Litigation news from around the web
Planet Depos We Make It Happen
Proposed SECRETS Act of 2021: What To Know
by Planet Depos on August 25, 2021 at 5:50 pm
Proposed legislation could offer more protection to trade secret owners. Here's what you need to know about the proposed SECRETS act and its impact on the ITC. The post Proposed SECRETS Act of 2021: What To Know appeared first on Planet Depos.
Helpful Tips for a Great Remote Deposition (Updated)
by David Andre on August 6, 2021 at 1:15 pm
When you're attending a remote deposition, there are a number of tips you should remember to ensure everything goes smoothly. The post Helpful Tips for a Great Remote Deposition (Updated) appeared first on Planet Depos.
Recording Remote Depositions: What is Admissible?
by Suzanne Quinson on July 28, 2021 at 6:00 pm
Learn the differences between a remote recording and a videographer recording, including what is admissible in court. The post Recording Remote Depositions: What is Admissible? appeared first on Planet Depos.
There’s a Blood Shortage – Roll Up Your Sleeves!
by Suzanne Quinson on July 21, 2021 at 4:58 pm
At the end of 2020, Planet Depos highlighted the work the American Red Cross was doing to help in the Covid-19 battle, as well as in general. The American Red Cross continues to supply life-saving blood to hospitals, surgical centers, and more, all throughout the U.S., but the supplies are dwindling. There is currently a The post There’s a Blood Shortage – Roll Up Your Sleeves! appeared first on Planet Depos.
Can You Hear Me? Audio Tips for Your Remote Deposition (Updated)
by Suzanne Quinson on July 13, 2021 at 3:11 pm
Clear, consistent audio is key. Here are some small things you can do that have a big impact on audio, and your remote deposition! The post Can You Hear Me? Audio Tips for Your Remote Deposition (Updated) appeared first on Planet Depos.
Director's Forum: A Blog from USPTO's Leadership Updates from America’s innovation agency
Ensuring the validity of micro entity certifications – which provide reduced fees to eligible inventors and small businesses
by USPTO on September 8, 2021 at 5:10 pm
Guest blog by Andrew Faile, Acting Commissioner for Patents A core focus of our work at the USPTO is to foster innovation, competition, and economic growth, by providing opportunities for all current and aspiring inventors and entrepreneurs to participate in the intellectual property (IP) system. The cost of filing an application for a patent or trademark should not hinder individual inventors and small businesses from obtaining these key IP protections. That is why we offer a 50% and 75% reduction on most patent application fees to independent inventors and small businesses that qualify as small and micro entities.A small entity is generally defined as a business which, including affiliates, has fewer than 500 employees, a qualifying nonprofit organization, or an individual who has not assigned, licensed or otherwise conveyed or promised to convey an interest in the invention to a non-small entity. To be a small entity applicant, it is required that all parties holding rights in the invention qualify for small entity status.A micro entity must meet the criteria of a small entity, but also qualify for micro entity status, either on a gross income basis or on a basis of higher education, where the applicant must be obtaining the majority of their income from a United States institution of higher education. An additional requirement when filing for micro entity status based on gross income is that neither the applicant nor the inventor has been named as an inventor on more than four previously filed applications.In recent years, we have seen a significant increase in applications by inventors claiming micro entity status, especially in the field of design patents. For example, from fiscal year 2019 to fiscal year 2020, applications for design patents filed with micro entity certifications increased by 44%, and that percentage continues to rise. In addition, requests to expedite the examination of a design application (referred to as “rocket docket” filings) with micro entity certifications increased by almost 400% during that same one-year period.We love to see inventors utilize the micro entity discount to protect and grow their businesses – that’s why it exists. However, this uptick in micro entity filings has been accompanied by a significant increase in the number of erroneous micro entity certifications filed by inventors who do not qualify as micro entities. Many of the erroneous micro entity certifications we have seen are from applicants that are disqualified from claiming micro entity status because they have already been named on more than four previously filed applications and/or patents. The problem is particularly acute among rocket docket applications, and we are looking into whether similar issues exist in utility applications. These erroneous micro entity certifications, and the heavy use of the rocket docket by these applicants, unfortunately mean longer wait times for all applicants seeking design patents, including legitimate micro entity applicants.We are proactively taking steps to address the issue of erroneous filings. We recently sent notices to applicants with questionable micro entity certifications requiring additional information to support their micro entity claim (if you received a notice and have questions, please call the Patents Ombudsman at 571-272-5555). Applicants who mistakenly claimed micro entity status will be able to make a fee deficiency payment and proceed through the application process in a non-micro entity status. Those who cannot provide information to support their micro entity status, and who do not make a fee deficiency payment, run the risk of their application being abandoned. We will continue to communicate with our customers and the public to ensure the requirements on how to file a patent application as a small and micro entity are clear.We are always grateful for the opportunity to serve our dynamic innovation community. By taking these important steps to reduce current wait times and flush out erroneous certifications, we aim to protect all patent applicants, including legitimate micro entity applicants and small businesses, and prevent abuse of our world-class patent system.For more information and assistance with filing an application, please visit the newly revamped inventor and entrepreneur resources page of the USPTO website.
Apply for a judicial law clerkship at the USPTO by September 10
by USPTO on September 2, 2021 at 6:53 pm
Guest Blog by Scott Boalick, Chief Judge of the Patent Trial and Appeal BoardAre you interested in launching your career as an intellectual property (IP) practitioner by clerking for an administrative patent judge on the USPTO’s Patent Trial and Appeal Board (PTAB)? The PTAB is currently hiring for one-year clerkships to start in the fall of 2022. Check out our posting on the USAJobs website, which closes September 10, and read on to learn more about the role.The PTAB serves two important functions in the intellectual property system. First, the PTAB reviews the work of patent examiners in ex parte appeals and determines whether an examiner’s rejection of a patent application should be sustained. Additionally, the PTAB adjudicates the patentability of issued patents in America Invents Act (AIA) trial proceedings, which serve as a cheaper, faster alternative to district court litigation. For both types of proceedings, a panel of three administrative law judges who are skilled in technology and trained in patent law hear the cases and render decisions for the Board.As a judicial law clerk, you would work directly with judges on a variety of assignments, from researching legal issues to discussing cases with judges, for both ex parte appeals and AIA trials. Additionally, you would have the opportunity to participate in all Board training events, attend conferences, and prepare and deliver presentations. The diversity of work and training gives our judicial law clerks a broad understanding of the PTAB. Serving as a judicial law clerk also helps you establish a network within the intellectual property community. One former law clerk commented that “[the] environment is very collaborative and welcoming. At all levels, people are willing to answer your questions. More importantly, they want to hear your perspective.”Judicial law clerks are required to be U.S. citizens and graduates of an accredited law school prior to starting at the PTAB. Additionally, judicial law clerks must have an undergraduate degree in a technical area, such as engineering, chemistry, or biology. Admission to a state bar or the patent bar is not required, though encouraged.If selected as a judicial law clerk, you would serve for a paid, one-year term. Typically, terms start in October and end the following September. To apply, you must submit a resume and undergraduate, graduate (if applicable), and law school transcripts through USAjobs.gov. Providing a cover letter is optional, but may help us get a better idea of what makes you a great candidate.Perhaps best said by a recent law clerk: “If you are interested in practicing before the PTAB, the judicial clerkship program is an excellent way to develop skills and insight into the forum and set yourself apart from your peers.” For example, past law clerks have gone on to further prestigious positions in public service, including as law clerks at the U.S. Court of Appeals for the Federal Circuit.If you meet the qualifications outlined above and are interested in the intersection of IP and the law, we hope you consider joining us at the PTAB.
USPTO’s comprehensive strategy to fight trademark fraud
by USPTO on August 18, 2021 at 1:44 pm
Blog by Drew Hirshfeld, performing the functions and duties of the Under Secretary of Commerce for Intellectual Property and Director of the USPTO, and David Gooder, Commissioner for Trademarks at the USPTOBusinesses at home and abroad are becoming more and more aware of the value and benefits of a U.S. trademark registration. Unfortunately, along with the historic surge of new trademark filings over the past year (see our blog on the surge), the USPTO has also seen an increase in suspicious submissions ranging from inaccurate to fraudulent. The Department of Commerce’s Office of Inspector General, after analyzing a snapshot of data (applications filed between October 2, 2019 and April 30, 2020), found that we need to enhance controls aimed at combatting this increase in suspicious filings. We agree, and have been actively enhancing our register protection efforts to meet this challenge for some time now (as described in Appendix B of the report, titled Agency Response). The integrity and accuracy of our trademark register is more important than ever to our economy, to businesses everywhere, and to the USPTO. The rise in fraudulent trademark filings and trademark-related scams has driven us to implement new strategies and tactics to intensify our attack against those who would seek to undermine the value and legitimacy of this important intellectual property right. A change of approach, which we embarked on several years ago, was necessary to confront an unprecedented threat, one that is common among industries dealing with the scourge of counterfeits, fakes, illicit trade, and even piracy. We believe the best way to fight trademark application fraud and scams and to aggressively safeguard our trademark register is to pivot to a comprehensive brand protection-type strategy and starting last fall, we did just that.As of this writing, the USPTO has experienced a 40+% increase in trademark applications over the past year, representing the greatest number of new trademark applications in history. This increase in applications has been driven by a number of factors during the pandemic, including the growth of cross-border e-commerce, foreign government subsidies, and a tremendous rise in new business formation. Thousands of foreign manufacturers that want to sell directly to U.S. consumers have been told that they need a U.S.-registered trademark for their products to receive priority position on e-commerce sales platforms. Even though this is not necessarily true, the phenomenon has spawned new low-cost filing mills, multi-national scams, and even created a secondary market for buying and selling U.S. trademark registrations. As a result, low-cost trademark filing companies claiming to specialize in the acquisition of U.S. trademarks have aggressively been marketing their services to potential and unsuspecting clients. Most foreign manufacturers and sellers have little or no experience with U.S. trademark laws and registration procedures so they don’t know whether or not these services are legitimate. Conversely, many foreign agents are aware of the USPTO rules, yet try to find ways to circumvent them. For example, they hijack the credentials of attorneys licensed in the U.S. or they enter into relationships with questionable U.S. attorneys who rubber-stamp whatever paperwork they provide. The U.S. trademark registration system has historically relied upon the good faith intentions of its customers and their counsel. These illicit operators, however, are trying to game the system in order to illegally obtain U.S. registrations.Traditionally, our examining attorneys have been on the front lines of this fight, but conducting investigations instead of examinations only does a disservice to legitimate applicants seeking trademark registrations. Moreover, the examination process does not always efficiently lend itself to discovering wider patterns of fraud and improper behavior that often taint many applications at a time. Because multiple applications are often filed by a single entity using the same data elements but owned by multiple applicants, it is by tracking those common data points through our IT systems that we identify and fight back against these schemes. To achieve this result on the scale we need, in 2019 we created – and are now expanding – a special task force of attorneys, analysts, cyber investigators and IT personnel to investigate submissions that we suspect are violating U.S. rules of practice, representation rules, or USPTO’s terms-of-use. The USPTO does not have law enforcement capability, so we leverage what we do have: the ability to enforce our rules against those seeking to circumvent them. Further, when an investigation uncovers attorney misconduct, we refer them to our Office of Enrollment and Discipline. And when an investigation involves suspected criminal activity, we engage with law enforcement authorities.For those suspected of violating the USPTO’s rules, we issue show-cause orders requiring them to establish that their filings and behavior are legitimate. If they respond inadequately, or if we find that applications were filed with the intent to circumvent our rules, then we issue a final order for sanctions, including terminating the tainted applications and blocking the filer’s access to our trademark system. Additionally, we are increasing our database security through login, identity authentication, and role-based access controls. Doing so will help prevent bad actors from submitting any future applications.The USPTO has other new tools we are now employing against inaccurate or fraudulent submissions. For example, in our Post-Registration Proof of Use Audit Program, we implemented a fee penalty in January for those filing inaccurate claims-of-use in their filings to maintain their registrations. And this is starting to have a positive impact on accuracy. Also, the soon-to-be implemented Trademark Modernization Act of 2020 will allow third parties to challenge registrations they believe are not or have never been validly used. These new cancellation proceedings will help clear our register of inaccurate and unused registrations which clutter the register and diminish its value to our country and the trademark ecosystem.The surge of trademark filings has created challenges, but those challenges also highlight the significant value of U.S. trademark registrations. Brands that are registered at the USPTO command more respect than ever before, and their growing status is a direct result of the U.S. trademark system that is constantly evolving. And as we forge ahead, we welcome every opportunity to work with our stakeholders both foreign and domestic to protect our register and issue trademarks that have true and lasting value.
Protecting our trademark customers with federal registration of USPTO marks
by USPTO on August 5, 2021 at 2:21 pm
Guest blog by David Gooder, Commissioner for Trademarks Exterior shot of the Madison Building and Dulany Gardens at the United States Patent and Trademark Office (USPTO). Photo by Jay Premack/USPTO.Imagine you are a trademark applicant who receives a notice in the mail from an agency claiming to be the USPTO, with an almost identical logo, informing you that the USPTO will deny or cancel your registration unless you pay a required fee. Or if a business appearing to be affiliated with the USPTO solicits fees to help file your application and perform other registration services for you at a price that seems too good to be true. You pay the fees, assuming the businesses and promised services are legitimate, only to never hear from them again.These types of misleading solicitations and trademark filing scams are a growing problem, especially as we are seeing more sophisticated enterprises entering the space. Some of these scammers attempt to impersonate the USPTO or claim varying forms of endorsement. The USPTO has taken several proactive steps to protect trademark applicants from being victimized by these opportunists, including alerting users to known scammers by posting a list on the USPTO website, working with law enforcement when appropriate, and sanctioning filers that violate USPTO rules. Yesterday, the Department of Commerce took another important step to protect trademark customers by filing for federal registration of the USPTO marks. Like any other brand owner facing infringement by third parties, if we have federal trademark registrations, they will help us take appropriate legal action as needed to protect the USPTO brand from improper use by those trying to impersonate or falsely claim affiliation or endorsement with the USPTO. We recognize the intrigue and irony of filing for federal registration of the USPTO marks...with the USPTO. It’s a big reason why the Department of Commerce is filing the application on our behalf, just as it has for its other bureaus. In fact, many other federal agencies own federal trademark registrations, including the Internal Revenue Service, the Environmental Protection Agency, the Food and Drug Administration, the Federal Aviation Administration, the National Aeronautics and Space Administration, the National Oceanic and Atmospheric Administration, the Department of Homeland Security, the National Park Service, and branches of the U.S. military, to name just a few. As for process, the USPTO trademark examining attorney will examine the application as he or she does any application, and make his or her own determination. And while some could ask why we didn’t federally register these marks years ago, we realized we require the additional legal protections afforded the owner of a federally registered trademark in light of the rapid increase in sophistication of those unlawfully passing themselves off as the USPTO. We firmly believe that it’s never too late to do the right thing, and doing everything within our power to protect our trademark customers is the right thing.While there is no one-size-fits-all strategy to address illicit or misleading activity of scammers, we are committed to keeping our customers well-informed and to fighting these scams. We look forward to building upon our comprehensive efforts and sharing more about them in the weeks to come. In the meantime, we encourage you to visit the USPTO website to learn more about ways to identify scams and keep your brand(s) protected.
PTAB’s “Fast-Track” pilots available for regular and COVID-19 related ex parte appeals
by USPTO on August 4, 2021 at 2:49 pm
Guest Blog by Scott Boalick, Chief Judge for the Patent Trial and Appeal BoardThe United States Patent and Trademark Office (USPTO) has two programs to expedite our turnaround time for ex parte appeals. By speeding up patentability determinations on new inventions, we aim to quicken the pace at which products or services embodied in these inventions reach the marketplace, spurring follow-on innovation, economic growth, and job creation.Last year, the USPTO launched the first-ever, one-year “Fast-Track Appeals Pilot Program” to offer patent appellants a way to secure expedited resolution of any ex parte appeal. We just extended the pilot program to run for another one-year period through July 2, 2022. On April 15, 2021, we also launched a specialized Fast-Track Appeals Pilot Program just for COVID-19 related inventions.To advance an appeal under the regular Fast-Track Appeals Pilot, an appellant must meet four conditions. First, the application must be an original utility, design, or plant nonprovisional application. Second, the appeal desired for fast-track status must be pending before the Patent Trial and Appeal Board (PTAB). Third, the appellant must file a petition to request fast-track treatment. And fourth, the appellant must pay a petition fee, currently $420. For the COVID-19 Fast-Track Appeals Pilot, the first three requirements apply but the appellant is not required to pay a petition fee. In addition, the application must claim a product or process that is subject to an applicable FDA approval for COVID-19 use.Since the regular Fast-Track Appeals Pilot’s launch through June 30, 2021, we have granted 197 petitions, on average within two days of filing. Merits-based appeal decisions were decided in an average of 2.1 months, much quicker than our fast-track target of six months to decision, and much quicker than the approximately 13-month average time to decide appeals overall. To date, we have not received any petitions under the COVID-19 Fast-Track Appeals Pilot. The COVID-19 Fast Track Appeals Pilot is a companion to the COVID-19 Prioritized Examination Pilot Program, and applications that are under review in the COVID-19 Prioritized Examination Pilot feed into the COVID-19 Fast-Track Appeals Pilot. The COVID-19 examination pilot started a little more than one-year ago, and therefore applications under the COVID-19 examination pilot are only now approaching a second or final rejection, placing them in position for appeal.In order to ensure that there is no adverse impact to appeal processing overall caused by the expedited turnarounds offered in the regular Fast-Track and COVID-19 Fast-Track pilots, size limitations have been placed on both pilot programs. Information on these limitations can be found on the Fast-Track Appeals Pilot and the COVID-19 Fast-Track Appeals Pilot pages of the USPTO website.We remain committed to monitoring and evaluating the effects of both the regular Fast-Track Appeals Pilot Program and the COVID-19 Fast-Track Appeals Pilot Program. If you have any questions or comments about these programs, please email or email@example.com or COVIDfasttrackappeals@uspto.gov, respectively. Also, the webpages for the regular Fast-Track Appeals Pilot and the COVID-19 Fast-Track Appeals Pilot are replete with information, including current filing data and open slots for each program.
Above the Law A Legal Web Site – News, Insights, and Opinions on Law Firms, Lawyers, Law School, Law Suits, Judges and Courts
Quibi Lawsuit Ends Like Quibi: Quickly
by Jon Shazar - Dealbreaker on September 20, 2021 at 2:02 pm
Those hoping to learn more about Paul Singer’s lovelife will be disappointed.
Morning Docket: 09.20.21
by Chris Williams on September 20, 2021 at 12:45 pm
* In Virus Other Than COVID™ news, research on a potential cure to HIV is underway. [Biospace] * There's general disillusionment with the legitimacy of SCOTUS and the rule of law or whatever, but no one is asking the hard-hitting questions. Will 1Ls still have to take Con Law 2? [Business Insider] * Missourians going the "liberty or death" route are mad the federal government is trying to make them die less. [The Guardian] * In a much needed move, California is passing legislation that makes stealthing illegal. Don't commit assault, folks. [The New Yorker] * Even more bright-eyed students are ignoring the sage wisdom of this song. If only they knew about issue-spotting before Torts. [Reuters]
You Call That An Indictment? — See Also
by Joe Patrice on September 17, 2021 at 9:46 pm
Your Daily Dose Of Weaksauce: John Durham's indicted a former Perkins Coie partner. It's not a particularly compelling case. Shocked, Shocked: Justice Thomas is very sad that people think the Supreme Court might be political. Still Screwed: Celebrate Constitution Day with a party! Unfortunately, equal rights will not be joining us this evening. At Least After Labor Day: Is it time to retire the phrase "white shoe"?
The Florida Biglaw Firm At The Top Of The Charts
by Kathryn Rubino on September 17, 2021 at 9:15 pm
The firm also does pretty well in the national rankings.
by Olga V. Mack on September 17, 2021 at 8:44 pm
Notes to my (legal) self.
LJN - Internet Law & Strategy The newsletter publishing arm of ALM, publishers of The National Law Journal, The American Lawyer and legal newspapers of record throughout the U.S.
Pa. Supreme Court Set to Weigh Updating Venue Guidance in Internet Defamation Case
on September 15, 2021 at 7:21 pm
The Pennsylvania Supreme Court is slated to consider how venue rules it established 53 years ago apply to today's technology in a hearing over where an internet defamation suit can be tried.
Ruling Suggests Plaintiff Bar Must Rethink Strategy in Litigation Over Employers' Activity-Tracking Software
on September 14, 2021 at 7:21 pm
"As soon as the dam broke with Judge Ruiz, they then basically in sequence just dismissed all the other pending session replay cases without prejudice," said Aldo M. Leiva, of counsel at Baker, Donelson, Bearman, Caldwell & Berkowitz.
When Are Websites a Place of Public Accommodation?
on September 13, 2021 at 5:00 am
The decision in 'Winegard' should give some comfort to lawyers counseling or defending independent websites, bloggers, and similar entities.
Second Circuit Affirms Website's Right To Remove Offensive Videos
on August 30, 2021 at 5:00 am
In his Privacy Matters column, Peter Brown discusses the case 'Damon v. Vimeo', in which the Second Circuit clarified the scope of the video hosting service's statutory protection under the Communications Decency Act.
Defamation in the Age of Disinformation: Lawsuits Are Still the Last Resort
on August 24, 2021 at 2:11 pm
Disgruntled ex-employees, ruthless business competitors, high school bullies and ex-lovers all find their way to the internet with seemingly endless opportunities to punish, harass and embarrass on a worldwide stage, with just a few clicks on a keyboard.