Planting Innovation: A Look into Plant Patent Protection and the Deficiencies of the Plant Protection Act and Plant Variety Protection Act

Author: Ashley J. (Clever) Earle, Contributing Member, University of Cincinnati Law Review

When thinking about patent protection, most individuals likely picture what patent attorneys describe as a “widget”—a physical, mechanical invention. Patent protection however, covers a much broader spectrum of inventions. It may seem natural to grant patents to protect new innovations such as chemical compounds, technological advances, or ornamental designs, but most people would not automatically include plants in the categories of protectable technologies. Plant patent protection is an unassuming, but integral part of the incentives of creativity protected by intellectual property law; however, obtaining plant protection can be very onerous and unnecessarily technical.

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Design Patents: How Close Is Too Close? Vacillating Court Decisions Provide Little Guidance, as Shown in Apple v. Samsung

Author: Ashley Clever, Contributing Member, University of Cincinnati Law Review

When marketing a new product, a business will often need to protect both the functionality and the overall design of a product to prevent competitors from producing an identical copy. While a utility patent covers a product’s functional features—how it works and what it does, a design patent can product a product’s aesthetic features—its design and how it looks.[1] Design patents however, provide notoriously little protection and are often construed only to cover the exact design. The Federal Circuit Court of Appeals has provided very little guidance in defining what a design patent protects, with even minute changes in design or ornamentation sometimes enough to overcome a patented design.[2] The recent case of Apple v. Samsung depicts the vacillating decisions in the court’s determination of what does or does not constitute design patent infringement.[3] These fluctuating court decisions create unnecessary confusion in determining the proper scope of design patent protection, leaving inventors as well as competitors with increasing uncertainty.

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Patent Privateering: Patents As Weapons

Author: Thibault Schrepel, LL.M., Antitrust Analyst

In the late 16th century, Queen Elizabeth I of England commissioned Francis Drake to sail for America. The Queen asked him to plunder Spanish vessels on his way there. Francis Drake became a pirate commissioned by the crown. This type of “legal” pirate was called a “privateer.” They allowed nations to attack one another without the risk of being counter-attacked, because the identity and the nationality of these pirates’ employers were kept secret.[1] Today, the spirit of those pirates is reborn. Known as “patent trolls,” these companies do not use patents for their technical aspects and are principally in the business of collecting money from others that use the patented designs or ideas,[2] and are now employed by high-tech companies seeking to use patents against their competitors.

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Alice Kills: Is Alice v. CLS the Destruction of Software and Business Method Patents as We Know Them?

Author: Ashley Clever, Contributing Member, University of Cincinnati Law Review

This is a question many practicing patent attorneys are wondering in the wake of the recent U.S. Supreme Court decision in Alice Corporation PTY. LTD. v. CLS Bank International on June 19, 2014.[1] In Alice v. CLS, the Supreme Court invalidated four patents owned by Alice Corporation relating to a system for mitigating settlement risk by using a third-party intermediary computer system to exchange financial obligations, ensuring the parties in the settlement agreement completed the transaction.[2] The Court held that the patents claimed an abstract idea that was not sufficiently transformed in order to render the subject matter eligible for patent protection.[3]

While the Supreme Court does not typically grant certiorari on many patent law cases, in recent years there have been numerous questions on what inventions are entitled to receive patent protection, particularly regarding what is patentable subject matter under 35 U.S.C. § 101.[4]

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