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Intellectual Property Report

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Baker Botts Intellectual Property Practice COVID-19 Report
As IP entities throughout the world respond to the COVID-19 pandemic and adjust their operations accordingly, we want to keep our clients informed so that they do not miss any deadlines or obligations during this tumultuous time. We will continue to update this report as the situation develops.
Read the latest update here. To read more Baker Botts COVID-19 coverage, click here.

Five Predictions on how the COVID Financial Crisis will Impact Patent Prosecution
Matthew Welch
Patent prosecution, in many ways, is reflective of current economic conditions. Decisions like whether to file a new patent application, whether to continue prosecution, and whether to abandon an application are all made, at least in part, based on financial constraints. When a recession occurs, it creates ripple effects across patent prosecution. By analyzing these ripple effects from past recessions and locating patterns, one can predict how the COVID Crisis may impact patent prosecution today. To that end, this article analyzes two statistics—number of applications filed per year and number of abandonments per year—in the years preceding, during, and immediately after the Dotcom Bubble and Subprime Mortgage Crisis and makes five predictions on how the COVID Crisis may impact patent prosecution now and in the coming years. However, if the COVID Crisis is quickly resolved there may be a V-shaped recovery leading to only minimal impact on patent prosecution.
To read the full article, click here.

Schrödinger’s Patent Paradox
Nick Schuneman, John C. Williams
Borrowing from a famous (albeit macabre) thought experiment in which the fate of a domesticated cat is surrendered to the whims of quantum physics, legal scholars have hypothesised the existence of "Schrödinger’s patents" - that is, patents that are simultaneously invalid and valid. Courts have echoed this conjecture. For example, in Crossroads Systems (Texas), Inc v Dot Hill Systems Corp, the court noted, “The possibility that the patent at issue might ultimately be adjudged both valid (with respect to the two products for which there was privity) and invalid (with respect to the remaining four products) – resulting in a fundamentally inconsistent result since patent validity is a single issue.” Similarly, the court in Power Integrations, Inc v ON Semiconductor Corp hypothesised that a patent “found invalid in a prior action” against one set of accused products may survive and “later [be] found valid” as to different accused products.
To read the full article, click here.
*This article was previously published in the Intellectual Property Magazine - May 2020.

How Will the Economic Downturn Impact U.S. Patent Practice?
Rob Maier
The global impact of the COVID-19 pandemic has been both significant and far-reaching. With large swaths of the U.S. economy ground to a halt, experts forecast that the pandemic has sparked what likely will be the worst recession in generations. These are surely unprecedented times, and it is difficult-to-impossible to predict much with any degree of certainty. That said, history has a tendency to repeat itself, and a look back at past economic declines provides a glimpse of what is to come, so that companies, intellectual property practitioners and other stakeholders alike can plan and strategize accordingly.
To read the full article, click here.
*This article was previously published in the New York Law Journal on May 27, 2020.

How USPTO Examiner Type Affects Patents: Part 1
Dr. Michael Sartori, Matthew Welch
We gathered data from the LexisNexis PatentAdvisor database for each year from 2009 to 2019, for examiners in each of eight nondesign Tech Centers at the USPTO. Examiners are categorized into three different types, and the data shows that certain types of examiners allow disproportionately more and examine disproportionately more U.S. patents each year than other types of examiners, resulting in few allowing many, and many allowing few.
To read the full article, click here.
*This article was previously published in Law360 on May 15, 2020.

Strategies for Addressing Proposed AI Regulations to Coexist with IP Law
Paul Ragusa
Artificial Intelligence (AI) continues to grow in prominence and adoption in disparate industries throughout our economy. For example, the World Intellectual Property Organization (WIPO) suggested in a 2019 report that there is "an increased interest in the practical uses and industrial applications of AI technologies." In recognition of this evolution, governmental bodies have begun to propose regulations or policies to address perceived issues including protection, accountability, and preventing potential harm relating to AI.
To read the full article, click here.
*This article was previously published in the Intellectual Property Magazine in May 2020.

California Consumer Privacy Steams Ahead even as the Economy Stops
Cynthia J. Cole, Brooke Chatterton, Natalie Sanders
It would appear that nothing can stop the momentum that is the California Consumer Privacy Act (CCPA) and the privacy advocates who want the people to decide, directly, how their data is used. The privacy advocacy group Californians for Consumer Privacy, headed by Alastair Mactaggart, is moving ahead with plans for an omnibus privacy regulation through a ballot initiative which will add a virtual lead barrier around certain amendments to the CCPA, making them impenetrable by amendment, repeal or replacement without another voter initiative unless the original initiative specifically allows for legislative altering.
To read the full article, click here.

May 2020 Intellectual Property Report Recap
In case you missed it, here is a recap video of our May 2020 Intellectual Property Report that looked at:
  - Global Overview of IP Entity Responses to COVID-19 Crisis
  - Supreme Court Bars Appeal of PTAB Time-Bar Decisions
  - Supreme Court Holds That “Willfulness” is Not a Prerequisite to an Award of Profits in Trademark Infringement Actions
  - First Quarter 2020 Federal Circuit Law Update
  - Open to Close: Empirical Study of Patent Case Termination Times
  - Damages in Hatch-Waxman: What’s at Risk From an At-Risk Launch After the Market is Created?
  - Inline Linking: Embedded Content Might Violate Copyright
  - Federal Circuit Overturns Trademark Board, Green Lights Color Product Packaging Trade Dress as Being Capable of Inherent Distinctiveness

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