The Ever-Changing State of Intellectual Property Law

410 Pages·2017·5 MB·English

The Ever-Changing State
of Intellectual Property Law
Friday, March 10, 2017, Seattle, WA
Presented by WSBA CLE
in partnership with the Intellectual Property Law Section
Tell us what you think: www.surveymonkey.com/s/17602SEA

Co-Chairs and Faculty
A Special Thank You to Our Program Co-Chairs and Faculty!
Those who have planned and will present at this WSBA CLE seminar are volunteers. Their
generous contributions of time, talent, and energy have made this program possible. We
appreciate their work and their service to the legal profession.
P
rogram Co-Chairs
Elizabeth Reilly — Patentpending PLLC, Tacoma, WA
Thomas J. Satagaj — Seed IP Law Group PLLC, Seattle, WA
Kevin A. Zeck — Perkins Coie LLP, Seattle, WA
P
rogram Faculty
Theodore Angelis — K&L Gates LLP, Seattle, WA
Patchen Haggerty — Perkins Coie LLP, Seattle, WA
Alison Malsbury — Harris Bricken, Seattle, WA
Michael E. McCabe, Jr. — Funk & Bolton PA, Baltimore, MD
Scott Mckeown — Oblon, McClelland, Maier and Neustadt LLP, Alexandria, VA
Robert McVay — Harris Bricken, Seattle, WA
William C. Rava — Perkins Coie LLP, Seattle, WA
Jerry A. Riedinger — Perkins Coie LLP, Seattle, WA
Judge Benjamin Settle — United States District Court, Seattle, WA
Nagendra Setty — Orrick, Herrington & Sutcliffe LLP, Seattle, WA
Aravind Swaminathan — Orrick, Herrington & Sutcliffe LLP, Seattle, WA
Mark Wittow — K&L Gates LLP, Seattle, WA
Copyright © 2017 • Washington State Bar Association • All Rights Reserved
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17602SEA • THE EVER-CHANGING STATE OF INTELLECTUAL PROPERTY LAW • i
Summary of Contents
Program Schedule ...........................................................................................................iii
Co-Chair Biographies. ...................................................................................................... v
1 Patent Law Year In Review ................................................................................1-1
Theodore Angelis
2 Patent Litigation Strategies in Light of Alice Corp. v. CLS Bank Int’l ....................2-1
Jerry A. Riedinger
3 The Evolution of PTAB Trial Practice - Just Because You Can, Doesn’t Mean You
Should! ..............................................................................................................3-1
Scott Mckeown
4 Copyright Year in Review: 2016 Cases (Plus a Few Other Items of Note)...........4-1
Mark Wittow
5 Trademark Law - Year in Review ........................................................................5-1
Patchen Haggerty
6 Recent Developments in Generic Top Level Domain Names ..............................6-1
William C. Rava
7 Keynote Presentation ......................................................................................... 7-1
Judge Benjamin Settle
8 Data Privacy & Cybersecurity: Why It Matters to the IP Practitioner ...................8-1
Aravind Swaminathan
9 DTSA - A Review of the Defend Trade Secrets Act and its Application in the First
Year Since Enactment ........................................................................................9-1
Nagendra Setty
10 Recent Developments in Cannabis Law and Intellectual Property ....................10-1
Alison Malsbury
11 Surviving The Perfect Protostorm: An Anthology of Recent IP Malpractice
Decisions ..........................................................................................................11-1
Michael E. McCabe, Jr.
12 Rules of Professional Conduct (Table of Rules) .................................................12-1
17602SEA • THE EVER-CHANGING STATE OF INTELLECTUAL PROPERTY LAW • ii
Program Schedule
The Ever-Changing State of
Intellectual Property Law
Friday, March 10, 2017
8:00 a.m. Check-in • Walk-in Registration • Coffee and Pastry Service
- PATENT LAW TRACK -
8:25 a.m. Welcome and Introductions by Program Co-Chair
Thomas J. Satagaj, Seed Intellectual Property Law Group LLP, Seattle
8:30 a.m. Patent Law Year In Review
This presentation will recount the wild, zany, and otherwise eventful developments
in patent law in 2016. We will talk about the Supreme Court’s rejections of the
Federal Circuit’s damages frameworks in Halo/Stryker and Apple v. Samsung, and
we will look ahead to the key issues it will decide in 2017. We also will discuss the
Federal Circuit’s most notable 2016 opinions.
Theodore Angelis, K&L Gates LLP, Seattle
9:30 a.m. Patent Litigation Strategies in Light of Alice Corp. v. CLS Bank Int’l
Alice v CLS Bank has wreaked havoc upon enforcement of method patents,
especially software and Internet patents, making “unpatentable subject matter”
a critical litigation defense. Sufficient decisions from both District Courts and the
Federal Circuit have occurred to provide guidance on strategies for both plaintiffs
and defendants. This session will explore the best and worst of those strategies.
Jerry A. Riedinger, Perkins Coie LLP, Seattle
10:30 a.m. BREAK
10:45 a.m. The Evolution of PTAB Trial Practice - Just Because You Can, Doesn’t
Mean You Should!
From motion practice to development of the trial record to discovery tactics, there
are plenty of opportunities to shoot oneself in the foot at the PTAB. This segment
will explore the significant differences between administrative trial before the PTAB
and district court practices. Best practices will be discussed along with expected
changes and trends going forward.
Scott Mckeown, Oblon, McClelland, Maier and Neustadt LLP, Alexandria, VA
11:45 a.m. BREAK and move to Luncheon
Schedule continued on next page
17602SEA • THE EVER-CHANGING STATE OF INTELLECTUAL PROPERTY LAW • iii
Program Schedule (cont.)
- COPYRIGHT/TRADEMARK LAW TRACK -
8:25 a.m. Welcome and Introductions by Program Co-Chair
Kevin A. Zeck, Perkins Coie LLP, Seattle
8:30 a.m. Copyright Law - Year in Review: Key Developments and Pending Cases
We’ll review an active year of copyright law, looking at key decisions and pending
cases concerning copyrightability/originality, fair use, public performance rights
and streaming, the DMCA safe harbor, and copyright infringement and substantial
similarity determinations. We’ll be looking at litigation about cheerleader uniforms,
the Batmobile, monkey selfies, Star Trek fan fiction, chicken sandwiches,
Madonna’s “Vogue,” Led Zeppelin’s “Stairway to Heaven,” PlumbBobs, pre-1972
sound recordings, mobile device software, stream-ripping, “Who’s on First?” --
and more.
Mark Wittow, K&L Gates LLP, Seattle
9:30 a.m. Trademark Law - Year in Review
We will review recent developments in trademark law, including: (1) the
constitutionality of § 2(a) of the Lanham Act following In re Tam; (2) the effect of B&B
Hardware; (3) the availability of preliminary injunctive relief and the presumption of
irreparable harm; and (4) initial interest confusion under the Ninth Circuit’s recent
decision in Multi Time Machine, Inc. v. Amazon.
Patchen Haggerty, Perkins Coie LLP, Seattle
10:30 a.m. BREAK
10:45 a.m. Recent Developments in Generic Top Level Domain Names
William C. Rava, Perkins Coie LLP, Seattle
11:45 a.m. BREAK and move to Luncheon
11:45 a.m. Luncheon with the Intellectual Property Section Annual Meeting and
Elections
Keynote Presentation: Judge Benjamin Settle, United States District Court
1:00 p.m. Data Privacy & Cybersecurity: Why It Matters to the IP Practitioner
Hackers and cyber attackers are not just after personal data, many (including
nation-state actors) are after trade secrets and intellectual property. Thus, preparing
for such attacks and ensuring we are appropriately and reasonably protecting such
information is key. In this session, we will cover proactive cybersecurity and the
interplay with trade secret protections.
Aravind Swaminathan, Orrick, Herrington & Sutcliffe LLP, Seattle
Schedule continued on next page
17602SEA • THE EVER-CHANGING STATE OF INTELLECTUAL PROPERTY LAW • iv
Program Schedule (cont.)
2:00 p.m. DTSA - A Review of the Defend Trade Secrets Act and its Application
in the First Year Since Enactment
This discussion will cover the key provisions of the federal Defend Trade Secrets
Act, enacted in 2016, and review the early cases in which the Act has been
interpreted and applied. We will touch on the data, including individual cases,
preferred jurisdictions, and the outcomes. We will discuss the extraordinary
seizure provisions, temporary restraining orders involving the Act, and assess the
materiality of the differences between the Act and state law trade secrets remedies.
Nagendra Setty, Orrick, Herrington & Sutcliffe LLP, Seattle
3:00 p.m. BREAK
3:15 p.m. Recent Developments in Cannabis Law and Intellectual Property
This session will cover the current state of intellectual property in the cannabis
industry as it pertains to federal and state trademarks, trademark licensing,
copyrights, trade secrets, and IP litigation.
Alison Malsbury, Harris Bricken, Seattle
Robert McVay, Harris Bricken, Seattle
4:00 p.m. Surviving The Perfect Protostorm: An Anthology of Recent IP
Malpractice Decisions
The threat of legal malpractice looms large in the private practice of intellectual
property law. Whether your work is in the field of IP prosecution, litigation, or
licensing, it makes no difference. Attorneys who practice in the field of IP law
are at significant risk of malpractice litigation by dissatisfied clients. Moreover,
although IP malpractice lawsuits are relatively rare compared to similar types of
actions in other practice areas, when an IP malpractice claim hits, it usually hits
hard. Relatively high defense costs, time and energy consumed on defending a
claim, and the possibility of a substantial damages award can create the “perfect
storm.” This session will tell the stories behind some of the most important recent
IP malpractice decisions and the lessons IP practitioners and law firms can learn
from those cases.
Michael E. McCabe, Jr., Funk & Bolton PA, Baltimore, MD
5:00 p.m. Adjourn • Complete Evaluation Forms
5:15 p.m. Meet and Greet
17602SEA • THE EVER-CHANGING STATE OF INTELLECTUAL PROPERTY LAW • v
Co-Chair Biographies
Elizabeth Reilly
Elizabeth Reilly is a patent attorney and owner of the law firm Patentpending, PLLC, where
she focuses her legal practice on patent prosecution, patent disputes, trademark
prosecution, and trademark disputes, generally, for the individual inventor. She represents
a formidable list of domestic clients in a wide variety of industries, particularly, mechanical
devices, medical devices, fashion apparel, glassware, and food consumer goods. She,
also, serves on the Washington State Bar Association’s Intellectual Property Executive
Committee as Chair. She is a registered attorney with the United States Patent and
Trademark Office; Washington State Bar; and New York State Bar.
Thomas J. Satagaj
Tom Satagaj is a patent attorney & partner at Seed IP Law Group PLLC, once again a
U.S. News & World Report and Best Lawyers® Tier 1 patent law firm. Before joining Seed
in 2006, Tom spent nearly 20 years as an embedded engineer, systems architect, and
team leader in the electronics industry.
Kevin A. Zeck
Kevin Zeck is Counsel with the law firm Perkins Coie LLP, where he focuses his practice on
patent and trade secret litigation. He has been named a Rising Star (Intellectual Property
Litigation) by Super Lawyers Magazine, 2015-2016. He has also served on the Executive
Committee of the Washington State Bar Association’s Intellectual Property Section since
2012, and is currently the Chair-Elect of the IP Section. He was admitted to the Washington
State Bar in 2009.
17602SEA • THE EVER-CHANGING STATE OF INTELLECTUAL PROPERTY LAW • vi
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Seminar Sponsor: WSBA-CLE
Seminar Name: The Ever-Changing State of Intellectual Property Law (17602SEA)
Seminar Date: March 10, 2017
Approved Credits: 6.75 CLE Credits for Washington Attorneys (5.75 Law & Legal Procedure, 1.0 Ethics
and 0.0 Other)
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17602SEA • THE EVER-CHANGING STATE OF INTELLECTUAL PROPERTY LAW • vii
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