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MONTHLY INSIGHTS
JULY 2018
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WTO Stomps Out Challenges to Australia's Tobacco Plain Packaging Laws
The World Trade Organization (WTO) awarded Australia a big victory over the challenges to its plain packaging laws for tobacco products by a handful of tobacco producing countries. After a seven year fight, the WTO rejected the arguments that plain packaging laws infringed on trademarks and intellectual property rights.
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Update on Brexit Negotations between UK and EU in the Field of IP Rights
On July 12th, 2018, the United Kingdom (UK) Government issued a White Paper on the Future Relationship between the UK and the European Union (EU). Since the White Paper is just a proposal advanced by the UK Prime Minister, it is unknown whether and to which extent the EU may find such a proposal acceptable. Nevertheless, the document may at least be considered a general indication of the goals the UK intends to achieve in its new relationship with the EU after Brexit.
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Inherent Disclosures in Prior Art in the United States
A patent claim may be rejected under 35 USC § 102 as being anticipated by a prior art reference if each and every element of the claim is disclosed by the prior art reference, either expressly or inherently. According to the inherency doctrine, a prior art reference inherently discloses a claim limitation when "the limitation at issue necessarily must be present, or [is] the natural result of the combination of elements explicitly disclosed by the prior art."
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First Case in China Using Blockchain Technology to Preserve Electronic Evidence
On June 28, 2018, the Hangzhou Internet Court of China (the "Court") made a public judgment regarding a dispute over infringement of the right to disseminate work on the Internet. In this judgment, the Court accepted the use of electronic data as evidence preserved by blockchain technology in a legal dispute while also specifying a method and process for examining electronic data preserved by blockchain technology. This case is significant because it is the first case in China involving the use of blockchain technology to preserve electronic evidence.
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Update #2 on Tribal Sovereignty at the Patent Trial & Appeal Board
The U.S. Court of Appeals for the Federal Circuit ("Federal Circuit") affirmed the Patent Trial & Appeal Board's (PTAB's) denial of Allergan's motion to terminate an inter partes proceeding ("IPR") on the basis of tribal sovereign immunity. Allergan's "trick"
[2]
of using sovereign immunity to cut off invalidity challenges has not worked at the district level, at the PTAB, or at the Federal Circuit
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Incorporated by Reference, But to What Extent?
Incorporation by reference is a useful mechanism by which an application can incorporate disclosure from other documents as if the disclosure was explicitly contained therein without having to repeat the disclosure in the application. "To incorporate material by reference, the host document must identify with detailed particularity what specific material it incorporates and clearly indicate where that material is found in the various documents."
Advanced Display Sys., Inc. v. Kent State Univ.
, 212 F.3d 1272, 1282 (Fed. Cir. 2000). However, depending on the incorporation language, it may not always be clear what portions of a document have been incorporated by reference into an application.
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