The IP Beacon, August 2011


The IP Beacon is a Haynes and Boone Newsletter highlighting current issues in Intellectual Property Law. Articles featured in the August 2011 issue include:


.XXX Marks the Spot? Trademark Owners Can Block the Use of Their Marks in .XXX Domains

First proposed over a decade ago, .XXX top-level domains have now been approved and will be launching soon. The domains are intended for use by the adult entertainment industry, but for trademark owners in other industries, the potential association of their valuable brands with .XXX domains could have serious consequences.


Contemplating Pliva v. Mensing

Federal laws governing the labeling of generic drugs preempt state law failure-to-warn claims against generic drug manufacturers, according to the U.S. Supreme Court's 5-4 opinion in Pliva Inc. v. Mensing, No. 09-993 on June 23, 2011.


It's Not Easy Being Green: The Ins and Outs of Environmental Touts

In today's green-focused economy, companies have incentive to tout their products' green credentials to customers in multimedia advertisements, online marketing, and product labels. Such touting, however, is not without risk; it may give rise to liability under, among other things, the Federal Trade Commission Act ("FTC Act").


Proceed With Caution: Does that Employment Agreement Have a Proper IP Assignment?

On June 6, 2011, the Supreme Court ruled that the Bayh-Dole Act does not automatically vest title to federally funded inventions in federal contractors in Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems, Inc., et al. The Bayh-Dole Act generally enables non-profit organizations, such as universities, to obtain title to inventions made under federally funded research programs while reserving march-in rights to the federal agency providing the funding. From a practical viewpoint, the entire litigation including this appeal could have been easily avoided through proper drafting of the IP clause in the employment agreement at issue.


The Status Quo Wins: Clear and Convincing Proof is Still Required to Invalidate Patent Claims

On June 9, 2011, the Supreme Court ruled in Microsoft Corporation v. i4i Limited Partnership that "clear and convincing evidence" is still the standard of proof required to invalidate a patent. Section 282 of the Patent Act states that "a patent shall be presumed valid" and that "[t]he burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity." The Court relied on its own precedent to validate the Federal Circuit's consistent application of the clear and convincing standard of proof to support an invalidity defense.


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