{"id":35395,"date":"2018-02-20T23:50:30","date_gmt":"2018-02-20T23:50:30","guid":{"rendered":"https:\/\/writemyessayfree.com\/how-patenting-mobile-apps-defers-from-a-conventional-patenting-and-how-the-law-might-be-behind-on-the-patenting-of-apps"},"modified":"2017-08-16T06:32:25","modified_gmt":"2017-08-16T06:32:25","slug":"how-patenting-mobile-apps-defers-from-a-conventional-patenting-and-how-the-law-might-be-behind-on-the-patenting-of-apps","status":"publish","type":"post","link":"https:\/\/www.benedictsol.com\/blogs\/how-patenting-mobile-apps-defers-from-a-conventional-patenting-and-how-the-law-might-be-behind-on-the-patenting-of-apps\/","title":{"rendered":"how patenting mobile APPs defers from a conventional patenting and how the law might be behind on the patenting of APPs"},"content":{"rendered":"
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how patenting mobile APPs defers from a conventional patenting and how the law might be behind on the patenting of APPs<\/p>\n

Paper Guidelines________________________________________
\u2022 Select a topic of interest to you that is related to items in the course syllabus
1. Topic MUST involve areas included in the course outline
2. If you are having difficulty thinking of a topic, consider:
1. Hypothetical examples we have discussed in class, in particular the hypotheticals where the law has not quite caught up to technology, and how this impacts the field of engineering
2. Why you registered for the class, and what topics you were hoping were discussed. If something of interest was not discussed, this is a good opportunity to research it.
\u2022 Paper Format
1. Cover Page (name, course, paper title)
2. Table of Contents
3. Abstract \/ Executive Summary (1\/2 to 1p) \u2013 one can read this and know what paper is all about
4. Introduction \/ Background (1-2pp) \u2013 set the stage for the \u201cstory\u201d you will tell
5. Narrative \u2013 organized by sections (6-8pp) \u2013 address the topic
6. Conclusions \/ Summary \/ Recommendations (1-2pp) \u2013 what do you think? suggestions, etc.
7. References \/ Literature Cited (WWW citations are acceptable if they include complete working clickable URLs)<\/p>\n

\u2022 Word Count = 3500+ Words
1. Regardless of page count, your paper should be a minimum of 3,000 words (use the word count feature of your word processor).
2. Figure about 10 pages @ 350 words or so would meet the minimum target
3. Do NOT count Cover Page, Table of Contents, appendix material; excerpts from regs\/laws; etc. \u2013 i.e. no fillers)
\u2022 Document Format
1. Times New Roman, size 12 font, or the equivalent (Arial 10-11; Calibri 11-12)
2. 1 Inch Margins
3. 1.5 or Double Spacing
\u2022 Use of References within the Paper:
1. DO NOT USE OTHER AUTHOR\u2019S MATERIAL AND CLAIM IT AS YOUR OWN
2. Recycling is generally good, but DO NOT RECYCLE A PAPER FROM ANOTHER COURSE
3. Law reviews are a good reference source for your topic but only as a reference \u2013 see other research resources via the College library
4. You may include limited amounts of other\u2019s material but only with appropriate references at the point of use
1. **Use footnotes at point of citation, and be sure to include in References Cited Appendix
2. Make sure you cite to the particular page number, paragraph, section, etc.
\u2022 Check paper for spelling & grammar (use automated features of word processor)
SUBMISSION
\u2022 Submit Paper via MOODLE in .doc or .docx format. Also Submit Paper via EMAIL in the same format
1. PDF References Cited and Include in Submission
\u2022 Paper is due by deadline discussed in class and\/or listed in the course syllabus.
\u2022 Unsubmitted or late papers will result in an I (Incomplete) grade & points deducted for late papers.
________________________________________<\/p>\n

For writing assistance, see: https:\/\/owl.english.purdue.edu\/owl\/section\/1\/
Academic Writing
These OWL resources will help you with the types of writing you may encounter while in college.
You may also want to check out the College\u2019s Writing Center at the Center for Academic Success.<\/p>\n

GLOBAL EFFORTS FOR INTELLECTUAL PROPERTY CONFLICT PREVENTION AND RESOLUTION: CONTINUED IMPACTS AND RECENT DEVELOPMENTS
By: John D. Murnane and Sean M. McCarthy*
In the U.S., the America Invents Act (\u201cAIA\u201d) continues to have a profound influence on the patent landscape. From the post-grant proceedings\u2019 inception in 2012, there have been over 5500 inter partes review (\u201cIPR\u201d) petitions filed with the United States Patent and Trademark Office (\u201cUSPTO\u201d). In 2016, the volume of the patent litigation in district courts decreased, while the number of IPR challenges at the Patent Trial and Appeal Board (\u201cPTAB\u201d) remained relatively the same\u2014thus allowing the PTAB to overtake the Eastern District of Texas as the busiest jurisdiction in the country for volume of contested patent filings. This shifting landscape from district court resolution to administrative resolution demonstrates the monumental impact that the advent of IPRs has had on the nature, duration, and cost of patent litigation in the U.S.
The AIA is not the only significant legislation that has been passed in the U.S. in an attempt to revamp intellectual property laws. In May 2016, Congress passed the Defend Trade Secrets Act of 2016 (\u201cDTSA\u201d) which, for the first time, codified a federal private cause of action for trade secret misappropriation. While the DTSA is in its infancy, it is expected to have considerable impact on trade secret litigation in the U.S., as well as business practices for effective trade secret portfolio management. This past year also saw the reintroduction of a bipartisan bill\u2014titled the \u201cTrade Protection Not Troll Protection Act\u201d\u2014 aimed at abusive non-practicing entity litigation at the International Trade Commission (\u201cITC\u201d).
Globally, the world watched as the United Kingdom voted to exit the European Union (\u201cBrexit\u201d). Brexit could have a detrimental effect on the operation of a Uniform Patent Court (\u201cUPC\u201d) in the European Union, because the UK is a required signatory for the UPC to come into effect. Though the UK has signaled that it will ratify the UPC Agreement as long as it remains a member of the EU, it made no mention of such a ratification in its exit plan. And going forward, it is uncertain as to what effect the UK\u2019s withdrawal will have on the UPC even should it be ratified, as only member states of the EU may be participants. Such unpredictability is a challenging proposition for businesses in the EU, and alternative dispute resolution such as arbitration may be an attractive substitute for litigating in a disjointed patent system.
I. The Continued Impacts of the America Invents Act
The America Invents Act was enacted in September 2011 as the most comprehensive U.S. intellectual property reform in decades. The AIA was enacted in an effort to better align U.S. patent laws with global approaches to filing, prosecution, and litigation. One of the most notable changes was the move from a \u201cfirst-to-invent\u201d to \u201cfirst-inventor-to-file\u201d system. But, by far, the most influential provision to date has been the introduction of IPR proceedings which allow a challenger (typically an accused infringer in a parallel filed litigation) to petition the U.S. Patent and Trademark Office (\u201cUSPTO\u201d) to invalidate a U.S. patent. Since the AIA\u2019s inception, over 5500 IPR petitions have been filed as of December 31, 2016.
The structure and limited scope of IPRs allow challengers to obtain final decisions on patentability within 18 months of filing their petitions with the USPTO. In particular, the PTAB is statutorily required to issue final decisions in IPRs within 12 months from institution of the proceeding. When compared to the median 2.5 years for time-to-trial in district court, and the cost effectiveness of IPR validity challenges, it is unsurprising that the PTAB became the busiest jurisdiction for patent disputes in 2016. The success rates for petitioners in obtaining institutions and favorable final decisions of unpatentability only further cement the USPTO\u2019s position as the leading jurisdiction for patent challenges.
In addition, while the AIA is still relatively new, it has endured numerous constitutional challenges\u2014thus strengthening its position as an avenue for patent validity resolution. For example, the regulations allow the PTAB to use the \u201cbroadest reasonable construction\u201d standard to interpret the claims, which many speculated was improper since patents are presumed valid once granted. In Cuozzo Speed Techs., LLC v. Lee, the Supreme Court upheld the use of the broadest reasonable construction standard for interpreting claims in an IPR proceeding. The unanimous Court found that the regulation was a \u201creasonable exercise of the rulemaking authority that Congress delegated to the Patent Office,\u201d and the broadest construction standard \u201chelps protect the public.\u201d
The availability of IPR challenges affords accused infringers considerable leverage in settlement negotiations\u2014even just the threat of filing an IPR can cause the district court plaintiff to alter its position in negotiation. And, because petitions must be filed within one year of the service of the complaint in the parallel district court action, this leverage is derived while the district court action is typically in its infancy and prior to any considerable expenditure of costs on behalf of the accused infringer. Interestingly, although post-grant proceedings have been considered as an alternative dispute resolution option for litigation in district court, the PTAB has itself recommended other alternative dispute resolution\u2014such as mediation or arbitration\u2014for efficient resolution of validity disputes as a result of the USPTO becoming the busiest U.S. jurisdiction for patent challenges.
II. U.S. Supreme Court and Other Influential Court Decisions and Their Impacts
A. Decisions Affecting Inter Partes Review
Cuozzo\u2019s upholding of the \u201cbroadest reasonable construction\u201d standard for claim interpretation in IPR proceedings is not the only favorable case for patent challengers. In determining whether to file an IPR petition, accused infringers need to evaluate the estoppel provisions that prevent the challenger from presenting invalidity claims in the litigation that the challenger \u201craised or reasonably could have raised\u201d in the IPR proceeding. Petitioners received welcomed clarification in March 2016 as to the interpretation of \u201creasonably could have raised\u201d in the Federal Circuit\u2019s Shaw Indus. Group, Inc. v. Automated Creel Sys., Inc. decision. There, the court held that estoppel did not apply to petitioned grounds that were not instituted by the PTAB. By limiting estoppel to only those grounds that were instituted, patent challengers were provided with a \u201csecond bite at the apple\u201d in the district court litigation for those prior art references that were not addressed in the instituted proceedings. This may afford accused infringers additional leverage in settlement negotiations.
But not all recent developments have been favorable to patent challengers. The Federal Circuit has recently reversed and vacated PTAB decisions at higher rates than previously, particularly where the PTAB found patents unpatentable as obvious. For example, in Arendi S.A.R.L. v. Apple Inc., the Federal Circuit held that common sense and general knowledge \u201ccannot be used as a wholesale substitute for reasoned analysis and evidentiary support, especially when dealing with a limitation missing from the prior art references specified.\u201d The court further noted that using common sense and general knowledge is typically invoked to supply a motivation to combine references, not to supply a missing claim limitation, and to the extent it is used to supply a missing claim limitation, it should be the exception not the rule. The Arendi case should be a strong tool in the patent owner\u2019s arsenal, and patent challengers need to ensure they include \u201creasoned analysis and evidentiary support\u201d in any obviousness challenge.
B. Other Influential Decided and Forthcoming Supreme Court Decisions
In the wake of Octane Fitness, the U.S. Supreme Court in Halo Elecs., Inc. v. Pulse Elecs., Inc., was petitioned to decide whether the Federal Circuit\u2019s clear and convincing standard was proper for awarding enhanced damages. The Court held enhanced damages need only be proven by a preponderance of the evidence instead of the more demanding showing of clear and convincing evidence. Further, the Court held that the Federal Circuit\u2019s two-part Seagate test was too rigid, and stated such a determination is left to the discretion of the district court \u201cto be guided by [ ] sound legal principles\u201d and limited to \u201cegregious cases of misconduct beyond typical infringement.\u201d
One need only to look at the aftermath of Octane to discern what consequences the Halo decision may have on enhanced damages. In Octane, the Court overruled a similar two-part rigid test, also by clear and convincing evidence, for awarding attorney\u2019s fees. The general consensus is that Octane made fee shifting in patent suits easier\u2014demonstrably, one study shows that pre-Octane there were 69 total requests for attorneys\u2019 fees, with only 26% being awarded; and post-Octane there were 144 total requests for attorneys\u2019 fees, with 41% being awarded.
Halo is not only important to consider in view of Octane, but also in the aftermath of the Supreme Court\u2019s decision in Commil. There, the Court held that a defendant\u2019s belief regarding patent validity is not a defense to induced infringement, which itself requires a finding that the defendant must know the acts constitute patent infringement. In the aftermath of Halo, Octane, and Commil, an accused infringer may find itself with a good-faith belief of patent invalidity, but ultimately found to be a willful infringer and assessed enhanced damages and attorneys\u2019 fees, similar to those seen in the wake of Octane. These decisions should be considered by an accused infringer in weighing its decision to seek alternative dispute resolution where enhanced damages may be avoided.
One additional case to monitor is T.C. Heartland LLC v. Kraft Foods Group Brands LLC which is currently docketed at the Supreme Court. The issue is whether the patent venue statute (28 U.S.C. \u00a7 1400(b)) is the sole and exclusive provision governing venue in patent infringement. Should the Supreme Court hold that \u00a7 1400(b) is the sole provision governing venue, forum shopping will be drastically reduced because plaintiffs will need to file suit in the jurisdiction \u201cwhere the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.\u201d This may drastically reduce the number of patent suits brought in the Eastern District of Texas (the second busiest patent jurisdiction), for example, which is typically considered a patent-friendly forum.
III. Legislative Efforts for More Fair and Uniform Fair Intellectual Property Protection
A. ITC Troll Legislation \u2013 Trade Protection Not Troll Protection Act
Other legislative efforts have continued in the patent realm. Last year, the Trade Protection Not Troll Protection Act was reintroduced as a bipartisan bill aimed at curtailing abusive non-practicing entity litigation at the International Trade Commission while maintaining protection for genuine American domestic industries.
Since the Supreme Court\u2019s decision in eBay Inc. v. MercExchange, L.L.C., it has been nearly impossible for a non-practicing entity to obtain an injunction because these entities cannot establish an irreparable injury, and monetary damages are almost always sufficient to compensate for the infringement. Accordingly, non-practicing entities proceeded to use the International Trade Commission as an avenue for seeking exclusion orders\u2014which effectively act similarly to injunctions\u2014in order to regain the massive leverage in settlement that the threat of injunction carries and which it lost through the eBay decision. The Trade Protection Not Troll Protection Act seeks to curtail those practices, requiring that while licensing activities may be used to show a required domestic industry, those licensing activities must \u201clead[] to the adoption and development of articles that incorporate the patent.\u201d Should this bill be signed into law, non-practicing patent owners may lose leverage in settlement discussions because the threat of an exclusion order will no longer be realistic.
B. Defend Trade Secrets Act of 2016
Aside from the realm of patents, Congress also sought to further protect against the misappropriation of trade secrets through a federal private cause of action. In May 2016, Congress passed the Defend Trade Secrets Act of 2016 (\u201cDTSA\u201d) which accomplished that objective. In particular, the DTSA allows \u201c[a]n owner of a trade secret that is misappropriated [to] bring a civil action \u2026 if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.\u201d The definitions of \u201cmisappropriation\u201d and \u201cimproper means\u201d are adopted from the Uniform Trade Secrets Act, with the added caveat that the DTSA expressly states that \u201cimproper means \u2026 does not include reverse engineering, independent deviation, or any other lawful means of acquisition.\u201d The DTSA allows a trade secret owner to bring a private action in federal court to seek (1) an injunction or a reasonable royalty; (2) damages for actual loss and unjust enrichment; and (3) double damages for willful and malicious misappropriation. The trade secret owner will be barred by the statute of limitations if the suit is commenced 3 years after the date on which the misappropriation was discovered or should have been discovered through reasonable diligence. Most notably, the DTSA allows a trade secret plaintiff to seek ex parte seizure orders\u2014which may be used not only as a remedy, but also to preserve evidence\u2014upon a showing of extraordinary circumstances.
Because the DTSA does not preempt state law, trade secret plaintiffs may now bring both federal and state claims for trade secret misappropriation. Importantly, trade secret law has traditionally been a product of common law, so development of the federal cause of action will take time due to the infancy of the DTSA. Due to the uncertainty of this act and the requirements the federal courts may impose, companies that maintain an extensive trade secret portfolio should review their confidentiality and nondisclosure agreements, as well as their procedures for trade secret documentation, as they may be required to describe the trade secret with particularity at the onset of the case\u2014akin to how local patent rules were developed and require the patent plaintiff to serve infringement contentions at the earliest stages of litigation.
IV. The Impact of Brexit on Planning and Managing Patent Dispute Resolution in Europe
On an international scale, the world watched last year as the United Kingdom voted to exit the European Union. What went largely unnoticed by the public as a whole\u2014but certainly not those in the patent field\u2014was the detrimental effect that the UK\u2019s withdrawal may have on the realization of a Uniform Patent Court (\u201cUPC\u201d) in the EU.
Recognizing that the fragmented procedures for patents and significant variations between national court systems were detrimental to innovation, the Contract Member States of the EU sought to establish a Unified Patent Court that would have exclusive competence regarding European patents. The UPC would consist of a Court of First Instance, a Court of Appeal and a Registry, with the Court of First Instance having a central division in Paris with sections in London and Munich. The UPC would consist of both legally qualified judges and technically qualified judges.
Despite the dream for a unified patent system, and the temporal proximity to realization, Brexit casts considerable doubt on whether the UPC will survive. In order for the UPC to come into existence, the UPC Agreement must enter into force\u2014but this requires the UK to ratify the agreement, and this will not be possible upon withdrawal because only EU member states may ratify the UPC. Interestingly, despite the Brexit vote and the UK\u2019s insistence on honoring its citizens\u2019 wishes, the UK indicated in November 2016 that it is proceeding with preparations to ratify the UPC Agreement. However, in the official policy document setting out its Brexit plans, there is no mention of the UPC.
The uncertainty of Brexit and the EU partnership, and in particular the unpredictability as to whether the UPC will ever be realized, presents challenges for businesses throughout Europe. With a disjunctive patent system, arbitration may be an attractive option for those parties who want to contract for procedures similar to those envisioned, but not yet realized, for the UPC.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

how patenting mobile APPs defers from a conventional patenting and how the law might be behind on the patenting of APPs Paper Guidelines________________________________________ \u2022 Select a topic of interest to you that is related to items in the course syllabus Read More …<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-35395","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/www.benedictsol.com\/blogs\/wp-json\/wp\/v2\/posts\/35395","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.benedictsol.com\/blogs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.benedictsol.com\/blogs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.benedictsol.com\/blogs\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.benedictsol.com\/blogs\/wp-json\/wp\/v2\/comments?post=35395"}],"version-history":[{"count":0,"href":"https:\/\/www.benedictsol.com\/blogs\/wp-json\/wp\/v2\/posts\/35395\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.benedictsol.com\/blogs\/wp-json\/wp\/v2\/media?parent=35395"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.benedictsol.com\/blogs\/wp-json\/wp\/v2\/categories?post=35395"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.benedictsol.com\/blogs\/wp-json\/wp\/v2\/tags?post=35395"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}