The IP Beacon, January 2013

01/30/2013

The IP Beacon is a Haynes and Boone Newsletter highlighting current issues in Intellectual Property Law. Articles featured in the January 2013 issue include:

Case Study: Valuable IP Lessons from the $8.1 Million Mixed Chicks Trademark and Trade Dress Victory
On November 2, 2012, a California jury returned an $8.1 million verdict in favor of Mixed Chicks, LLC against Sally Beauty Supply LLC. The jury found that Sally Beauty had infringed the MIXED CHICKS trademark and the trade dress of Mixed Chicks' premium hair care products. The verdict was notable not only for its relatively large size in a trade dress enforcement litigation, but also because it included a finding of $7.275 million in punitive damages along with $839,535 in actual damages. This article details some lessons and practical tips from the case that are valuable for all IP practitioners and owners of trademarks, trade dress, design patents, and copyrights.

One Patent (and Court) to Rule Them All: An Unexpected European Decision?
The European Unified Patent Court and Unitary Patent were approved December 11, 2012 by the European Parliament. Hailed by many as an important step forward for European competitiveness in the intellectual property marketplace, the international agreement creating the Unified Court is set to go into effect after the ratification process. The European Union Unitary Patent would then concurrently become an available option at the European Patent Office. Based on the current political climate and Parliament voting statistics, it appears likely that both will be effective for at least 25 member states by January 1, 2014. This article reviews the details of the Unified Patent Court and Unitary Patent and differences compared to the European Patent presently available, and addresses some issues that may arise when the two come into effect.

Impact of the Patent Law Treaties Implementation Act of 2012
The Patent Law Treaties Implementation Act of 2012 ("PLT Act") was enacted on December 18, 2012, and implements two international patent treaties that Congress approved in 2007 but which were not finalized until late last month: the Hague Agreement Concerning International Registration of Industrial Designs (the "Hague Design Treaty") and the Patent Law Treaty. The PLT Act better aligns United States law with that of the international patent community and, according to the Congressional Research Service's summary of the law, "[s]tandardizes application procedures to be consistent with other member countries." This article reviews some of the changes that should benefit patent applicants and owners by providing a more uniform system to apply for and maintain patents.  

Step Right Up and Adjust Your Patent Term: Court Finds Improper PTO Calculations
The U.S. Patent and Trademark Office ("PTO") has been improperly calculating patent term adjustment for some patents, specifically in cases where prosecution of the underlying application involved the filing of a Request for Continued Examination more than three years after the original filing, according to the decision in Exelixis, Inc. v. Kappos late last year. The clock is running on requests for relief for any improper calculations made on recently issued patents. This article provides a few practice tips for how to deal with recently issued patents and handle future application prosecution.

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