Thought Leadership

Intellectual Property Report: November 2019

Client Updates

The Intersection of Open Source Software, Intellectual Property, and Antitrust
Jordan Fernandes, Michael J. Perry, Paul Ragusa
Modern innovations are increasingly dependent on the use of software, which can be licensed to third parties on a royalty-free basis under a so-called “open source” license, often with strings attached to associated intellectual property rights. As open source software (“OSS”) platforms continue to grow in prominence, OSS platforms may face potential antitrust scrutiny in particular circumstances, analogous to potential antitrust issues that have arisen in the standard-setting context. Although OSS platforms, like standard-setting organizations (SSOs), can produce significant pro-competitive benefits, both settings present potential antitrust risks if not appropriately managed, particularly for collaborative activities among significant competitors. Participants in OSS development should thus be cognizant of potential antitrust concerns, which may arise in that process, particularly as OSS platforms become increasingly significant in particular technological areas.
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The Patent Landscape Post-TC Heartland
David Varghese
Where should we file this lawsuit? A consequential question asked prior to commencement of every litigation. In May of 2017, when the Supreme Court handed down its decision in TC Heartland interpreting the venue statute for patent cases, this question became an even more important one for patent litigants. Almost two and a half years later, we look at how this decision has affected the patent litigation landscape.
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USPTO Releases Updated Patent Eligibility Guidance Aimed at Clarifying the Guidance Released Earlier this Year
Frances Mackay, Charles Yeh
On Thursday, October 17, 2019, the USPTO issued new guidance to examiners, clarifying the 2019 Revised Patent Subject Matter Eligibility Guidance (2019 PEG), 84 Fed. Reg. 50, published earlier this year. The new guidance responds to public comments received by the USPTO, requesting clarification on the new eligibility procedures.
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