Does a company that provides software perform a service that supports a service mark? In today’s technology-driven markets, this question is raised with increased frequency. The Federal Circuit Court of Appeals’ recent decision in In re JobDiva, Inc. delivered good news to companies using this business model, although it also cited a caveat.
Congress just gave trade secret owners a new way to defend their secret sauce. The Defend Trade Secrets Act (DTSA) was signed into law on May 11. An extension of the federal Economic Espionage Act, DTSA allows trade secret owners to bring a civil action in U.S. district court seeking relief for trade secret theft, also known as misappropriation.
Patent law has recently undergone significant reform with the enactment of the America Invents Act (AIA). One such reform improves the value proposition of trade secrets. Before the AIA, an accused infringer who had practiced a patented invention in secret for many years prior to the patentee’s filing date could not rely on a so-called “prior user right,” unless the patent was for a so-called “business method.” Under the AIA, prior user rights have been extended to any technology. Having a robust trade secret, and practicing that trade secret prior to later patenting by another can provide an invaluable affirmative defense to patent infringement charges through prior user rights.