International Challenges Help China and the EU Find Agreement on Technology Transfer

On December 30, 2020, after seven long years of negotiations, China and the EU concluded in principle the negotiations for a Comprehensive Agreement on Investment (CAI). The frayed political and trade relations with the US, as well as Brexit, convinced the EU members to put aside objections related to human rights violations and close the deal with China, now their major trade partner. The Chinese, hard pressed to offset the 2020 diplomatic set-backs, including the mishandling of the initial Covid-19 crisis, the Xingjian labor camps issue, and the Hong Kong crisis, and in need of alternatives to their strained relations with the US, were willing to make concessions — including some key provisions concerning China’s forced technology transfer.

If really and properly implemented by China, those provisions could advantage EU businesses against their US competitors. We review the provisions, compare them to similar commitments recently made by China with the US, and assess their possible impact on EU and US IP holders in China. Continue Reading

ITC Finishes 2020 with a Flurry of New Complaints

After a slow but steady start to 2020, the U.S. International Trade Commission (ITC) saw a flurry of new complaints filed in the second half of the year. Eight new complaints were filed in December, resulting in a total of 57 complaints filed in 2020. As discussed in previous posts (e.g. here and here), the ITC adapted to the COVID-19 crisis and demonstrated its ability to conclude investigations in a timely manner. The post-pandemic rush to the ITC demonstrates the confidence of litigants that the ITC will continue to be a reliable forum for resolving IP disputes. Continue Reading

New Provisions for EU-UK Pharmaceuticals

The UK Parliament and EU Commission have now agreed on a wide-ranging EU-UK Trade and Cooperation Agreement, focused on the supply of goods. Pharmaceuticals are highlighted in a number of areas. For example, Annex TBT-2 of the Agreement provides for recognition of Good Manufacturing Practice (GMP) inspections for medicinal products carried out in the other party’s jurisdiction, i.e. across the UK and EU. In his most recent blog here, Adrian Spooner explains this and other new regulatory and intellectual property provisions.

What Was Old Is New Again In IP Litigation — Thanks To Suspected Russian State-Sponsored Hack

Top technology trends in the legal profession for 2021 are likely to include artificial intelligence, block chain and cryptocurrencies, autonomous vehicles, digital health, and … court filings on paper. Following a recent widespread cybersecurity breach, the United States federal courts are prohibiting electronic filing of highly confidential documents. Parties must file such documents on paper or as electronic files on a secure electronic device.

In mid-December, the Department of Homeland Security (DHS) Cybersecurity and Infrastructure Security Agency (CISA) issued an emergency directive disclosing a cyberattack to the networks of local, state, and federal agencies, as well as private companies. According to CISA, malicious actors exploited SolarWinds’ Orion® product source code to hack into these networks. (SolarWinds describes Orion as a “powerful, scalable infrastructure monitoring and management platform designed to simplify IT administration for on-premises, hybrid, and software as a service (SaaS) environments in a single pane of glass.”) Earlier this week, United States intelligence agencies — including the FBI, NSA, and the Office of the Director of National Intelligence — stated that the attack was “likely Russian in origin.” In response to the cyberattack, the United States Courts suspended all national and local use of SolarWinds Orion. Continue Reading

Make it a double! Brexit Transition of EU Trademarks and Designs Accomplished

With the end of the transition period on 31 December 2020, the EU legislation governing the EU trademark and design system ceased to apply to the UK. While Brexit trade deal talks were in full swing, the SPB Team worked through all administrative details to comply with the new Brexit requirements, which took effect on 1 January 2021. Continue Reading

US Trademark Modernization Act Provides New Relief to Trademark Owners

TM word cloudFalse claims of use and fake specimens of use have bedeviled the US Patent and Trademark Office (USPTO) and legitimate trademark owners for many years. The Trademark Modernization Act of 2020 (“TMA”) — part of the COVID-19 relief legislative package signed by President Trump on December 27, 2020 — provides significant relief for trademark owners’ efforts to combat that fraud. As noted in a separate post, that omnibus legislative package provides relief to copyright owners by establishing a small claims tribunal system for copyright infringements. On the trademark front, the legislation makes it easier for trademark registrants to obtain injunctive relief and provides new mechanisms for challenging trademark applications and registrations on non-use grounds. These new procedures are intended to provide additional ways to combat fraudulent trademark applications and registrations. Continue Reading

Alternative Forum for Copyright Owners Finally Available

Copyright owners seeking damages under $30,000 now have the choice of adjudicating their claims outside of federal court. Passed as part of the December 2020 COVID-19 relief bill, the Copyright Alternative in Small-Claims Enforcement Act of 2019 (“CASE Act”) created an alternative small claims tribunal system that can adjudicate certain copyright infringement claims. Continue Reading

Twelve Cannabis Plant Patents and Counting

The year 2020 saw increasing acceptance of cannabis in the US, as indicated by legalization in another five states, proposed federal legalization, and the designation of cannabis (where available) as essential during the coronavirus pandemic. The United Nation’s recent reclassification of cannabis signals similar changes on a global scale. As a result of these changes, cannabis “growing” has evolved into a $14 billion industry in the US for which the benefits of federal laws, including bankruptcy and trademark protections, have been sometimes uncertain. The benefits of the US patent laws, however, are broadly available to innovators, and as demonstrated in 2020, this includes plant patents on cannabis. Continue Reading

Federal Circuit Endorses the Doctrine of Equivalents Again for Lilly’s ALIMTA®:  Different Amendment, Same Result

Back in July we wrote about the doctrine of equivalents (DOE) in bio/pharma cases in general, and the on-going saga of DOE in Lilly’s ALIMTA® litigation specifically. Last week, the Federal Circuit penned a new chapter, issuing a non-precedential decision in Eli Lilly and Company v. Apotex, Inc.

Didn’t this all end last June? Not quite.

Continue Reading

A French New Year’s Dinner and IP Rights

In 1988, the Danish movie called “Babette’s Feast,” based on a story by Danish novelist Karen Blixen (Isak Dinesen), earned an Oscar for best foreign language film. We remember this much-loved movie about loss, survival and the art of French food. For those of you who are interested in IP and are going to share the New Year’s Eve dinner with the very same people you have seen around the table in the last few months, we also offer a few ideas and fun facts about intellectual property in food typically served in France for New Year’s dinner that may help to raise some new conversation topics.

Babette’s Feast depicts a woman who at the end of the 19th century has ran away from Paris and the Commune rebellion and ends up in a small Danish village run by a very strict minister. She is hired as a maid by the minister’s daughters, who cannot really afford a maid, but understand that Babette does not have any place to go. The only connection Babette has kept with France is that she plays lottery and fifteen years later, she wins the Continue Reading