Post-grant proceedings are administrative trials conducted after a patent has been granted, allowing third parties to challenge the validity of the patent. These proceedings are conducted by the Patent Trial and Appeal Board (PTAB), an adjudicatory body within the United States Patent and Trademark Office (USPTO). The PTAB oversees various types of trials, including inter partes reviews (IPRs), post-grant reviews (PGRs), and covered business method (CBM) reviews.

In 2024, the PTAB implemented several key changes to improve the efficiency and fairness of post-grant proceedings. These changes are designed to boost confidence in the protection and enforcement of IP rights, ensuring innovations are better safeguarded.

What is the Purpose of a Post-Grant Proceeding?

Post-grant proceedings provide a mechanism for third parties to challenge the validity of a patent on any ground that could be raised under the patent statute. These proceedings are generally faster and less expensive than litigation in federal court. The most common types of post-grant proceedings are:

• Inter Partes Review (IPR)—Challenges the validity of a patent based on prior art consisting of patents and printed publications.
• Post-Grant Review (PGR)—Allows for a broader range of challenges, including issues of novelty, non-obviousness, written description, enablement, and indefiniteness.
• Covered Business Method (CBM) Review—Focuses on patents related to financial products or services.

Key Changes

1. Streamlined Procedures—The PTAB streamlined its procedures to reduce the time and cost associated with post-grant proceedings. This included simplifying the petition filing process and expediting the review timeline.
2. Enhanced Transparency—The PTAB enhanced transparency by providing more detailed explanations for its decisions and making its processes more accessible to the public.
3. Increased Flexibility—The PTAB introduced more flexible rules to accommodate the diverse needs of patent owners and challengers. This included allowing for more opportunities to amend claims during proceedings.
4. Improved Case Management—The PTAB implemented better case management practices to ensure that proceedings were handled efficiently and fairly. This included assigning dedicated panels of judges to specific cases and providing more guidance to parties involved in the proceedings.

Strategies for IP Owners and Representatives

To navigate the recent PTAB changes effectively, Ludwig APC suggests that IP owners and their representatives adopt these key practices:

• Stay Updated—Continuously review PTAB announcements and updates to stay informed about the latest changes and developments.
• Strategic Planning—Develop comprehensive strategies that leverage the new streamlined procedures and flexibility. This includes meticulous preparation of petitions and responses to enhance chances of success.
• Engage in Advocacy—Participate in discussions and advocacy efforts to shape future policy changes and ensure IP owner and client interests are represented.
• Invest in Education—Invest in ongoing education and training both for legal teams and clients, and/or work with expert third parties to ensure everyone is up to date on the latest rules and best practices.
• Strengthen Collaboration—Enhance collaboration with legal teams, clients, and experts to gather all necessary information and present it effectively. This includes thorough prior art searches and robust arguments for claim amendments.
• Utilize Technology—Leverage technology and software to conduct research, manage cases more efficiently, and stay organized throughout any proceedings.

Let’s Work Together: Global Experience, Personal Focus

By staying proactive and informed, IP owners and their representatives can navigate the new PTAB proceedings and processes effectively to ensure their innovations are well protected. Contact Ludwig APC today to arrange a free consultation at (619) 929-0873 or consultation@ludwigiplaw.com.

The rapid advancement of generative Artificial Intelligence (AI) is revolutionizing content creation, but it’s also raising complex legal questions. As AI-generated content becomes more prevalent, intellectual property owners, creators, and their representatives must navigate an ever-evolving legal landscape to protect their rights and stay ahead of emerging challenges.

Whose Copyright Is It?

Traditional copyright law is built on the principle that only works created by humans are protected. However, generative AI blurs this line by producing original content autonomously. This raises the question: can AI-generated works be copyrighted, and if so, who owns them—the creator of the AI or the user who initiated the process?

Recent Legal Challenges and Lawsuits

In 2023 and 2024, several media companies filed lawsuits against OpenAI and others, alleging copyright infringement for using their content to train AI models without permission.

• The New York Times filed a lawsuit against OpenAI and Microsoft in December 2023, alleging that “widescale copying” by their AI systems constituted copyright infringement. The case is ongoing, and the court’s decision could have significant implications for the use of copyrighted content in AI training.
• Similarly, Intercept Media Inc. filed a lawsuit against OpenAI in February 2024, alleging that OpenAI used the work of their journalists to train ChatGPT without permission or proper attribution. The court rejected OpenAI’s bid to dismiss the lawsuit, which has allowed the case to proceed as of November 2024. 
• In November 2024, the news agency Asian News International (ANI) sued OpenAI for using its original news content in an unauthorized manner, potentially becoming the first Indian publisher to take legal action against an AI company for violating its intellectual property rights.

Regulatory Responses

In addition to court action, governments and regulatory bodies are beginning to respond to these challenges. The U.S. Copyright Office, for example, launched a comprehensive initiative in 2023-24 to examine the impact of generative AI on copyright law. The initiative aims to provide guidance on issues such as the copyrightability of AI-generated works, licensing considerations, and liability issues.

In addition, the Congressional Research Service (CRS) published a report titled “Artificial Intelligence and Copyright Law: A Primer” in May 2023. This report explores how copyright law principles such as authorship, infringement, and fair use apply to AI-generated content. Insights and key takeaways include:

• Fair Use for AI Training—explores whether using copyrighted content to train AI models falls under fair use, considering factors such as the purpose, nature, and amount of content used.
• Authorship—emphasizes that copyright protection requires human authorship, meaning AI-generated content alone cannot be copyrighted unless a human significantly contributes to its creation.
• Liability—addresses potential liability issues, such as who would be responsible if an AI-generated work infringes on existing copyrights.

On March 16, 2023, the U.S. Copyright Office published a statement of policy in the Federal Register, providing guidance on the registration of works containing AI-generated material. The policy clarifies that AI-generated content, on its own, cannot be copyrighted, but if a human has significantly contributed to the creation of the content, they may claim copyright as a joint author.

The Future of AI and Copyright

As AI technology continues to evolve, so will the legal frameworks that govern it. IP owners and their representatives must stay informed about these changes and adapt their strategies accordingly. This may involve seeking legal advice, exploring licensing agreements, and advocating for clear and fair regulations that balance innovation with the protection of creator (and owner) rights.

While the future of copyright in AI-generated content is still being written, Ludwig APC remains vigilant and proactive in helping our clients understand their rights and ensure their creations are protected in this new era of AI-generated content.

Let’s Work Together: Global Experience, Personal Focus

Contact Ludwig APC today to arrange a free consultation at (619) 929-0873 or consultation@ludwigiplaw.com.

Trademarks and brand identity are crucial assets for both companies and individuals. They are unique identifiers that embody your promise of consistent quality, trust, and value to your customers, distinguishing a company’s products or services from competitors. They build trust, distinguish your products or services from competitors, and foster customer loyalty.

Protecting your brand identity and trademarks from digital threats like counterfeiting and impersonation is crucial for maintaining brand integrity, market positioning, and ensuring long-term success and resilience. The digital marketplace, with its unparalleled reach and convenience, presents new and evolving challenges for safeguarding these assets.

Ludwig APC works with brand owners, trademark holders, and other intellectual property owners to navigate these challenges.

Online Counterfeiting

Online brand counterfeiting is one of the biggest threats to brand protection. Counterfeit products not only dilute a brand’s value but also pose significant risks to consumer trust and safety. For example, imagine you buy a trusted brand’s high-end skincare product online, only to discover it’s counterfeit. Instead of the promised benefits you’ve come to expect, you end up with skin irritation or worse. This experience not only damages consumer trust in the brand but also poses significant health risks.

Here are a few strategies to combat this issue:

• Monitoring and Enforcement—Advanced monitoring tools can scan online marketplaces, social media platforms, and websites for counterfeit listings. Partnering with specialized firms can enhance a brand’s ability to detect and take down counterfeit goods quickly.
• Legal Action—Issuing cease-and-desist letters and pursuing legal action when necessary helps deter counterfeiters. Registering trademarks and patents bolsters a brand’s legal position, ensuring stronger protection against infringement.
• Consumer Education—Brands can educate customers on how to identify genuine products and encourage them to report suspicious activities. This builds awareness of the issue and reinforces a brand’s commitment to its customers.

Brand Impersonation

Brand impersonation occurs when malicious actors create fake profiles or websites that mimic a particular brand. This can lead to phishing attacks, fraud, and reputational damage.

Imagine you’re a customer who believes you’re purchasing an exclusive piece from a luxury brand’s official website, only to later realize you bought it from a cleverly disguised fake site. Not only do you receive a subpar product, but the fake site now has your credit card information and other personal details. This leads to lost sales for the genuine brand as customers are diverted to the counterfeit site, eroding consumer confidence. The potential for identity theft or credit card fraud further harms both the customer and the brand’s reputation.

Here are a few strategies for safeguarding against brand impersonation:

• Social Media Vigilance—Regularly monitoring social media platforms can reveal fake profiles and impostor accounts. Many platforms provide reporting tools which can assist with the removal of fraudulent profiles.
• Authentication Measures—Two-factor authentication and other security measures for official websites, including customer accounts, and your social media accounts can prevent unauthorized access.
• Clear Communication—Educating your customers about using only official channels and encouraging them to verify the authenticity of various accounts and emails before engaging can help mitigate the issue.

Domain Name Disputes

Domain name disputes arise when third parties register domain names similar to your brand, often to divert traffic or extort money. For example, let’s say your brand is called “SuperWidget” and your official domain is SuperWidget.com. An opportunist registers domains like SuperWidget.co or SuperWidgetShop.com. They set up a similar-looking website to yours, which can mislead your customers into thinking they’re on your official site. There, customers might buy products or enter sensitive information. Meanwhile, the fraudulent site collects payments without delivering real products, or worse, uses the personal data for identity theft.

To extort money, this opportunist might contact you, offering to sell you the domain at a high price, knowing it’s valuable to your brand’s online presence. This forces you to either pay up or risk losing traffic and credibility.

Here are some strategies for proactive domain name registration and vigilant monitoring.

• Register Variations—Registering variations of your domain name, including common misspellings and different top-level domains can help prevent cybersquatting (when someone registers a domain name similar to a well-known brand or trademark with the intent to profit from that brand’s reputation).
• UDRP Process—The Uniform Domain-Name Dispute-Resolution Policy can help resolve disputes with domain squatters. This legal process can help brands reclaim domains that infringe on their trademarks.
• Trademark Registration—Registering trademarks with domain name registries that offer additional protections, such as the Trademark Clearinghouse, can help prevent the registration of domains that match your trademark.

Ludwig APC Can Help

Brand protection in the digital age clearly requires a multifaceted approach and vigilance. Investing in robust monitoring tools, enforcing your legal rights, and educating your customers are essential strategies for maintaining a strong and trusted brand presence. Additionally, partnering with an experienced IP law firm like Ludwig APC can further bolster your brand protection efforts. Our expertise in navigating complex legal landscapes makes us a trusted partner and advisor who can help you take the necessary steps to shield your brand from digital threats and defend against infringement and misuse.

Let’s Work Together: Global Experience, Personal Focus

Contact Ludwig APC today to arrange a free consultation at (619) 929-0873 or consultation@ludwigiplaw.com.

Several recent groundbreaking advancements in biotechnology, particularly in CRISPR (Clustered Regularly Interspaced Short Palindromic Repeats) gene editing and personalized medicine, have significantly impacted patent law. Ludwig APC is closely monitoring real-world events and legal decisions to address how these developments might impact current (and future) clients. By providing strategic advice on patent applications and defending against infringement claims, we hope to protect biotechnological innovation as well client intellectual property rights.

CRISPR Gene Editing: A Paradigm Shift

CRISPR technology has revolutionized the field of genetic engineering. The approval this year of CRISPR-based therapies, such as Casgevy for sickle cell disease and transfusion-dependent beta thalassemia, marked a significant milestone. This approval not only demonstrated the therapeutic potential of CRISPR but also raised important questions about patent law.

To put it mildly, the patent landscape for CRISPR technology has been contentious. The Broad Institute and the University of California have been embroiled in a long-standing dispute over the rights to CRISPR-Cas9 technology. In a recent ruling, the U.S. Patent and Trademark Office (USPTO) sided with the Broad Institute, affirming their claim to the technology for use in animal cells. This decision has far-reaching implications for licensing agreements and the commercialization of CRISPR-based therapies.

The rapid development and commercialization of CRISPR therapies have also highlighted the need for a robust patent framework that balances innovation with accessibility. As more CRISPR-based treatments enter the market, patent holders must navigate the ethical and legal challenges of ensuring these therapies are accessible to patients worldwide, particularly in low-income regions where diseases like sickle cell are prevalent.

Personalized Medicine: Tailoring Treatments to Individuals

Personalized medicine, which tailors medical treatments to individual genetic profiles, has also seen significant advancements in 2024. Various approaches promise more effective and targeted therapies, but also present unique challenges for patent law.

One of the key issues in personalized medicine is the patentability of diagnostic methods and biomarkers. The U.S. Supreme Court’s decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc. (2012) set a precedent that natural laws and abstract ideas are not patentable. This ruling has made it difficult to secure patents for diagnostic methods that rely on natural correlations between genetic markers and disease.

However, recent developments in personalized medicine have prompted a reevaluation of this stance. Most recently, the USPTO issued new guidelines that provide clearer criteria for patenting diagnostic methods involving significant human intervention and technical innovation. These guidelines aim to strike a balance between encouraging innovation and preventing the monopolization of fundamental scientific principles.

The sudden rise of personalized medicine also underscores the importance of data privacy and security, an area of focus near and dear to Eric Ludwig, Ludwig APC’s principal. As companies collect and analyze vast amounts of genetic data, they must navigate complex legal frameworks to protect patient privacy while leveraging this data for innovation. Thus, patent law must evolve to address these challenges, ensuring that innovations in personalized medicine are both legally protected and ethically sound.

Patentability of Biotechnological Innovations

The patentability of biotechnological innovations has always been a complex and hard-to-pin down issue. In 2024, several key advances have shaped the landscape of biotechnology patents.

One significant development is the increasing recognition of the ethical implications of patenting biotechnological inventions. The European Patent Office (EPO) took a proactive stance when it emphasized the need to balance innovation with ethical considerations. In a recent decision, the EPO rejected a patent application for a genetically modified organism on the grounds that it violated ethical principles. This decision reflected a growing trend towards incorporating ethical considerations into patent law.

Another important development is the rise of synthetic biology, which involves designing and constructing new biological parts and systems. The patentability of synthetic biology inventions has been a topic of debate, with some arguing that these inventions should be treated as patentable subject matter, while others contend that they fall under the category of natural phenomena.

As biotechnological inventions are often developed and commercialized across multiple jurisdictions, inconsistencies in patent laws around the world can create barriers to innovation. In response, several international organizations, including the World Intellectual Property Organization (WIPO), have initiated efforts to harmonize patent laws and streamline the patent application process for biotechnological inventions.

The Road Ahead

Developments in biotechnology in the last few years have had a profound impact on patent law. The approval of CRISPR-based therapies, advancements in personalized medicine, and the evolving landscape of biotechnological patents underscore the need for a dynamic and adaptable patent framework.

Ludwig APC continues to help clients navigate and monitor the rapidly changing legal landscape of biotechnology patents. We are of the opinion that patent law must evolve to address the unique challenges and opportunities inherent to this field, firmly believing that by striking a balance between encouraging innovation and ensuring accessibility, patent law can play a crucial role in shaping the future of biotechnology.

Let’s Work Together: Global Experience, Personal Focus

Contact Ludwig APC today to arrange a free consultation at (619) 929-0873 or consultation@ludwigiplaw.com.