• Posts by David J. Powsner

    David J. Powsner is a partner in Nutter’s Intellectual Property Department, where he advises high-tech companies on a range of complex matters. Clients turn to David for his extensive knowledge of intellectual property law ...

David Powsner, a partner in Nutter's Intellectual Property Department, was quoted by Yahoo! Finance in “Twitter’s football video removals raise questions for all media” on October 13. The article highlights recent actions taken by two firms that specialize in policing copyrights online under the Digital Millennium Copyright Act (DMCA). The firms told Twitter to take down posts that included video clips of professional and college football games. 

DancingToddler_YouTube_DMCAThe U.S. Court of Appeals for the Ninth Circuit this week issued a decision with implications for owners of music and audiovisual works. The court ruled that copyright owners first must assess whether a use of their content is in fact lawful “fair use” before sending a takedown notification under the Digital Millennium Copyright Act (DMCA). Considering fair use involves a balancing of subjective factors, this newly-clarified requirement may make it logistically more difficult and time consuming for content owners to evaluate whether a use of their content discovered online qualify for takedown notices.

Posted in Patents

Google recently announced a “Patent Starter Program” that may prove a boon to emerging companies looking to kick-start development of patent portfolios. Patents awarded under the program will necessarily form part of a new patent pool known as the “License on Transfer Network” or LOTNET. While this may be a win-win situation for both Google and the start-up community, whether the new Google program will slow the pace of patent "troll" litigation, as some have surmised, seems questionable.

Tags: Licensing

Summary: The United States Patent and Trademark Office (USPTO) recently published its next wave of “guidelines” to help instruct patent examiners on how to evaluate patent eligibility under 35 U.S.C. § 101.  This represents the third publication in a little over a year since Alice Corp. v. CLS Bank Intl. was decided by the Supreme Court.  The update primarily provides summaries of some of the most recent decisions on subject matter eligibility, and also sets out four categories of “abstract ideas” that are not subject matter eligible: “Fundamental economic practices,” “certain methods of organizing human activity,” “an idea ‘of itself,’” and “mathematical relationships/formulas.”

Following on the heels of the Supreme Court’s decision in Alice v. CLS Bank, the United States Patent and Trademark Office (USPTO) issued subject matter eligibility guidelines for determining whether a patent claim amounts to “significantly more” than an abstract idea. The agency has now issued follow-on guidance in the form of eight fact patterns intended to demonstrate the abstract idea analysis in further detail. The fact patterns highlight some familiar themes that have emerged in the case law both pre- and post-Alice.

On December 16, 2014, the United States Patent and Trademark Office (USPTO) published long-awaited guidelines intended to help examiners determine the patent eligibility of a wide range of inventions from isolated genetic materials to computer-implemented methods. The new guidelines revise those published by the office earlier this year (discussed here), which drew heated criticism from some in the patent community as too vague with respect to examination of certain inventions and too onerous with respect to others.

Posted in Litigation, Patents

In the wake of the Supreme Court’s recent decision in Alice Corp. v. CLS Bank International, a section of the patent statute once the focus of only occasional litigation is emerging as a “go to” weapon for invalidating patents directed to computer-implemented inventions. Of the 25 federal court decisions in which 35 U.S.C. § 101 (Section 101) has been invoked since Alice was handed down, 19 have resulted in declarations of invalidity. This article highlights some trends in the case law. It also examines more closely one recent Federal Circuit decision in which patent claims did not survive a preliminary challenge under Section 101, as well as the six decisions in which the claims did survive.

In late June, the United States Supreme Court issued a long-awaited decision in Alice Corporation Pty. Ltd. v. CLS Bank International that may have broad-reaching implications on patenting software. At issue in the case was whether claims to a computer-implemented system and method for mitigating “settlement risk” in financial transactions are eligible for patenting under 35 U.S.C. § 101. In a unanimous decision, the Court held that the claims were directed to an abstract idea and, although implemented on a computer, were not patentable.

Following closely on the heels of the United States Supreme Court decision in Alice Corporation Pty. Ltd. v. CLS Bank International, 573 U.S. ___ (2014) (CLS Bank), the United States Patent and Trademark Office (USPTO) has issued guidelines for the examination of patent applications claiming abstract ideas, particularly, as those implemented on computers. The guidelines went into effect yesterday, but are preliminary: the USPTO indicates that it will issue additional guidance after further consideration of the Court's decision and public feedback. 1

Maximizing the protection and value of intellectual property assets is often the cornerstone of a business's success and even survival. In this blog, Nutter's Intellectual Property attorneys provide news updates and practical tips in patent portfolio development, IP litigation, trademarks, copyrights, trade secrets and licensing.

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