent?” (more…)

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