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Confidentiality & Intellectual Property

Early this week, we saw a small but significant ruling in what appears to be shaping up as an epic battle in patent warfare between some of the biggest players in the world’s technology space.  When the U.S. International Trade Commission determined that HTC infringed upon one patent held by Apple (the patent controls a “data tapping” feature which allows users to complete certain functions, such as scheduling appointments, in just one easy step), both sides seemed to claim victory.  Articles in both the New York Times and The Washington Post covered the ruling, as well as the post-ruling commentary from both sides, in good detail.

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The U.S. Supreme Court will continue its heightened interest in intellectual property issues, and, in particular, patent law issues. We can expect rulings from the high court (in the Microsoft/i4 and Scotus cases) on the issues of patent validity and indirect patent infringement, among others. Online privacy issues relative to web browsers and social networks will continue to be debated and likely litigated.

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Predictions for 2010?

On the enforcement front, the U.S. Supreme Court will announce its decision in the In Re Bilski case this Spring 2010, regarding the patentability of software and business methods. It seems likely the court will modify the present rules for patentability of software and business methods, while reaffirming the notion that software can constitute patent eligible subject matter.

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A convergence of regulatory changes and evolving corporate fiduciary duties has heightened the importance of sound intellectual property (IP) management. Directors and officers of public and private companies need to know about IP generally, understand their own company’s IP specifically, and be sufficiently informed to make or direct defensible judgments on IP issues.

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In the case In re Bilski, the Federal Circuit Court of Appeals issued its much anticipated decision concerning so-called "business method" patents. Although the Court sought to clarify the standard for determining patentability of business methods – including software patents – the decision raises as many questions as it answers.

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