Following the recent decision of the Court of Justice of the European Union in Meo (C-295/17) and a related case, HM Revenue & Customs (“HMRC”) has updated its guidance on the VAT treatment of contractual compensation payments for early termination of commercial contracts. Such payments, irrespective of whether described as compensation or liquidated damages, will now be subject to VAT. Continue Reading
USPTO and DOJ Promoting Innovation and Collaboration in Life Sciences
Beginning September 23, a free two-day workshop will address issues relating to innovation by life sciences companies, including IP and antitrust issues arising from collaborations and partnerships. The US Patent and Trademark Office (USPTO) is co-sponsoring the event with the Department of Justice. The program will address the role of patents in the research and development of therapeutics, diagnostics, and vaccines — particularly during pandemics —and the relative benefits of collaboration vs. competition. Continue Reading
At 40 Years Old, the Orange Book Gets a Fresh Look as FDA Seeks Comments on Patent Listability
Back in June, the United States Food and Drug Administration (FDA), “as part of an Agency-wide effort to modernize the Orange Book,” published a request for comments relating to patent listing. Apparently prompting this request was FDA’s recognition that New Drug Application Sponsors have “submitted patents for listing in the Orange Book, including certain types of device-related patents and REMS-related patents, for which there may be uncertainty regarding whether these are in fact the type of patents that must be submitted.” Continue Reading
USPTO to Defer Fees on COVID-19-related Provisional Patent Applications
On September 16, 2020, the United States Patent and Trademark Office (USPTO) announced a new pilot program for COVID-19 related inventions. The new program allows for the deferral of filing fees for provisional patent applications directed to a product or process related to COVID-19, where the product or process requires Food and Drug Administration (FDA) approval for COVID-19 use. In exchange for the fee deferral, the applicant must allow the technical subject matter disclosed in their provisional application to be made publically available in a searchable database the USPTO’s website immediately upon filing. This new and interesting program is intended to facilitate innovation. Continue Reading
Italian Competition Agency Investigates Major Cloud Computing Service Providers for Allegedly Unfair T&Cs
The Italian Competition Authority (AGCM) has recently launched investigations against global leading providers of cloud computing services. AGCM is concerned that the service providers’ terms & conditions violate Italian consumers’ protection rules.
In particular, AGCM alleges that the investigated providers are engaging in unfair business practices consisting of:
- improper collection of user data for commercial purposes;
- undue influence on consumers, whose consent to the collection and use of their personal data for commercial purposes is required in order to use the cloud storage service; and
- failure to clearly provide consumers with information on their right to withdraw from the contract and/or to access alternative dispute resolution mechanisms.
Time to Act Against Chinese Parallel Import of Foreign Cosmetic Products
Parallel import is not easily tolerated by brand owners. Parallel import products, sometimes referred to as grey market goods, create market distortions, attack the official supply chain, double the risk of product liability and dilute trademarks. Brand-owners know, however, that trademarks are not a viable tool to stop parallel import of foreign cosmetic brands into China, as the first sale of these cosmetics abroad exhausts their exclusive right in China.
However, holders of trademark rights on imported cosmetics in China can now take action against parallel import if the importers have violated local safety and product quality regulations, modified the product, or failed to adapt labeling to local mandatory requirements. As recently as 2019, legislative changes in China have opened to foreign cosmetic brands a strong and reliable avenue to stop parallel import of their products into China, while allowing them to import their not yet FDA-approved products through designated e-commerce platforms. This window of opportunity may close soon, however, if and once animal testing is abolished in China, which may happen as early as January 2021. Continue Reading
Guidance for UK Life Sciences Offered During End of Brexit Transition
With the Brexit transition period ending on December 31st, the UK’s Medicines and Healthcare products Regulatory Agency (MHRA) is issuing guidance for the UK Life Science industry – including guidance on clinical trials, market authorizations, and manufacture and supply, among other areas. The guidance will apply from the start of 2021. Squire Patton Boggs’ Triage Health Law blog provides more information in a recent post.
Tech Sprint for Innovations in Electronically-Delivered Adverse Action Notices
The Consumer Financial Protection Bureau is providing a new forum for innovation – designated as Tech Sprints – to generate “actionable ideas” for reducing regulatory burdens and improving consumer understanding of financial services. Tech Sprints will be held virtually, and competing teams will work to realize identified goals. The first Tech Sprint, to be held October 5-9, 2020, will focus on “developing a range of innovative approaches to electronically-delivered adverse action notices” required under the Fair Credit Reporting Act and Equal Credit Opportunity Act. Squire Patton Boggs’ Security & Privacy // Bytes blog provides more information in a recent post.
Ninth Circuit: Under the “Asserted Truth Doctrine” (f/k/a “Copyright Estoppel”) Authors of Nonfiction Cannot Later Claim a Work is Fictional to Pursue a Copyright Case
In an opinion that will be of particular interest to writers, the Ninth Circuit has confirmed that authors of non-fiction works cannot later claim that elements of their work were, in fact, fictional in order to extend the scope of copyright protection.
The plaintiff in Corbello v. Valli et al., Case No. 17-16337 (9th Cir., September 8, 2020) was the estate of the co-author of an autobiography of Tommy DeVito, one of the original members of the band the Four Seasons. Even though the work was never published, DeVito provided a copy of the autobiography to Frankie Valli and other members of the band who were working on developing a Broadway play based on the band’s history. The autobiography was admittedly very helpful in developing the play, Jersey Boys, which went on to become a huge success. Continue Reading
The Federal Circuit Expressly Declares that Juries Determine the Standard-Essentiality of Patent Claims
In Godo Kaisha IP Bridge 1 v. TCL Commun. Tech. Holdings Ltd.,[1] the Federal Circuit definitively answered the question: “Who determines the standard-essentiality of the patent claims at issue—the court, as part of claim construction, or the jury, as part of its infringement analysis?” According to this precedential decision authored by Judge Kathleen O’Malley: “Where . . . there are material disputes of fact regarding whether asserted claims are in fact essential to all implementation of an industry standard, the question of essentiality must be resolved by the trier of fact in the context of an infringement trial.”[2] With this opinion, the Federal Circuit reaffirmed its holding in the 2010 decision Fujitsu Ltd. v. Netgear Inc. (“Fujitsu”)[3] and rejected an interpretation that sought to require district courts to assess the essentiality of an asserted claim to an industry standard as a part of their claim construction analysis. Continue Reading
