Ideas

Intellectual Property Report: December 2017

Firm Thought Leadership
Supreme Court Hears Arguments in Oil States Energy Services LLC v. Greene’s Energy Group LLC
Dr. Amy Song, Jennifer C. Tempesta
On November 27, 2017, the United States Supreme Court heard oral arguments in the much-anticipated case Oil States Energy Services, LLC v. Green’s Energy Group, LLC, U.S., 16-712. In this case, the Petitioner Oil States challenges the constitutionality of inter partes review, arguing that “IPR violates Article III by permitting the Executive to exercise the Judicial power over matters which, from their nature, were the subject of a suit at the common law.” The issue at the Court is:
Whether inter partes review, an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents, violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.

To read the full article, click here.

Patents for Humanity: Five-Years of Global Reach
Margaret M. Welsh
While many companies are working on new medicines and technologies to combat global health issues, the Patents for Humanity Program at the United States Patent and Trademark Office (“USPTO”), currently in its fifth year, aims to incentivize innovation and encourage even more companies to take on these challenges. Malaria is one example of the many current global humanitarian challenges. According to the World Health Organization, a child under the age of five dies every two minutes from malaria. One main barrier to eliminating malaria globally is the lack of efficient and wide-spread detection methods, as some of the current detection methods are costly and time-consuming, thus limiting their adoption. While the number of malaria cases have significantly decreased over recent years, elimination of malaria remains a costly goal (around US$ 2.9 billion). However, as declared by the World Intellectual Property Organization, innovation has the power to improve lives.

To read the full article, click here.

Connected Devices and the Right-To-Repair Movement

David Bailey*, Sandra Lee
The market for consumer devices connected to the internet has ballooned in recent years, and many household products, ranging from washing machines to light bulbs, are being adapted with software to enable connectivity. While the opportunity to creatively harness the data produced by connected consumer devices has generated perhaps the most interest among companies, the increasing prevalence of copyrighted software in these devices also presents companies with the ability to create after-sale value using post-sale controls. The software powering connected devices can be sold subject to an End User License Agreement (“EULA”), allowing companies to, amongst other things, offer lower prices and reach a wider market by including field-of-use restrictions. Device software can also include technical measures to prevent third parties from accessing the device software, which can help companies compete in the aftermarket for service and repair of their devices. However, while these post-sale controls can create value, the restrictions companies put in place can have unforeseen implications, such as making it more difficult for customers to repair the products they have purchased.

To read the full article, click here.

*David Bailey, a Baker Botts law clerk, assisted in the preparation of this article.

 

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