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ts and how those rules should apply to this case and so i decided to file a brief based in part on my paper un reasonable royalties which discusses the history of royalty remedies as well as a discussion of expert witnesses our argument pretty simply was that the opinion was well within the norm of reliability experts often extrapolate royalties from lump sums the language in the agreements at least supported what a willing buyer would want and there was other evidence in the record not mentioned in the expert report that supported the royalty the en banc court ruled 8 2 that the expert testimony should have been excluded one ground for reversal was that the court didn t explain the ruling admitting it why it was reliable this is important for future courts the second ground which we ll discuss here was that the expert s testimony that the royalty rate agreed to in the contracts was x was not supported by contract interpretation as a matter of law and therefore the opinion was unreliable and non salvageable by other evidence in the case which was a primary point of contention with the dissent in reaching this decision the court cited a lot of precedent on daubert all of it my thoughts on the case are below read more posted at 9 00 am labels damages tuesday may 13 2025 oswald do trade secret injunctions last forever posted by camilla hrdy an injunction in a trade secret case should generally end when the trade secret does but new empirical research by professor lynda oswald sheds new light on the actual lifetime of these injunctions the results are surprising oswald finds that in the vast majority 80 of cases in her dataset courts simply grant an open ended injunction without a fixed term while defendants could in theory move to dissolve the injunction when the trade secret ceased to exist oswald found no evidence this happened in effect the injunctions appear to have remained in effect indefinitely lynda oswald is the louis and myrtle moskowitz research professor of business and law at university of michigan s school of business professor oswald s article an empirical analysis of permanent injunction life in trade secret misappropriation cases has now been published in the iowa law review read more posted at 11 45 pm labels empirics trade secret tuesday march 4 2025 openevidence v pathway the legal battle over ai reverse engineering posted by camilla hrdy can generative ai models like chatgpt be reverse engineered in order to develop competing models if so will this activity be deemed legal reverse engineering or illegal trade secret misappropriation i have now written a few articles exploring this question including trade secrecy meets generative ai and keeping chatgpt a trade secret while selling it too but when i first asked this question a year and a half ago i was getting responses purely in the negative i asked a panel at a trade secret conference at georgetown in 2023 can chatgpt be reverse engineered several members of the panel laughed i would talk to ai experts and the answer i got was along the lines of it s not going to happen this post is cross posted on patently o read more posted at 9 14 am labels trade secret sunday february 9 2025 fagundes perzanowski a new framework for conceptualizing the end of ip rights posted by camilla hrdy dave fagundes and aaron perzanowski have just posted a very interesting and thought provoking paper draft on ssrn called how intellectual property ends the paper which follows up on their prior work on copyright abandonment closely examines how ip rights come to an end through doctrines like expiration forfeiture or abandonment the paper seeks to provide a taxonomy for thinking about how ip rights end the authors argue that imprecise or inconsistent uses of terms like abandonment and forfeiture deprives these terms of meaning and obscures the underlying logic of the doctrines as originally developed at common law 5 they instead posit a single unified framework for consistently conceiving of termination that can work across the four ip regimes read more posted at 10 51 am labels copyright trademark monday january 27 2025 buccafusco masur varadarajan does trade secrecy have an information paradox posted by camilla hrdy one of the key purposes of trade secret law is to address the arrow information paradox the information paradox posits that there is a fundamental challenge in information exchange it is difficult to assess the value of information without first sharing it but once the information is shared it becomes vulnerable to being copied leaving the originator without compensation and without a competitive advantage read more posted at 7 43 pm labels trade secret monday june 3 2024 guest post diversity pilots initiative comment on proposed changes to ptab practice posted by lisa larrimore ouellette guest post by ashton woods a jd candidate and member of the juelsgaard intellectual property and innovation clinic at stanford law school this post is part of a blog post series by the innovator diversity pilots initiative dpi which advances inclusive innovation through rigorous research dpi will be hosting its second conference at emory university law school in atlanta on friday september 20 2024 indicate your interest by signing up here on february 21 the uspto issued a notice of proposed rulemaking for expanding opportunities to appear before the patent trial and appeal board ptab and dpi filed one of seven comments on the proposal dpi s full comment can be found here currently parties appearing before the ptab who are represented by counsel must designate lead and backup counsel lead counsel must be a uspto registered practitioner meaning that they have technical training and have passed the registration exam commonly known as the patent bar exam backup counsel may be non registered if they are recognized pro hac vice under the proposed rule counsel can switch roles with a non registered practitioner acting as lead counsel and a registered practitioner acting as backup counsel additionally parties who can show good cause including financial hardship can waive the backup counsel requirement though the party s sole counsel must still be a registered practitioner finally the proposed rule streamlines the pro hac vice recognition process for non registered practitioners though they still must be accompanied by a registered practitioner in the lead or backup role as explained in more detail in the full comment dpi views the proposed rule as a modest step toward reducing the accessibility gap for potential patentees patent practitioners and patent challengers the goal of the proposed rule is laudable and it may provide a solid foundation for future efforts to diversify the patent bar and the patent system more broadly if it can effectively expand the pool of eligible practitioners in proceedings before the ptab the proposed rule may support wider uspto efforts to increase the participation of underrepresented communities in the innovation ecosystem read more posted at 3 03 pm labels diversitypilots thursday may 30 2024 gaia bernstein on unwired gaining control over addictive technologies posted by camilla hrdy guest post by gaia bernstein technology privacy and policy professor of law co director of the institute for privacy protection and the gibbons institute for law science and technology seton hall university school of law based on her recent tedx talk nine years ago when i sat down to research in a coffee shop took out my laptop kindle and phone but hours later realized that i accomplished little but felt fatigue what happened i realized the hours were wasted on emails texts and mostly aimless web surfing i started understanding them that something was wrong read more posted at 5 03 pm labels health innovation science saturday may 25 2024 catalog of court mandated ai disclosures cf uspto guidance posted by lisa larrimore ouellette guest post by victoria fang a jd candidate at stanford law before law school fang worked as a patent examiner at the uspto in the medical imaging and diagnostics space in the past year two chatgpt lawyers a california eviction law firm michael cohen and a colorado attorney have each made headlines for making the same mistake citing fake cases in legal filings in attempts to speed up their legal research these lawyers used generative ai tools like chatgpt and google bard that hallucinated nonexistent case law indeed use of generative ai by litigants raises issues of accuracy and confidentiality chatgpt has been known to hallucinate and has other limitations including being limited to information on the internet before certain date cutoffs and not actively searching the internet or dedicated legal databases for new information courts have responded to the increased use of generative ai by litigants through judge or case specific guidance standing orders and local rules which i have summarized in this spreadsheet these court mandates have been collated from various news articles ropes gray s artificial intelligence court order tracker launched in january 2024 and independently searching uscourts gov as summarized in the catalog only a few courts or judges outright prohibit the use of ai among courts that do not prohibit the use of ai some courts require disclosure and or certification and others make clear that verification by a human is required a number of judges even put a special emphasis on confidentiality more recently judges have begun requiring litigants to keep a record of the prompts and responses they used in case issues arise read more posted at 11 23 am labels ai thursday april 25 2024 diversity pilots initiative blog post series posted by lisa larrimore ouellette happy 1 year anniversary to the innovator diversity pilots initiative dpi today we feature two new posts one by lolita darden ppac chair and one by colleen v chien jillian grennan on unpacking the innovator inventor gap evidence from engineers see below for links below to all the diversity pilots initiative blog posts so far cross posted at diversitypilots org and patently o read more posted at 12 51 pm labels diversitypilots guest post by chien grennan unpacking the innovator inventor gap evidence from engineers posted by lisa larrimore ouellette guest post by colleen chien professor of law at the university of california berkeley school of law and co director of the berkeley center for law and technology and jillian grennan associate professor of finance and sustainability at the university of california berkeley haas school of business this post is part of a series by the diversity pilots initiative which advances inclusive innovation through rigorous research the first blog in the series is here and resources from the first conference of the initiative are available here which ip professionals ascend to partnership or top counsel roles which professors publish in the top journals and which innovators become inventors this question of who among lawyers academics or innovators reaches the next milestone in the progression of a career is relevant in many settings it has been a central focus in the world of innovation since uspto s director kathi vidal s urgent call to ensure that we get everyone off the bench in order to solve world problems and foster economic prosperity this call is motivated by the observation that while women comprise 35 of the stem workforce they make up only 13 of inventors black professionals represent 9 of stem workers but only 1 2 of inventors what explains this innovator inventor gap the reduced rate at which underrepresented innovators become inventors just as lawyers of varying backgrounds do not equally ascend in firms with women comprising a slight majority of associates but just 24 of equity partners the journey from conceiving an idea to becoming a named inventor on a patent is not just a matter of technical merit but rather is significantly influenced by the broader work environment because the progression from innovator to inventor happens largely behind closed corporate doors this critical gap has largely been overlooked and its causes largely unexplored despite technological innovations critical role as a driver of economic growth in our study unpacking the innovator inventor gap evidence from engineers which reports on a survey of close to 4 000 innovators across 4 firms and collaborating firms invention disclosure databases we use detailed administrative and survey data to unpack the forces underlying this gap and provide novel insights into the invention process how it is influenced by firm policies and its variation by demographics the study s unique empirical data reveal that inventorship far from being a rote translation of ideas into patents reflects an opt in competitive process in which only one third of engineers engage with their firm s formal invention submission processes and only half of these submissions progress to the patent application stage strikingly participation rates for women at each step of this journey are significantly lower read more posted at 11 07 am labels diversitypilots guest post by lolita darden ppac s bold strategy to transform patent inclusion posted by lisa larrimore ouellette guest post by lolita darden chair u s patent and trademark office patent public advisory committee managing partner darden betts strategic intellectual property counselors visiting associate professor george washington university law school this post is part of a series by the diversity pilots initiative which advances inclusive innovation through rigorous research the first blog in the series is here and resources from the first conference of the initiative are available here this year the patent public advisory committee also known as ppac turns 25 established in 1999 ppac is a 9 member advisory committee appointed by the secretary of commerce each member serves a 3 year term and i am starting my second year the primary purpose of the committee is to review the policies goals performance budget and user fees of the uspto with respect to patents the committee is also charged by statute to advise the director of the uspto on these matters and to prepare a report to congress on the advisory actions the committee has undertaken during the calendar year you can find the 2023 ppac annual report here as the new chair of ppac i look forward to collaborating with the committee and director vidal to serve the interests of the american people and the ip community in ways that enhance national and global competitiveness accelerate growth in gdp and drive innovation and entrepreneurship for those of you not familiar with ppac another function of the committee is to provide the director with feedback from our constituents about initiatives being undertaken by the uspto with respect to patent matters in that regard i view my role as chair as a facilitator working closely with committee members to provide advice and counsel to the director...
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