Are fashion patents here to stay !

In the recent times with advancements in global shopping networks and eCommerce based shopping platforms, there is an obvious adrenaline rush amongst renowned fashion brands to make an impact on the customers with their signature lines and unique apparel collections. Amidst all conventional methods of legal protection, fashion brands are eying on more substantial protection in the form of design patents. Design patents solely protect the ornamental or visual designs of the manufactured objects unlike utility patents which are granted on the functional utilitarian basis. Design patents encompass various aesthetic combinations of patterns, colors, shapes and configurations applied on various objects like jewelry, containers, apparel, furniture, etc.

Fashion or Apparel brands finds it more appealing to protect their industrial designs via design patents which confer them monopoly and exclusive rights to sell, distribute or license their designed products besides tapping infringements. For example, in a recent incident, Lululemon filed a legal suit against Calvin Klein for infringing upon their Yoga Pants design patent. Typically a Design patent protection in the US lasts within 14 years from the date of grant with no additional maintenance fee unlike utility patents which last in 20 years along with additional maintenance fee applicable. The reduced cost, reduced time and simple application procedure thus makes it an attractive proposition for fashion brands to go for design patents. Although, design patent applications are fairly simpler than utility patent applications but demands superior quality patent illustrations or drawings conferring to set standards to increase your chances of securing a design patent successfully.

Many fashion brands actively apply for design patents in order to safeguard their business from active competitors and to develop firm business strategies with open options for licensing-out deals. Besides protecting industrial designs at the national level, brands can actively protect their designs internationally by filing a single application for different designated countries via Hague System for the registration of International  Industrial Designs, administered by WIPO. For registering the designs across European Union, a single Community Design application can be filed mentioning the designated countries at the OHIM portal. It is important to note that the duration of such protection may vary depending on the international treaties and conventions involved.

Looking at the rising number of design patent applications each year, it is expected in future fashion businesses will rely more on such design based patent protections and will incorporate them under their core Intellectual Property business strategies. 

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Guest Post: Invalidation: Law at the heart of patent litigation

Today, we bring you a guest blog post from Leonard Priet, a writer for Patexia.com. The post briefly discusses about the scenario after the thrust in technology oriented patent applications and various tactics employed to practice defense in patent wars.

 Invalidation: law at the heart of patent litigation

With the dot-com bubble around the turn of the century, there was a dramatic increase in the number of patents issued by the USPTO. The world, and the United States in particular, was rife with ideas that companies and individuals wanted to protect. This aggravated a problem that had been mounting for the previous decade. Beginning in the past twenty years the patent office, couldn’t keep up with the dramatic increase in the number of applications per year, which resulted in the issue of a number of patents that did not necessarily pass the strict standards of patentability from which the world of American innovation had flourished since its creation in eighteenth century. By erring on the side of a laissez-faire approach due to sheer lack of resources, the patent office has left the burden of determining which patents are valid to the courts.

Today’s excessively litigious technology market - where swaths of thousands of patents are bought and sold , aiding in increasingly harmful patent wars - is the crucible in which irrelevant patents must be boiled away, leaving only those that live up to the USPTO’s strict standards of patentability set forth in Chapter 10, Title 35 of the United States Code.

Everybody’s suing everybody else

The question that the courts must answer in patent infringement is: which lawsuits are legitimate or, alternatively, which patents are valid? When a defendant is being sued for patent infringement, the most common recourse is to invalidate the patents involved. This all boils down to patentability which, in the eyes of patent law, means non- obviousness (sect. 103) and novelty (sect. 102).

Non-Obvious subject matter : (35 U.S.C. 103)

An idea is not patentable if it is obvious to a person skilled in the field related to a particular patent. To invalidate a patent under this section, a defendant in a patent infringement case must show that the idea disclosed in a patent would be obvious to an individual skilled in the field of the patent. For example, if a defendant is sued for a patent that claims replaceable ink cartridges, the defendant needs only to show that replaceable ink cartridges are an obvious addition to pens. At least obvious to someone who works in the business of pen making. Patent invalidation by obviousness is rare because examiners can easily recognize obvious ideas before they are patented, so obvious patents seldom end up in lawsuits.

Novelty : (35 U.S.C. 102)

To hold patent for an idea, that idea must be unique. This requirement is where the majority of patents fall short, and therefore is what many patent infringement defendants use to invalidate patents and win cases. To determine whether or not an idea is novel, an examiner must effectively look through an endless number of sources, a tall order when time and resources are limited. As a result, a significant proportion of patents are issued because a patent examiner could not find any source to demonstrate that the idea is not novel. But this does not mean these sources referred to as “prior art” do not exist. The most common way for a defendant to win a patent infringement case is by finding some documented proof that the patent’s idea is not novel by locating this prior art. As a result, such prior art searches have become an integral part of patent litigation defense, and are likely to become increasingly important and ubiquitous in upcoming years. Hence, we are able to conceptualize the latest trends in the patent wars and the modes employed therein to practice defense.

Leonard Priet is a writer for patexia.com -- a social network for researcher, business, and innovation. Patexia’s mission is to advance the pace of innovation by offering community resources and patent research tools  as well as expert-targeted prior art searches for patent invalidity.

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Software Patents : What you need to know before filing

Software based mobile application patents are a trend now. With the launch of umpteen smart phone apps on a regular basis, the inventors tend to be extra cautious of protecting their innovations. One of the prime contributing reason being the stiff competitive market of these mobile apps. When you have thousands of apps offering more or less similar features, it becomes vital to secure an early priority date and eventually a patent to be on the beneficial side.  Now talking more on the practical side of these mobile app based patent applications, it is a requisite to know few vital points while drafting your patent application.

1. Prior art is life saving : In spite of being the most important aspect , many solo inventors or start ups tend to overlook this one on account of extra financial expenses. While one might be thinking his invention is unique and one of a kind but in actuality a lot other inventions embody similar backgrounds or likely similar patent claims. Especially under the mobile app patents prior art, you will find many claims which more or less reflect your proposed invention. Such a high probability of similar or likely similar claims emanate from the overcrowded mobile app marketplace where attaining patents can certainly gives you an edge over others.


2. Provisional or Non Provisional application:   Inventors have an option of filing a provisional patent application in order to attain an early priority date. It is also desirable to file a provisional application when you are still undergoing the process of finalizing the invention but at the same time wish to safeguard the initial idea. As soon as you are ready with the complete invention details, you may go ahead filing the non provisional patent application. A provisional application has to be followed with a non – provisional patent application within 12 months from the provisional filing date. Many a times, a provisional application gives appreciable time to the inventors during which they can test or validate their ideas in the marketplace before filing the complete patent applications.


3. Quantity and Quality of claims:    Well structured and technically adept claims attain benefits during patent application examinations. Always lay more emphasis on the quality rather than the quantity of claims.It is also noteworthy that additional claims beyond a certain limit amounts to additional fee. Hence, it is imperative to select the best combination of dependent and independent claims highlighting the proposed invention. 

4. Drawings : Specially in the case of smart phone app based patent applications, it is crucial to add the right mix of flowcharts, user interface, graphical interface and other component based diagrams explaining the essence of the proposed invention. Well arranged, adequately labeled and well explained drawings always maintain an advantage over others.

Hence, we tried to give you an overview of certain important elements which you shall keep in mind while filing the software patent applications under mobile apps domain. 

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Webinar on Cognizing IP in Business

Here is the link of the webinar conducted on July 8th, 2012. This webinar primarily talks about Cognizing Intellectual Property in Business. We will be arranging more such IP webinar series in the near future. For updates stay tuned to our blog.

Cognizing IP from Patfrigate IP on Vimeo.

Bill C - 11 introduce new copyright provisions

It is noteworthy that we have been talking about in the past the way Indian Copyright Amendment Bill received great felicitation and welcome from the artists society all across the nation. This time Canadian Copyright amendment bill C-11 also arrived with interesting provisions and amendments. In one of the provisions i.e. Clause 7, the ownership of copyright for commissioned photographs is discussed. This clause talks about :

“ the limited rights being granted to the person who portrayed or commissioned the photograph for personal or non commercial use , subject to any contract specified otherwise...”

This is a beneficial provision for artists who are at times devoid of related rights on the commissioned photographs and works. Another interesting attribute is Clause 22 on  “Fair Dealing”.  Under section 29.21 of this clause, an exception is added for the content generated by non commercial users. This is termed as “Mash up exception”.  The clause reads:

“ As per this exception , the consumer has a right to use in a non-commercial context , a publicly available work in order to create a new work. This exception is subject to conditions namely the identification of the source, legality of the work, and absence of substantial adverse effect on the exploitation of the original work…”

Also section 29.22 and 29.23 of this clause talks about “ Format Shifting” and “ Time Shifting”  provisions respectively. Under these provisions the consumers could use Format and Time shifting for private purposes. On a more practical way, for example the consumers may be able to listen to an internet recorded audio or video on their systems at a convenient time or format shift audio on their gadgets like mp3, ipods etc without violating copyright restrictions. But this being subject to limitations like legality of the work obtained and private use clause. Amended Clause 22 states:

“ The purpose of this amendment is to clarify that the exception only applies for private purposes of the individual who owns the music or records the program, and not anybody else’s private purposes...”

Certain other interesting attributes of this bill talks about Technological Protection measures and Safe harbour provisions for ISPs. Full text can be read here. Overall, the proposed amendments touch every aspect of copyright and offer us in depth insight into a modern copyright law.

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Copyrights: Conventions and Treaties available

We have recently witnessed the great Indian Copyright Amendment Bill being passed in the parliament this year and the kind of felicitation it received from the artists, musicians, performers and writers community in India. The life long and equal royalty issues have been the crux of the arguments. In the background of this topic, there are many other significant international treaties protecting the copyrights, broadcasters rights, performers rights and phonogram producers rights worldwide. Some of them are stated as under:

Berne Convention: India is a contracting party to Berne Convention since 1^st April 1928  Berne Convention protects the literary and artistic works of all the member contracting states. The protection also extends to Cinematographic Works, Works of Architecture and Certain Artistic Works. Under  Article 5 of the Berne convention :

“Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention…”

Rome Convention:  India is also a contracting party to this convention since 1961. Rome Convention extends protection to “related rights” like performances of performers, producers of phonograms and broadcasters. Protection under this convention lasts for a period of 20 years computed from the end of year during which such work is fixed.

“ Protection must last at least until the end of a period of 20 years computed from the end of the year in which: (a) the fixation was made, for phonograms and for performances incorporated therein;  (b) the performance took place, for performances not incorporated in phonograms;  (c) the broadcast took place, for broadcasts……”

WIPO Performances and Phonograms Treaty (WPPT): Although India is not a contracting party to this treaty, the treaty was adopted in Geneva on December 20, 1996.  This treaty aims at protecting the rights of performers and producers of phonograms in a uniform and efficient manner. Article 15 of the treaty  talks about equitable remuneration assigned to performers and producers of phonograms. 

“Performers and producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any communication to the public…”

  

Hence these were some notable treaties and conventions for internationally protecting the copyrights and related rights of performers, authors, broadcasters and phonogram producers. It is worthwhile to notice the provisions and rights extended under these conventions to value your creative works. 

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Is residual Intellectual Property value worthy

While most of us pay due consideration to a business’s present Intellectual Property worth, it is indeed very interesting to observe what benefits a residual IP value brings to the table. Let’s begin with Patents. It is noteworthy that patents have an average lifespan of 20 years after which the sought after technology falls into the public domain. Although the technology will be easily replicable once it falls in the public domain but the residual value attached to the technology in the form of brand trademarks, service marks, industrial designs, copyrights etc can continue to grab attention of the buyers globally. In addition to that, the brand reputation earned within a period of twenty years is enough to withhold active interest of the potential buyers.

One potential option of utilizing the residual value of your Intellectual Property is Licensing Out. This is also a viable option especially when you have clients ready to adopt the much reputed brand Trademarks of your expired patents. Although the patents have expired but the brand trademarks continue to be in force as long you renew them. Thereby  imparting new business entrants a potential benefit to overcome barriers of entry by adopting these renowned trademarks through licensing deals. Similarly you may exercise other benefits of your residual IP associated with industrial designs and copyrights. At last to sum up, I would say although IP protection lasts within a stipulated period of time but the umpteen residual benefits associated with your intellectual property will be worthy enough to generate the moolah!

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