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Brexit whitepaper hints at unitary patent future

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Latest News EFF comments on eligibility Legislative reform in the wake of the Alice Corp v CLS Bank decision is not merited, but clearer guidance from the US Patent and Trademark Office (USPTO) as to its application is, according to the Electronic Frontier Foundation (EFF). The EFF has submitted comments to the USPTO on potential legislative changes related to patent subject matter eligibility and the Alice decision. Responding to the USPTO’s request for comment, which was issued late last year as the agency considers updates to its 2015 subject matter eligibility guidelines, the EFF said: “Evidence regarding the performance of software companies, employment growth for developers, and R&D spending on software all show a thriving sector.” “Under Alice, courts and the Patent Trial and Appeal Board have invalidated many abstract software patents that had no value except as litigation weapons.” “Far from harming the software industry, Alice has allowed the industry to thrive.” The EFF did offer some advice for how the USPTO can improve its guidance on patent eligibility for software-related applications. The USPTO must give not only give weight to rulings that find claims eligible, but also to those that find them ineligible. Bristol-Myers and Ono settle with Merck for $625 million Bristol-Myers Squibb and Ono Pharmaceutical have secured a $625 million settlement and ongoing royalties from Merck & Co over the PD-1 antibody Keytruda (pembrolizumab). The agreement will result in the dismissal of all patent litigation over the cancer drug Keytruda. Bristol-Myers Squibb and Ono, which discovered and developed the PD-1 antibody Opdivo (nivolumab), had alleged in litigation that Merck’s sale of Keytruda infringed their patents covering the use of PD-1 antibodies to treat cancer in the US, the UK, the Netherlands, France, Germany, Ireland, Spain, Switzerland, Australia, and Japan. Merck will make an initial payment of $625 million to Bristol-Myers and Ono, as well ongoing royalties from global sales of Keytruda beginning 1 January 2017 through to 31 December 2026. The royalties will be split 75 percent/25 percent between Bristol-Myers and Ono. Giovanni Caforio, CEO at Bristol-Myers, said: “Bristol-Myers Squibb and Ono’s agreement with Merck protects our scientific discoveries and validates the strong intellectual property rights we secured as the early innovators in the science of PD-1. Today’s agreement is also a good decision for patients as it supports the continuation of ongoing research and maintains access to anti-PD-1 therapies for cancer patients around the world.” The USPTO should also “clearly explain that Alice effectively overruled earlier decisions such as In Re Alappat, that held that any specially programmed general purpose computer was patent eligible”. “The USPTO must effectively communicate this change in the law to ensure that Alice is properly applied.” “We urge the USPTO to adopt guidance that explains how Alice changed the law of patent eligibility,” the EFF said. IP5 PPH programme extended The IP5 Patent Prosecution Highway (PPH) programme has been extended for a further three years. The agreement was scheduled to expire on 5 January, but the five members of the IP5, China’s State Intellectual Property Office, the European Patent Office, the Japan Patent Office, the Korean IP Office and the US Patent and Trademark Office, have agreed to extend the programme. 8

Latest News The IP5 PPH programme was launched on 6 January 2014 and allows all members to fast-track patent examination procedures if a patent has already been granted at a participating office. It allows applicants to obtain corresponding patents worldwide faster and more efficiently. The IP5 offices handle around 80 percent of the world’s patent applications and 95 percent of work carried out under the Patent Cooperation Treaty. Paragon acquires Novagraaf stake Private equity firm Paragon Partners has bought a majority stake in international patent and trademark consultancy Novagraaf. Novagraaf said the investment represents a major endorsement of its plans to grow its business by “investing further into its people, services and technologies, while meeting the changing needs of its global customer base”. Lutgarde Liezenberg, CEO of Novagraaf, said: “This investment endorses our strategy to meet ever-changing market requirements by investing in our people and technology to provide world-class IP services.” “We are proud that Paragon supports our vision for growth, and we look forward to working with them to continue to deliver value-added innovative services across the entire IP lifecycle to all our customers.” Houlihan Lokey acquires Black Stone IP She added: “We would also like to thank Gilde for being a very reliable and loyal partner to Novagraaf. Thanks to their professional contribution, we have been able to build a truly unique, leading IP services platform in Europe.” Netflix’s offline mode goes to court Netflix has been accused of patent infringement following the release of its watch offline feature. Patent licensing company Blackbird Tech filed the patent infringement complaint in the US District Court for the District of Delaware on 1 February. Netflix infringed the patent for a method and system of supplying products from prestored digital data in response to demands transmitted via computer network, according to Blackbird. The company alleged that Netflix has “directly infringed and continues to infringe” the patent through its new download feature and offline mode. Houlihan Lokey has acquired boutique investment bank Black Stone IP. Black Stone focuses on tech and IP advisory, including valuations, strategic IP transactions and IP-backed capital formation and restructuring. Elvir Causevic, CEO of Black Stone IP, said: “We believe that Houlihan Lokey has the best combination of global footprint, complementary services, and corporate culture of any independent advisory firm in financial services.” “The firm’s longtime leadership in valuation services and mergers and acquisitions, along with its deep expertise in illiquid financial assets across industry sectors, provides a powerful combination from which our clients will derive an immediate benefit. We are extremely excited about this next phase of our growth as we join Houlihan Lokey’s extensive platform.” Houlhian Lokey’s new tech and IP advisory practice will be co-led by Causevic. Other members of Black Stone’s senior leadership will join Houlihan Lokey, including Mitchell Rosenfield, Pallavi Shah and Matt Moyers. Jack Berka, global head of financial advisory services at Houlihan Lokey, said: “Intellectual property is increasingly regarded as an asset class deserving the attention of boards and investors across many industry sectors, and companies are recognising that significant value exists in these assets.” “Black Stone has honed best practices from industry leaders to establish a leading tech and IP platform comprising valuation and transaction advisory.” “As such, they are a perfect fit with Houlihan Lokey’s market-leading valuation, corporate finance, and restructuring services.” 9

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