The IP Beacon, April 2012

04/30/2012

The IP Beacon is a Haynes and Boone Newsletter highlighting current issues in Intellectual Property Law. Articles featured in the April 2012 issue include:

Breaking the Chains of Prometheus: Practical Claim Drafting
In its latest decision addressing patent-eligible subject matter, the Supreme Court held that claims involving diagnostic- and therapeutic-type processes included only elements that either informed "a relevant audience about certain laws of nature" or consisted of "well-understood, routine, conventional activity already engaged in by the scientific community," and thus, were "insufficient to transform unpatentable natural correlations into patentable applications of those regularities." This article suggests practical claim drafting techniques that may allow claims to similar types of inventions to be upheld in light of the Prometheus decision. 

Source Code Found Too Late in Software Copyright Infringement Case
In a recent decision, the Court of Appeals for the Federal Circuit upheld a "finders-keepers, losers-weepers" approach to copyright infringement. The court dismissed a copyright infringement case under the doctrine of claim preclusion because the original source code had been lost and not entered as evidence in a prior case even when, later, the original source code was found and produced for the case in suit. This result provides an important reminder to: i) archive all versions of your source code or risk losing the evidence you need to successfully assert your copyright and ii) ensure you have sufficient proof of infringement before initiating your suit.
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Fraud Alert: Trademark Scams
Scam trademark notifications have been a nuisance to brand owners for years. With trademark registrations being public record, unscrupulous companies may prey on trademark (and patent) registrants by using information from actual registrations in an attempt to deceive registrants into paying for unneeded or phantom services, including services already performed for free as part of registration by the United States Patent and Trademark Office (USPTO) and counterpart agencies in other countries. Companies and business owners should beware of notices they receive that claim to originate from official trademark offices and vendors, because these notices may be illegitimate. This article provides some examples of illegitimate notices so they may be recognized upon receipt. 

Yahoo! v. Facebook: Clicking Through the Blogosphere Bias
On March 12th, Yahoo! filed a patent infringement lawsuit in the Northern District of California alleging that Facebook infringes ten Yahoo! patents. Immediate public reaction has been widely critical of Yahoo!, from interpreting statements made in the filing as a claim by Yahoo! that it "patented the whole idea of Facebook" to characterizing Yahoo! as "relentlessly stagnating as Facebook innovated." Such is to be expected from the blogosphere with regard to parties asserting software or Internet-related patents. This article summarizes the subject matter of the asserted Yahoo! patents in an attempt to determine the accuracy of Yahoo!'s critics and speculates on the future of this litigation.

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