The IP Beacon, August 2015

08/03/2015

Click here to view the August 2015 IP Beacon PDF.

The IP Beacon is a Haynes and Boone Newsletter highlighting current issues in Intellectual Property Law. Articles featured in the August 2015 issue include:

Pretty Pills, Please – The FDA’s Focus on Generic Drug Appearance Creates Other Concerns

The FDA recently issued final guidance regarding the size, shape, and other physical characteristics of generic-manufactured tablet and capsule dosage forms. The guidance noted that differences in physical characteristics of a dosage form could affect patient compliance and acceptability of medication regimens, or could lead to medication errors. The main reason for the FDA’s guidance appears to be that many patients can experience difficulty swallowing tablets and capsules. But these issues can create impacts on the cost and availability of generic drugs, and may require an additional class of patents to be evaluated in clearing third-party patent rights when filing an ANDA and certain 505(b)(2) applications.

High Court Addresses the Effect of Opinions on Charges of Inducement of Infringement

On May 26, 2015, the Supreme Court held that an ultimately incorrect, but good faith belief in invalidity of a patent is not a defense to a claim for induced infringement in Commil USA, LLC v. Cisco Systems, Inc. However, in cases where the asserted claims are held invalid, an invalidity holding still operates as a defense because where a patent “is shown to be invalid, there is no patent to be infringed.” This article explores the practical impact of Commil on opinion practice.

The U.S. Supreme Court Declined to Review Oracle v. Google, but the Billion-Dollar Case is Just Booting Up

On June 29, 2015, the Supreme Court denied Google’s petition for certiorari, refusing to review the long-running battle over the scope of software copyright protection. The suit began almost five years ago when Oracle sued Google for infringing Oracle’s copyright on portions of the popular Java software that allowed Java to communicate with other programs. After licensing negotiations over the software failed, Google copied portions of the Java code for use in its Android operating system. While Google independently recreated much of the implementing code, it allegedly copied Java’s declaring code that provided the taxonomy system Java used to name routinely-used functions.

U.S. Federal Courts Now Must Be Bound by TTAB Decisions to a Greater Extent

In a monumental decision, the United States Supreme Court recently ruled that Trademark Trial and Appeal Board (“TTAB”) decisions carry preclusive effect in subsequent federal district court decisions so long as the ordinary elements of issue preclusion are met. The ruling indicates that, where use is the “paramount” issue in a court case, a TTAB decision that at least peripherally contemplates marketplace use will have preclusive effect.

District Court Rejects Plaintiffs’ Narrow Construction of the Term “User” in the DMCA’s Safe Harbor § 512

The Internet is inundated with user-uploaded text, pictures, music, and videos, many of which are subject to copyright protection. This material appears to be available—gratis—at the click of a mouse on various media hosting websites owned and managed by online service providers (“OSPs”), e.g., YouTube. This online divertissement may be a violation of copyright law when the copyright owners do not grant permission to display their material. Each instance of infringing material may also be a breach of contract because the OSPs’ terms of use invariably forbid users from uploading copyrighted material absent permission from the rightful owners.

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