Patents and Extrinsic Evidence; Collaborative IP and the "Connected Car"; Online Counterfeiting

Here's a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending March 23, 2018.

Federal Court of Appeals Agrees to Allow Use of Extrinsic Evidence

Recently, the Federal Circuit opened the door to allowing use of extrinsic evidence in deciding claims of patent eligibility. In Berkheimer v., HP Inc., the Federal Circuit reviewed a decision by a lower court to invalidate eight patent claims. The court stated that the “patent eligibility is ultimately a question of law.” However, it added that the underlying question of whether something is patent eligible also includes factual determination. In a second case, the Court of Appeals for the Federal Circuit issued an opinion that allowed extrinsic evidence use. In the decision, Aatrix Software, Inc., v. Green Shades Software, Inc., No. 2017-1452 (Fed. Cir. February 14, 2018), the Federal Circuit held that factual questions can be used to preclude dismissal of complaint of patent ineligibility.  Read more about extrinsic evidence.

Sharing The Vehicle: Collaborative Intellectual Property Issues

The “connected car” is viewed as the new platform for a whole host of new innovative technologies. From OEM vehicle manufacturers to the largest of technology companies, many different players are interested in the up and coming “connected car” platform and some consideration must be given as to how the innovative technology is shared, distributed and managed. Innovation for the “connected car” in involves the vehicle manufacturers, many large Silicon Valley companies, and small to medium sized business all vying for inclusion into the platform. Many market participants understand that sharing and cooperation are the only “sure bets” when it relates to the “connected car” platforms. Read more about innovative technology.

Are Amazon and eBay Involved in Online Counterfeiting?

A case pending before the Federal Circuit highlights the challenges in attempting to stop online sales of counterfeit products. It also raises interesting questions about whether online marketplaces, including eBay and Amazon, are legally responsible for sales of counterfeit products sold through their marketplaces but not “sold by” those companies. It began with the family pets, Milo & Gabby. Using them as inspiration, a husband-and-wife team came up the designs for cartoon-like pillowcases for kids. Sold under the name Milo & Gabby, the pillowcases were a commercial success. The small business obtained design patents and took additional steps to secure their intellectual property. Read more about online counterfeiting.

Click to read last week's Weekly IP Buzz. 

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.