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  • FIFA 2018 and Bitcoin among 2017?s Main Spam and Phishing Topics
    MOSCOW - According to Kaspersky Lab’s “Spam and phishing in 2017” report, criminals have been following a global agenda and have been using hot topics such as FIFA 2018 and Bitcoin to fool users and steal their money or personal information in the last 12 months.   Spammers have shown themselves to be thoughtful actors, instantly monitoring global issues and major events around the globe with one main purpose – to capture and capitalize on their victim’s attention. Kaspersky Lab’s ongoing research on spam and phishing activities confirms the methods used by spammers are effective, due to users’ decreasing attention and increasing unconditional trust. These factors, combined, mean that people are more likely to follow false instructions. While in 2017 the world has been intensively preparing for FIFA 2018, spammers have been actively spreading related emails. Thus, they’ve been sending victims fraudulent messages with official logos of the event, including organizers and sponsor brand information, and notifying users about lottery wins and even promising them free tickets. Another hot spam and phishing topic in 2017 was cryptocurrency - as Bitcoin’s price has drastically increased. Kaspersky Lab researchers have previously recorded a growth in blockchain-themed tricks in the third quarter of 2017. By the end of the year, an extensive arsenal of spammer tools was noted. According to Kaspersky Lab’s discoveries, criminals have been using tricks such as websites disguised as cryptocurrency exchanges, fake services offering cloud mining, i.e. the use of specialized data centers for rent. But in all cases users became the victims - losing money instead of earning any. In more traditional fraud schemes, such as fake lottery winnings, criminals have also started to use Bitcoin as bait, and in addition to targeted address databases advertised through spam, databases with emails for cryptocurrency users have been also offered for purchase, promising great opportunities. Moreover, criminals have distributed different types of malware in spam emails, under the guise of utilities for earning Bitcoins, or instructions for cryptocurrency trading. However, importantly, Cryptolockers, whose creators demanded a Bitcoin ransom, have been detected in spam letters less than in the previous year. Overall, the average amount of spam in 2017 decreased to 56.63%, which is 1.68 percentage points less than in 2016. At the same time, the number of the phishing attacks increased – the Kaspersky Lab Anti-Phishing system was triggered 246,231,645 times on the computers of Kaspersky Lab users, which is nearly 59% higher than in 2016. The proportion of spam in email traffic in 2017   “Though In 2017 we saw a slight decrease in spam activities, throughout the year spammers haven’t missed any reason to steal users’ personal information, keeping their eyes on what’s happening in the world. As sports events such as upcoming FIFA World Cup or others take place, their activity will only increase.” said Darya Gudkova, Spam Analyst Expert at Kaspersky Lab. “Moreover, in 2018 we expect further development and growth of cryptocurrency-related spam and phishing - with more cryptocurrency diversity besides Bitcoin, which was widely used in the previous year, and with 'pump and dump' schemes. Other important trends and statistics in 2017, highlighted by Kaspersky Lab researchers, include the following: • The most popular source of spam was the USA (13.21%), followed by China (11.25%) and Vietnam (9.85%). Others in the top 10 include India, Germany, Russia, Brazil, France, and Italy. • The country most targeted by malicious mailshots was Germany (16.25%), showing a slight increase of 2.12 percentage points compared to 2016. Others in the top 10 include China, Russia, Japan, UK, Italy, Brazil, Vietnam, France, and UAE. • The largest percentage of users affected by phishing was in Brazil (29.02%). Overall, 15.9% unique users of Kaspersky Lab products worldwide were attacked by phishing. Kaspersky Lab recommends home users install a reliable secure solution, such as Kaspersky Total Security, which is able to detect and block phishing attacks and spam in standalone email clients. Businesses are recommended to use security solutions with dedicated functionality aimed at detecting and blocking phishing, malicious attachments and spam. Businesses can protect their on-premises email systems with targeted applications inside Kaspersky Endpoint Security for Business suite.  
  • ICANN Holds First Capacity Development Workshop for Asia GAC Members
    SINGAPORE – The Internet Corporation for Assigned Names and Numbers (ICANN), in cooperation with the ICANN Governmental Advisory Committee (GAC) Underserved Regions Working Group, announced the first capacity-development workshop for Asia GAC members and representatives, to be held from 24–25 February 2018 in Kathmandu, Nepal, with the support of Nepal's Department of Information Technology. According to ICANN, Sanjay Sharma, Secretary, Ministry of Science and Technology, Nepal, will give the opening remarks. Almost 20 government representatives from 11 economies in Asia will attend the workshop. In rapidly developing Asia, expected home to the next billion Internet users, challenges remain in ensuring adequate and secure Internet access. Barriers to participation in ICANN include a lack of human resources and knowledge about the Domain Name System (DNS). The workshop, which aims to address these challenges, will feature key ICANN policy topics and the relevant GAC and cross-community working groups. Topics will include: • Understanding the ICANN ecosystem • Understanding the Internet: names, numbers, protocol parameters • Security, stability, and resiliency (SSR) of unique Internet identifiers • ICANN policy development process Speakers from regional Internet organizations will introduce their ongoing work in the Asia Pacific region as part of the Internet ecosystem. Workshop participants will discuss effective ways to participate and contribute to ICANN discussions. Additionally, the workshop will seek feedback from Asia GACrepresentatives on how best to support their work and increase their presence in the region and in ICANN.  
  • Selumetinib Granted Orphan Drug Designation by the US FDA
    KENILWORTH, NJ - AstraZeneca and Merck, known as MSD outside the US and Canada, announced that the US Food and Drug Administration (FDA) has granted Orphan Drug Designation (ODD) for selumetinib, a MEK 1/2 inhibitor, for the treatment of neurofibromatosis type 1 (NF1). According to Merck, NF1 is an incurable genetic condition that affects one in 3,000 births with highly-variable symptoms including cutaneous (skin), neurological (nervous system) and orthopedic (skeletal) manifestations. NF1 can cause secondary complications including learning difficulties, visual impairment, pain, disfigurement, twisting and curvature of the spine, high blood pressure and epilepsy. Plexiform neurofibromas (PNs) are tumors that arise from nerve fascicles and tend to grow along the length of the nerve. PNs, a neurological manifestation of NF1,occur in approximately 20-50 percent of NF1 patients causing pain, motor dysfunction and disfigurement. Sean Bohen, executive vice president, global medicines development and chief medical officer, AstraZeneca, said, “Neurofibromatosis type 1 is a devastating condition that can lead to life-threatening complications. There is no known cure for neurofibromatosis and there are limited treatment options to manage symptoms.” Dr. Roy Baynes, senior vice president and head of global clinical development, chief medical officer, Merck Research Laboratories, said, “This is an important collaborative effort with our colleagues at AstraZeneca addressing an area of significant unmet medical need to potentially benefit patients with neurofibromatosis type 1.” The potential benefit of selumetinib in NF1 is being explored in the U.S. National Cancer Institute-sponsored phase 1/2 SPRINT trial in pediatric patients with symptomatic NF1-related PNs. Phase II trial results are expected later in 2018. The FDA’s ODD program provides orphan status to medicines that are defined as those intended for the safe and effective treatment, diagnosis or prevention of rare diseases or disorders that affect fewer than 200,000 people in the US. In addition to NF1, selumetinib is being investigated in the phase 3 ASTRA trial of patients who are diagnosed with differentiated thyroid cancer (DTC) following surgery and treatment with radioactive iodine. Selumetinib was granted ODD by the US FDA for the adjuvant treatment of stage 3/4 DTC in 2016. It is also being explored as a monotherapy and in combination with other treatments in phase 1 trials.  


  • Boston Scientific IP Attys Must Defend Doc-Redact Request
    A California federal judge on Thursday denied Boston Scientific Corp.’s bid to seal documents related to Nevro Corp.’s suit claiming infringement of its spinal cord pain treatment patents, saying Boston’s attorneys must file explanations why they shouldn’t be sanctioned for “frivolous and vexatious conduct.”
  • Merck Unit Loses $2.5B Verdict As Hep C Patent Invalidated
    A Delaware federal judge dismantled a Merck & Co. unit’s $2.5 billion jury verdict win over Gilead Sciences Inc. in an infringement suit over a hepatitis C drug patent, finding Friday that the patent’s claims weren’t specific enough for an experienced scientist to successfully re-create the formula.
  • PTAB Will Review Amgen Patent Tied To Sanofi Eczema Drug
    The Patent Trial and Appeal Board said Thursday it would review a patent owned by Amgen unit Immunex — which Sanofi says stands in the way of its new eczema biologic — with the board finding Sanofi met the standard set out in its recent General Plastic ruling.

Spicy IP News
  • SpicyIP Weekly Review (February 11 – 17)
    We’ve had a busy week at the blog this week, with several guest contributors and interesting discussions on our comments threads too. The week’s thematic highlight is Mathews three-part post analyzing Section 31D of the Copyright Act, and criticizing the order of the Punjab and Haryana High Court in ordering the Registrar of Copyrights to exercise power under Section 31D. The first part of the post notes that the IPAB is supposed to function as an independent tribunal, which is...
  • Patent Working PIL (Update): Court Clarifies Patent “Licensing” Confidentiality and Suggests Form 27 Reform
    (This post has been co-authored with Prof. Shamnad Basheer)  Last week, we brought to you news of yet another well reasoned and lucid order from a Division Bench of the Delhi High Court (comprising Acting Chief Justice Gita Mittal and Justice Hari Shankar) in our Patent Working PIL (see here and here). This order (dated February 7, 2018) is now available on the Delhi High Court website here. The order again reiterates the importance of the patent working disclosure requirement...
  • SpicyIP Events: 7th Annual IP Teaching Workshop, 2018 [NLU Delhi, March 24]
      We are pleased to announce that the Centre for Innovation, Intellectual Property and Competition (CIIPC) in association with National Academy of Law Teaching is organising the 7th Annual IP Teaching Workshop 2018 at National Law University, Delhi (NLUD) on March 24, 2018. The last date for submission of applications is March 1, 2018. For further details, please read the post below.   7th Annual IP Teaching Workshop- 2018 March 24, 2018 National Law University Delhi (NLUD) The VII Annual IP Teaching Workshop- 2018 is being organised by...


  • No Rehearing Because of Hindsight Declaring

    The Patent Trial and Appeal Board (PTAB) denied a petitioner’s request for rehearing of its decision declining institution of inter partes review of a patent owned by Bose Corporation (“Patent Owner.”) The PTAB upheld its finding that the supporting declaration of Petitioner’s expert relied on “a far too general reason” to combine prior art, was conclusory, and engaged in impermissible hindsight.

    Petitioner argued that certain patent claims directed to an in-ear earpiece were invalid in view of prior art references Howes and Sapiejewski. In its supporting declaration, Petitioner’s expert opined that Howes discloses a “known, retention problem with in-ear earpieces” that, because of their “weight and overall size” in-ear earpieces, have a tendency to fall out of the ear. Petitioner’s expert also opined that Sapiejewski’s in-ear earpiece would have had this same retention problem because of its weight and overall size, and, thus, a person of ordinary skill in the art (POSA) would have been motivated to combine the disclosures of Sapiejewski with those of Howes.

    The PTAB, however, found that, apart from conclusory statements, Petitioner’s expert did not explain how a POSA would even know the weight and overall size of Sapiejewski’s earpiece or that it would result in a retention problem. To the contrary, the PTAB found that disclosures in Sapiejewski—stating that its earpiece “is designed to comfortably couple the acoustic elements of the earpiece to the physical structure of the wearer’s ear”—indicate that its earpiece did not actually suffer from the retention problem. Moreover, the PTAB found that Petitioner’s expert also failed to explain “why a general need to secure an earpiece . . . would lead to [the combination]” when “that function already is provided by the Sapiejewski device.” Thus, the PTAB agreed with Patent Owner and concluded, “Petitioner relies on a far too general reason to combine the references and engages in impermissible hindsight as to the particular combination of the teaching of Sapiejewski and Howes.” Because Petitioner failed to point out any factors that the PTAB misapprehended or overlooked in its decision denying institution, Petitioner’s request for rehearing was denied.

    Notably, Petitioner also failed to convince the PTAB that it misapprehended or overlooked that the Patent Owner suppressed or concealed its invention by waiting an unreasonably long time to file its patent application. In denying rehearing, the PTAB explained that it considered and credited evidence submitted by Patent Owner that it tried and tested many different designs in order to perfect the claimed invention. Thus, the PTAB upheld its determination that Patent Owner successfully antedated a third prior art reference.

    FreeBit AS v Bose Corporation, IPR2017-01309, Paper 10 (PTAB Jan. 23, 2018).

  • Federal Circuit Erases $48.5 Million Damages Award, Vacating Decisions on Invalidity, Damages, and Willfulness in Lawn Mower Manufacturer Dispute

    On January 12, 2018, the Federal Circuit vacated and remanded a district court summary judgment determination of no invalidity, as well as jury findings of willfulness and damages, in its decision in Exmark Manufacturing, Co. v. Briggs & Stratton Power Products Group, LLC. In particular, the Federal Circuit held the district court erred when it granted summary judgment of no invalidity to Exmark Manufacturing, Co. (“Exmark”) based solely on the fact that its patent survived multiple reexaminations involving the same art. The Federal Circuit also found insufficient evidence to support the jury’s damages award, and held the district court abused its discretion when it excluded certain evidence related to willfulness.

    This appeal arose from an infringement suit filed by Exmark against Briggs & Stratton Power Products Group, LLC (“Briggs”) and Schiller Grounds Care Inc.1 (“Schiller”) for infringement of Exmark’s lawn mower patent in the District Court for the District of Nebraska. The Exmark patent generally claims a lawn mower having improved flow control baffles, which are metal structures under a mower deck that direct air flow and grass clippings during operation.


    Before filing suit, Exmark placed its patent in a reexamination in which the PTO confirmed the patentability of its claim 1. Both Briggs and Schiller also requested reexaminations of the Exmark patent, asserting the same prior art that it raised in its invalidity defenses in the district court litigation. The district court stayed the litigation pending completion of the Briggs and Schiller reexams. The PTO confirmed patentability of claim 1 of the Exmark patent in both of those reexams as well.

    Once the reexams completed and the district court lifted its stay, Exmark moved for summary judgment of no anticipation and no obviousness. The district court granted Exmark’s motion, holding that “no reasonable juror could find that the defendants have met their burden of proving by clear and convincing evidence that the claims of the patent are invalid,” in view of the fact that Exmark’s patent survived three reexaminations by the PTO.

    On review, the Federal Circuit held that a reexamination confirming patentability of a claim is not, by itself, determinative of whether genuine issues of fact preclude summary judgment of no invalidity. The Federal Circuit reasoned that such a grant would improperly give complete deference and preclusive effect to the PTO’s patentability determinations, thus foreclosing challenges to validity in district courts. Rather, the deference owed to a decision of the PTO comes in the form of the presumption of validity, which can be overcome by clear and convincing evidence. The Federal Circuit recognized the logical appeal of Exmark’s argument that a party that was unable to invalidate claims before the PTO under the lower preponderance standard and applying a broader claim construction standard could not possibly meet its clear and convincing burden to prove invalidity in a district court. Nevertheless, the Federal Circuit held that substantive and procedural differences between the district court and the PTO, including the level of involvement permitted a challenger in an ex parte reexamination, preclude a district court from relying solely on the PTO’s determination to award summary judgment of no invalidity.


    Briggs also challenged the jury’s approximately $24 million damages verdict on appeal. First, Briggs argued that Exmark’s expert failed to properly apportion the improved baffle feature claimed in the Exmark patent through the royalty base, rather than the royalty rate. The Federal Circuit rejected this argument, and held that the accused mower could serve as an acceptable royalty base so long as apportionment was then accomplished through the royalty rate: “The essential requirement is that the ultimate reasonable royalty award must be based on the incremental value that the patented invention adds to the end product.”

    Second, Briggs argued that Exmark’s damages expert’s opinion was inadmissible because she failed to tie her royalty rate to the facts of this particular case. The Federal Circuit agreed with this argument. In particular, the Federal Circuit found that Exmark’s expert failed to show how her proposed 5% royalty rate connected to the relevant Georgia-Pacific factors. More specifically, the Federal Circuit held that it was not enough for Exmark’s expert to recite the advantages of the claimed invention. She was required to explain the extent to which those advantages factored into the 5% royalty rate. The Federal Circuit further held that some accounting must also be made for other components that Exmark’s expert stated did not influence the overall value of the lawn mowers.

    In remanding the case for a new trial on damages, the Federal Circuit further held that the district court abused its discretion when it previously ruled that prior art is relevant to damages only to the extent that the prior art was commercialized. The Federal Circuit reasoned that the fact that some prior art mowers were not commercialized does not make them immaterial to determining the extent to which Exmark’s patented invention provides utility and advantages over the prior art.


    Finally, Briggs argued that it was entitled to a new trial on willfulness and vacatur of the district court’s enhanced damages award based on the Supreme Court’s decision in Halo Electronics, Inc. v. Pulse Electronics, Inc., 136 S. Ct. 1923 (2016). Before holding a trial on willfulness, the district court excluded Brigss’ evidence regarding the validity of claim 1 of the Exmark patent because it found Briggs’ litigation defenses unreasonable based on the standard set forth in In re Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007).

    The Federal Circuit vacated the district court’s evidentiary ruling, holding that, under Halo, a jury must decide the entire willfulness determination, including whether a litigation defense is reasonable. Thus, the district court erred to the extent it excluded evidence relevant to Briggs’ state of mind at the time of the accused infringement. In remanding this aspect of the district court’s decision, the Federal Circuit instructed the district court to determine whether Briggs knew of the prior art at the time of the accused infringement, and should therefore, be granted a new trial on willfulness, or whether the previously-excluded evidence only relates to litigation-inspired defenses.

    Exmark Manufacturing, Co. v. Briggs & Stratton Power Products Group, LLC, No. 8:10-cv-00187-JFB-TDT (Fed. Cir. Jan 12, 2018)

    1 Schiller did not participate in this appeal.

  • PTAB Relies on Priority Analysis in a Related Proceeding in Denying IPR

    The Patent Trial and Appeal Board (PTAB) recently denied institution of an inter partes review (IPR), holding that the patent at issue had an effective filing date antedating the primary prior art reference. The petitioners–ESET, LLC and ESET spol s.r.o. (collectively, “ESET”)–filed an IPR petition against U.S. Patent No. 8,079,086 (the “’086 Patent”). ESET concurrently moved for joinder with FireEye, Inc. v. Finjan, Inc., IPR2016-01444 (the “01444 proceeding”), which also challenged the ’086 Patent. The ’086 Patent is directed to systems and methods of protecting computers from malicious operations controlled by remotely operable code. The ’086 Patent is a continuation-in-part of U.S. Patent No. 7,613,926 (the “’926 Patent”), which was the subject of Palo Alto Networks, Inc. v. Finjan, Inc., IPR2016-00145 (the “00145 proceeding”).

    ESET argued that the claims of the ’086 Patent are obvious in view of several combinations of prior art references, primarily relying on a reference titled Proof-Carrying Code (“Necula”). In the 01444 proceeding, Finjan argued that FireEye had failed to establish that Necula antedated the priority date of the ’086 Patent. ESET argued that the ’086 Patent was not entitled to a priority date antedating Necula because none of the patents or patent applications from which the ’086 Patent claimed benefit disclosed the specific limitations claimed by the ’086 Patent. The PTAB stated that it had analyzed the claims of the ’926 Patent in the 00145 proceeding and sided with the patent owner, finding that the disclosure provided sufficient written-description support. The PTAB noted that the claims of the ’086 Patent at issue contained limitations that were nearly identical to those of the ’926 Patent. For example, Claim 1 of the ’926 Patent recites “appending a representation of the retrieved Downloadable security profile data to the incoming Downloadable, to generate and appended Downloadable,” and Claim 1 of the ’086 Patent recites the same limitation without the words “retrieved” and “incoming”.

    Given that the claim language of the ’926 Patent was nearly identical to that of the ’086 Patent, the PTAB held that the ’086 Patent shares essentially the same disclosure as the ’926 Patent. The PTAB also noted that the ’086 Patent incorporates the ’926 Patent by reference. The PTAB therefore denied ESET’s petition and joinder motion.

    ESET, LLC v. Finjan, Inc., IPR2017-01969, Paper No. 8 (PTAB January 9, 2018).


  • BLOG: Oppo back on the patent purchase trail to facilitate expansion in new markets
    Chinese smartphone maker Oppo has made its first patent purchase of 2018 - and Intel is the seller. According to USPTO records, the Dongguan-based smartphone vendor obtained 37 US assets in one assignment on 17th January  (the transfers were recorded on Sunday). All the patents involved were formerly owned by Intel, and they were assigned to an entity named Sky Royal Trading Limited before landing in Oppo’s possession. Sky Royal Trading is a Hong Kong registered company with no previous patent assignment record or other online footprint. It’s not clear whether it is a broker or a bespoke Oppo patent acquisition vehicle. Over the...
  • ARTICLE: Intellectual property and artificial intelligence: what does the future hold?
    Artificial intelligence is creating a seismic shift in the way that people interact with technology. Research institutions and for-profit companies are moving to patent the commercial aspects of this new area in a land grab which could see rights holders reap future benefits
  • ARTICLE: Patents and the fourth industrial revolution
    The fourth industrial revolution promises to have a profound effect on almost every economic sector. Patent offices around the world must evolve to keep pace with the rate of change and to support the development of new innovations

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