The End of 2021

Top Expected Intellectual Property Trends for 2022

As we exit another unprecedented year, we still remain cautiously hopeful for our future. In preparation for the new year, we curated a list of expected IP Trends for 2022 that you and your business should keep in mind to stay ahead of the curve.

1. E-Commerce Growth Increases Need for Federal and International Trademarks

As businesses establish an online presence, local trademarks are insufficient in protecting your company’s identity. Even more importantly, online IP commerce enforcement is a top concern in the fight against counterfeit products.

2. As the Number of Trademark Lawsuits Increase, Trademark Clearance Becomes More Necessary

Before investing time, money, and resources into developing a brand, you can avoid potential legal issues by conducting clearance searches for any and all branding ideas.

3. Emphasis on Design Patents

Design patents have been overlooked as an opportunity to provide legal protection, especially when paired with utility patents. While they may be more susceptible to being challenged as invalid, they undoubtedly make it easier than ever to prove infringement.

4. IP Provisions in Employment Agreements

Intellectual Property provisions and clauses need to be clear and confusion-free to avoid any future conflicts. This is more necessary than ever as companies hire independent contractors or as employees work from home, blurring the line between home and work developments.

5. Emphasis on New Technologies, such as Blockchain, Crypto, and NFT’s

New technologies are not only recognizing the importance of IP protection, but they may also be in effect redefining the way IP protection or IP contracts are handled in the future. For example, as non fungible tokens (NFTs) are gaining popularity, new questions may soon arise as the lines of “ownership” become less clear. We will see how the courts navigate these new technologies.

6. The Alice Decision Remains In Question

As many know, the ruling in Alice Corp. v. CLS Bank International severely restricted which software-related inventions qualify for patent protection. Over seven years later, this decision is still causing conflict, and we will see if the Supreme Court will further clarify the rules of Alice or if the confusion will only get worse.


The USPTO Goes Digital

Takeaway: As technology advances, trademark registration certificates are no longer issued in paper form.

Due to increasing customer demand, the United States Patent and Trademark Office (USPTO) has opted to issue trademark registration certificates digitally. The change from paper certificates to digital certificates will be implemented in the upcoming year. Moving forward, trademark owners will still be able to request paper certificates, but this service will require an additional fee.

The USPTO will have the digital registration certificates accessible via the Trademark Status & Document Retrieval system. Emails containing access links will be sent to trademark owners. The benefits of this change will not only allow greater accessibility to trademark certificates but will also reduce the certificate retrieval speed for trademark applicants.


Wendy’s Trademark Conflict In Europe

Takeaway: Despite U.S. fast food restaurant Wendy’s popularity across the world, the chain’s trademark issues are causing problems in Europe.

A Dutch snack bar named Wendy’s won a trademark battle against the large American fast food chain Wendy’s, upholding that the small snack shop had trademark rights specifically in the Netherlands, Belgium and Luxembourg. The Dutch court’s ruling against the U.S. fast food chain is causing its expansion in those countries to be halted.

According to the restaurant chain, they have no objection against the snack bar. Instead, the snack bar company “objects to us registering and using our WENDY’S name as a trademark for our restaurants.” More specifically, the snack shop’s only location is in the Netherlands, but it still maintains its trademarks in Belgium and Luxembourg. We expect Wendy’s will appeal.


Drug Patents Invalidated For Not Adequately Describing Inventions

Takeaway: It is more important than ever to review patent applications during research and development to ensure that the key invention is fully covered.

The U.S. Court of Appeals for the Federal Circuit recently invalidated two separate pharmaceutical patents (Indivior’s opioid addiction treatment Suboxone and Biogen’s multiple sclerosis drug Tecfidera) for not meeting the requirement that patents must have a “written description showing the inventor possessed the invention as of the filing date.” The Federal Circuit said the law requires “a statement of an invention, not an invitation to go on a hunting expedition.”

In the Indivior case, the patent described the invention as a film, approximately 40%-60% of which is a water-soluble polymeric matrix. The Federal Circuit said that specific range was not found in the original patent application, which opted to use phrases such as “at least 25%.”

In the Biogen case, the patent claims describe treating multiple sclerosis (MS) with 480 mg of a specific drug, but the Federal Circuit similarly said that dose was not adequately described. The court found that while a “single passing reference” to that number was included in the written description, it was a part of a wide range of doses that did not indicate that 480 mg was the effective dose.


Moderna Loses IP Fight Against Arbutus Biopharm

Takeaway: “Standing” may be an issue when protecting your intellectual property rights.

Moderna has lost its patent battle against Arbutus Biopharma over its vaccine delivery technology, after the Federal Circuit ruled that Moderna lacked standing in one case. To lack standing is to not have the legal right to initiate a lawsuit or to not be sufficiently affected by the matter at hand.

Part of the Federal Circuit’s reasoning was that Moderna had not developed the COVID-19 vaccine at the time of the appeal. Furthermore, in the first of two precedential opinions, a three-person judge panel upheld the U.S. Patent Trial and Appeal Board’s invalidation of an Arbutus patent, U.S. Patent No. 9,364,435, as anticipated but not obvious.

Moderna fired back that its vaccine did not practice the claims of the Arbutus patent, but that it had standing due to the financial impact of the patent’s validity on its sublicensing obligations with Acuitas Biotherapeutics.


Cislo & Thomas LLP Spotlight

Peter Veregge, Esq. | Expert and Litigator

This month’s spotlight features Cislo & Thomas Partner Peter Veregge.

Peter has been practicing law for over 32 years, with over 16 of those years at Cislo & Thomas. With his background in geological sciences, Peter spent a few years working as an environmental geologist, followed by a 10-year career in environmental law.

In 2000, Peter made the transition to intellectual property law, which has been his sole practice ever since.
Peter has extensive hands-on experience in litigating all aspects of patent, trademark, trade dress, trade secret, and copyright cases, as well as general litigation, in both state and federal courts, as well as opposition proceedings before the Trademark Trial and Appeal Board. He is also experienced in analyzing and procuring patents in the mechanical, medical, and electrical arts. Peter also assists clients in obtaining trademark and copyright registrations.

When he’s not working hard to help his clients protect their IP rights, he enjoys hiking, traveling, and spending quality time with his wife and two sons.


Enjoy keeping up with IP news?

Check out our Weekly IP Takeaways from Attorney Mark D. Nielsen, Esq. on our LinkedIn Page here!