For those of you who may have lost hope regarding the patentability of personalized medicine discoveries, here’s some encouragement. Recently the Federal Circuit affirmed the validity of a patent directed to a method of treating schizophrenia, which is based on genetic testing of the patient. Vanda Pharms. Inc. v. West-Ward Pharms. Int’l Ltd., Nos. 2016-2707, 2016-2708, 2018 WL 1770273, —F.3d — (Fed. Cir. Apr. 13, 2018). The Court found that the claims of U.S. Patent No. 8,586,610 were patent eligible and not drawn to a law of nature under 35 U.S.C. § 101. Claim 1 is representative and is shown below: Continue Reading Personalized Medicine Patents: Federal Circuit Gives Personalized Medicine Patents a Shot In The Arm
For Husch Blackwell’s Northwestern University grad school alums, Laura Labeots (Ph.D. 1992) and Ed Gamson (Ph.D. 1970), it was a huge thrill to learn that one of their own, a fellow chemist from Northwestern, had won the 2016 Nobel Prize in Chemistry last week. Sir J. Fraser Stoddart, who specializes in Nanotechnology, will be awarded the Nobel this December in Stockholm, Sweden, for his groundbreaking work on “molecular machines.” He and his group have devised molecules that remarkably can do mechanical work, such as lifting and moving other small molecules. Continue Reading Husch Blackwell attorneys celebrate Nobel Prize winner
An entrepreneurial company may face an early decision as to how it can afford to develop new technology, particularly new technology that does not fit within the technical specialties of that entity. Whether a new company needs to develop a new website, new software, or a compatible piece of technology, that company might consider entering into a contractual alliance with another party to develop that technology. Continue Reading Let’s Stay Together: Negotiating a Successful Joint Technology Development Agreement
Healthcare is a highly competitive market. Healthcare companies are hiring marketing teams to lure customers to their facility. This will invariably require making statements regarding the quality of your services and how your services are better than your competitors. Problems will arise if these ads cause patients or their families to expect more than what is or even can be offered. There are many scenarios that could result in claims of false advertising under §43(a) of the Lanham Act. In addition, the Federal Trade Commission (FTC) and the National Advertising Division (NAD) of the Council of Better Business Bureaus have guidelines for what companies may include within their marketing programs. Today, however, we will be looking at “puffery.” Continue Reading Branding 101 – Should puffery be avoided in healthcare advertising?
In one of our first posts, we discussed the five categories of trademarks (Generic – Descriptive – Suggestive – Arbitrary – Fanciful) and how a mark became more protectable as it moved up the line. Laudatory trademarks, trademarks that attribute a quality or excellence to the goods or services, are often included in this list as “descriptive marks” requiring a showing of secondary meaning to be protectable. However, it has been recognized that some laudatory marks do not describe any feature of the product it is used with, but rather suggest that the product is of high quality or “better” quality than other similar products. In these cases, the laudatory composite mark may be considered to be suggestive. Continue Reading Branding 101 – Laudatory Trademarks: Are they worth the effort?
This week we are discussing ways you can use a third party’s mark to identify the third party’s goods or services while also advertising your own. For example, a dental office wants to let potential patients know that it uses a specific brand of dental veneers. The law allows XYZ Dental to factually state:
“XYZ Dental specializes in the fitting and application of ABC® brand veneers.”
This type of use is known as nominative fair use and as with comparative advertising and descriptive fair use, there are rules that need to be followed. Continue Reading Branding 101: Nominative Fair Use
Last week we discussed ways that you can use a competitor’s mark in comparative advertising. This week we will discuss use of a mark in a descriptive manner such that it is not being used as a trademark, thereby greatly reducing, if not eliminating, the possibility of the use being found to be trademark infringement. Continue Reading Branding 101 – Trademark Descriptive Fair Use
As we discussed previously, a Trademark Audit is an important inventory tool that should be used to be sure that the trademark assets of the company are being properly used and protected. Another important function of a Trademark Audit is to be sure that you are using only your own trademarks; or, if you are using your competitors’ marks that such use is correct and proper. Continue Reading Branding 101 – Trademark Audit: Evaluating Comparative Advertising
We have talked about why it is important to use your trademark consistently. The easiest way to be sure that everyone in your organization knows the proper way to use the company’s trademarks is to create and distribute a trademark usage manual. The trademark usage manual should include easy to follow guidelines setting out that the mark is to be used as an adjective and not a noun, as well as the proper font, colors etc. that should be used to depict the mark. The usage manual does not need to be a complex or confusing document. It should be a straightforward listing of the acceptable ways that the company’s trademark should be used. Continue Reading Branding 101: Trademark Usage Manuals
In our companion post we are talking about the importance of using your trademarks in a consistent manner. This consistency helps consumers know that when they see KalmKap that it identifies a product coming from a single company and that they can trust that the quality is the same as the last time they bought the product. Consistent use helps to identify your mark as being owned by you. Another way identify your marks as belonging to you is use the recognized trademark symbols and to make appropriate attribution statements somewhere within your ads. Continue Reading Branding 101 – Proper use of trademark symbols and attribution statements