Vol. 2 No. 6 July/August. 2010:
Trade Secrets v. Patents

Trade Secrets v. Patents:
The New Calculus

By R. Mark Halligan

In recent years, the law has circumscribed the once broad protection afforded patent holders. In contrast, trade secrets protection has expanded. It is time, therefore, for IP attorneys to reassess the traditional patent-versus-tradesecret calculus as they determine how best to protect commercially valuable information. Trade secret rights may offer clients the better choice in today’s environment.

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The following articles from Vol.2 No.6 July/August. 2010
are available to Section members.
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Claim Construction in Patent Cases: A Question of Law? An Exploration of the Cybor Uncertainty Principle
By Frederick L. Whitmer

In Cybor, the Federal Circuit held that claim construction is purely a matter of law. The author respectfully disagrees. He observes that, given the de novo appellate review required by the ruling, there is a widespread perception that a district court’s claim construction ruling is only interim. Finding the “ Cybor uncertainty principle” detrimental to both litigants and the judicial process, the author proposes a different standard. read more...

A European Perspective on Business Method Patents
By Nicholas Fox and Alex Rees

When it comes to business method patents, American practitioners have it easy compared to their European counterparts. That is not to say, however, that such protection is never available in Europe. Careful analysis and drafting for “technical effect” may enable you to count your applications among the “lucky” few granted in Europe. The harder you work, the luckier you’ll get, say the authors. read more...

Medical Devices and Patent Term Extension Under the Hatch-Waxman Act
By Michelle A. Sherwood

Patent term extensions may be granted for pharmaceutical and health care products subject to regulatory review before permission to market. Applied to commercial products at the peak of their commercial life, these “Hatch-Waxman” extensions can be very valuable. While the majority of such extensions are granted for pharmaceutical drug products, extensions for medical device products may trend upward in the future. read more...

If It Quacks Like a Duck . . . It Just Might Be a Trademark
By Julia Anne Matheson and Anna S. Balichina

Long gone are the days when only words and symbols could be protectable trademarks. NBC’s three chimes and the MGM lion’s roar have shown that sounds can be as effective at source identification as more traditional word and logo counterparts. But are these sounds the exception that proves the rule? The authors outline some of the key challenges facing trademark owners in their efforts to protect and enforce sound marks. read more...

Fighting Back: A 10-Point Plan to Protect Your Brands from Counterfeiters
By James R. Davis II

Counterfeit goods are all around us. Many of today’s counterfeiters are well-funded and associated with organized crime and terrorists. This article offers 10 strategies for combating them. The author advises companies that, even if implementing all 10 is not feasible, perfection should not be made the enemy of progress. Adopting just one or two strategies is far better than taking no action at all. read more...

Updates
New TBMP Due Out Before End of 2010

Bilski v. Kappos: The Cliffhangeer
By Joseph J. Berghammer

The Advent of Follow-On Biologics: A Post-Script
By Jonathan A. Muenkel and Thomas J. Bassolino

Mass MOCA v. Buchel: The Creation Debate
By Monica Pa
read more...

Recent Developments in IP Law
By John C. Gatz

From the Hill
by Hayden W. Gregory

Meeting of the Minds
By Steven J. Olsen

Perspective
By Don W. Martens

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