Patently-O Bits & Bytes by Lawrence Higgins

Is the color red functional for shoe outsoles?

  • Judge Victor Marrero recently decided the famous Louboutin red outsole trademark case and decided that the color red is functional for shoe soles. Lanham 2(e) (5) states that "no trademark…shall be refused registration…unless it– comprises any matter that, as a whole, is functional." This was a difficult case to decide, counsel for both sides made great arguments. I think the Judge had a difficult job, and basically looked at the impact the case would have on trademark law and the market. Judge Marrero stated "if Louboutin owns Chinese Red for the outsole of that another designer high fashion women's shoes, another designer can just as well stake out a claim for exclusive use of another shade of red or even Louboutin's color, for the insole…" Judge Marrero seems to think that the flood gates would open and individuals would want to trademark a color for all types and aspects of shoes. In theory Judge Marrero is 100% correct, however, I am not sure if I agree with Judge Marrero since the trademark was granted in 2008 and I have not seen any other shoe maker using colored outsoles. I am sure Louboutin will appeal the decision to cancel the red outsole trademark if the decision is finalized on August 17, 2011. [Opinion]

Mark Cuban—My Suggestion on Patent Law

  • Mark Cuban is the outspoken owner of the NBA champion Dallas Mavericks and he wanted to express his view of the patent system. Mark suggests that the solution to the patent system is to end all software patents and all process patents. He believes that software has enough protection because it is copyrightable and process patents have no purpose at all. Some benefits of eliminating process and software patents that Mark proposes are: reducing court room costs, improving the efficiency of the Patent Office, ending the current patent arms race, and creating jobs. [Link]

Will Gene Patents Impede Whole Genome Sequencing?

  • Professor Chris Holman of UMKC law school and Holman's Biotech IP Blog is in the process of finalizing an article entitled "Will Gene Patents Impede Whole Genome Sequencing?: Deconstructing the Myth That 20% of the Human Genome Is Patented". In the article Professor Holman points out that many people believe that over 20% of the genome is patented and that these patents preclude researchers from studying or even looking at the patented genes. However, Holman calls this a misperception and there is no reason to believe that 20% of human genes are off-limits. Holman states that a vast majority of human gene patents were drafted in a manner that would not encompass whole genome sequencing. [Link]

Patent Jobs:

  • Gifford, Krass, Anderson, Sprinkle & Citkowski is seeking a partner for its Ann Arbor, MI office. [Link]
  • Morris & Kamlay is seeking a patent attorney with a technology/science background to work in their Washington, D.C. office. [Link]
  • Rutan & Tucker is searching for 2 patent agents with 2-4 years of experience and a science background. [Link]
  • The American Intellectual Property Law Association (AIPLA) is seeking an individual to fill its Deputy Executive Director -International & Regulatory position. [Link]
  • Kraft Foods is searching for a patent attorney with a minimum 5 years of experience. [Link]
  • Los Alamos National Security is seeking a patent attorney with a minimum of 8 years of experience. [Link]

Upcoming Events:

  • The 2nd European Pharmaceutical Regulatory Law Forum will be held in Brussels, Belgium September 21-22nd. The forum will focus on recent developments affecting the pharma industry in Europe and will discuss the impact of US developments on European companies. (Patently-O readers can register with code PO 10 for a 10% discount) [Link]
  • American Conference Institute's Life Sciences Business Development & Acquisitions in Emerging Markets conference is scheduled for September 26-27 in New York, NY. (Patently-O readers can register with code PO 200 for a discount) [Link]
  • Boston University School of Law and the Kauffman Foundation will be holding a Workshop on Innovation and Patent Harmonization at Boston University School of Management on September 30-October 1. The workshop will cover the effect of harmonization in both advanced countries, such as the US, and in developing nations, with a particular focus on China. Anyone interested in attending, please RSVP to Elizabeth Aggot at [Link]
  • American Conference Institute's 12th Annual Maximizing Pharmaceutical Patent Life Cycles will take place in New York on October 4th-5th. The conference is one of the leading sources of information and analysis on the patent life cycle management. (Patently-O readers can register with code PO 200 for a discount) [Link]
  • C5 will be holding the 21st annual Forum on Biotech Patenting in London on October 5th-6th. The 2011 London Biotech Patenting Forum will focus on the latest legal developments affecting biotech companies and how to implement successful methods and strategies for drafting and filing patent applications in multiple jurisdictions. (Patently-O readers can save 100 pounds by using discount code PO 100) [Link]
  • American Conference Institute will be holding a FDA Boot Camp Device Edition conference on October 25th-October 26th in Chicago. (Patently-O readers can register with code PO 200 for a discount) [Link]
  • IPMI is holding the IP Law & Management Institute on November 6th – 8th at the Rancho Las Palmas in Palm Springs, CA. Hailed as "One of the few programs geared to experienced in-house IP Counsel", the Institute is a CLE-accredited program designed to provide time-starved Heads of IP with the Opportunity to meet and network with their peers, learn from the best practices and validate solutions and services. [Link]

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