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PTAB Proposal on Claim Construction Would Align with Federal Courts, ITC

Intellectual Property
05/30/2018 - By: Lauren Schneider

In the aftermath of the Oil States and SAS Supreme Court decisions, the PTO’s proposal to adopt the Phillips standard for claim construction brings a small measure of relief for universities and research institutions.  The “broadest reasonable interpretation” claim construction standard currently used by the PTAB in deciding IPRs may open the instituted claims to challenge by a larger body of …

SAS Decision Could Have Chilling Effect on University Licensing

Intellectual Property
05/25/2018 - By: Lauren Schneider

The Supreme Court’s decision in SAS Institute v. Iancu represents yet another blow to patent owners, but is an especially troublesome complication for universities and research institutions trying to generate licensing revenue. As obtaining a decision of invalidity may be easier in an inter partes review (IPR) in front of the Patent Trial and Appeal Board (PTAB) than …

New Appeals Process for Challenging Administrative Decisions Made by State Agencies in Arizona

Energy & Natural Resources
05/24/2018 - By: Marla Hudgens

On April 11, 2018, Arizona Governor Doug Ducey signed into law HB 2238. The Bill clarifies the appellate landscape for individuals and businesses challenging administrative decisions made by state agencies. In our blog post from May 7, 2017, we foreshadowed the legislation: To recap, under federal law, if a statute or statutory term is …

Colorado Energy and Utilities Legislation

Energy & Natural Resources

Winners and Losers in the 2018 Colorado General Assembly The warm weather has returned, spring sports are in full swing, and the Colorado General Assembly has adjourned for 2018. That means it’s time to take a look at the scorecard and review the energy and utilities related issues that won and lost this legislative season. …

EPA Seeks Overhaul of Ozone NAAQS

Energy & Natural Resources
05/16/2018 - By: Dietrich Hoefner

EPA Administrator Scott Pruitt issued a memorandum on May 9th that directs the agency’s staff to begin a five-year review of the National Ambient Air Quality Standards (NAAQS) for Ozone. The Clean Air Act (CAA) requires EPA to periodically review the NAAQS, including both primary and secondary standards, for criteria air pollutants such as ozone …

Court of Appeals Confirms that Arizona Constitution Authorizes Arizona Corporation Commission to Determine Energy Rates

Energy & Natural Resources
05/11/2018 - By: Gregory Harris

Court of Appeals Confirms that Arizona Constitution Authorizes Arizona Corporation Commission to Determine Energy Rates The Arizona Constitution requires that the Arizona Corporation Commission (“Commission”) approve just and reasonable rates, the determination of which is to be evaluated by the Commission. In Freeport Minerals Corporation v. Arizona Corporation Commission, the Court of Appeals upheld rates …

53rd Arizona Legislature – Highlights

Energy & Natural Resources
05/07/2018 - By: Gregory Harris

Early on the morning of May 4, the Arizona Legislature adjourned the Second Regular Session of the 53rd Legislature. No discussion of the work of the recently completed session would be complete without addressing education, education funding and engagement by virtually the entire legislative community.  The Chamber of Commerce, the Governor, the movement, the Legislature, all …

Changes Proposed to Research and Data Used by EPA

Energy & Natural Resources
05/03/2018 - By: Carla Consoli

As recently reported in a number of news outlets, Environmental Protection Agency (EPA) Administrator Scott Pruitt has proposed a rule within the EPA that would require the Agency to use research that is publicly available in promulgating new rules alleged to be “scientifically-based.”  This could be an important change to every company over which EPA …

The Value of Goodwill in Trademarks

Intellectual Property
05/03/2018 - By: Emily Bayton

Consumers use brands to make choices, demonstrate loyalty and determine value. A brand’s ultimate goal, from a company perspective, is to accelerate growth and generate value (i.e., goodwill). But what is “goodwill” as it relates to trademarks – how is it tied to trademark selection and does it affect licensing, acquisitions and litigation? Intellectual Property …

Climbing Wall Industry Reaching New Heights Ahead of Annual Summit

Sports & Outdoor Recreation
04/30/2018 - By: Marla Hudgens

The annual Climbing Wall Association (“CWA”) Summit in Loveland, Colorado, kicks off the week of May 14, 2018, with pre-conferences leading up to the premier trade show for the indoor climbing industry on May 17-18th. This show will unlock endless opportunities for indoor rock climbing gyms, product manufacturers, recreation centers and other industry players to …

Arizona Water Permitting Process Updated

Energy & Natural Resources
04/27/2018 - By: Stanley Lutz

Governor Ducey recently signed two bills passed by the Arizona legislature dealing with water quality programs. The first, SB1494 requires the Arizona Department of Environmental Quality (ADEQ) to establish an Underground Injection Control (UIC) Permit program. In doing so, the State will assume primacy for UIC permitting under the Safe Drinking Water Act. The ADEQ attempted …

Are You Ready for the General Data Protection Regulation (GDPR)?

Intellectual Property
04/19/2018 - By: Terry Ahearn, D. Stuart Bartow

The impact will be significant and yes, U.S. businesses will be impacted. GDPR will impact any U.S. company that has a web presence and markets their goods or services to European markets. A recent study by the International Association of Privacy Professionals indicated that Fortune’s Global 500 will spend roughly €7.8 billion to implement GDPR. IAPP also estimates that …

A Friend of the Outdoors: Colorado Governor Hints at Possible Presidential Run

Sports & Outdoor Recreation
04/18/2018 - By: Emily Bayton

Hints on a possible presidential run by Colorado Gov. John Hickenlooper could boost attention for outdoor-industry issues in the 2020 campaign. Hickenlooper was in Washington, D.C., on Tuesday to accept the annual “Friend of the Outdoor Industry Award” during the Outdoor Industry Association’s (OIA) annual Capitol Summit and hinted at a possible 2020 presidential run. …

EPA Centralizes Responsibility for Clean Water Act Jurisdictional Determinations

Energy & Natural Resources
04/10/2018 - By: Dietrich Hoefner

On March 30, 2018, EPA Administrator Scott Pruitt issued a memorandum and delegation of authority that move responsibility for the EPA’s role in Clean Water Act Jurisdictional Determinations to EPA’s Assistant Administrator for Water. Responsibility for this role previously resided with regional EPA administrators. Jurisdictional Determinations are a critical aspect of the “dredge-and-fill” permitting requirements under section 404 …

Ordinary Creativity or Common Sense Are Not Enough to Support PTAB's Finding of Obviousness

Intellectual Property
04/10/2018 - By: Constantine "Gus" Marantidis

In a recent opinion [DSS Technology Management. v. Apple Inc., (Fed. Cir. 3/23/2018)], the Federal Circuit iterated that the Patent Trial and Appeal Board (“the Board”) must provide additional rationale beyond “ordinary creativity” and “common sense” for modifying a single reference for rendering a claim invalid. Reference to the “ordinary creativity” of the ordinary skilled …

Federal Circuit Reins In Early Dismissals Based on Patent Liabilities

Intellectual Property
04/05/2018 - By: D. Stuart Bartow

In a span of less than a week in February, the Federal Circuit issued two precedential decisions that may impact the willingness of district courts to resolve patent eligibility issues on early motions. First, on February 8, 2018, the Federal Circuit issued its opinion in Berkheimer v. HP, Inc., vacating a district court’s summary judgment …

Get Your Argument Right the First Time!

Intellectual Property
04/03/2018 - By: Constantine "Gus" Marantidis

In a most recent opinion, the Federal Circuit makes it clear that unless it chooses to exercise its waiver rights under 37 CFR 42.5(b), the Patent Trial and Appeal Board (“the Board”), consistent with the PTO guidelines, is obligated to dismiss new arguments and evidence presented for the first time during the oral argument phase …

Attention Manufacturers of Gaming Devices: Nevada to Consider Regulatory Amendments

Energy & Natural Resources
03/30/2018 - By: Jason Bacigalupi, Glenn Light

In Nevada, manufacturers and distributors of gaming devices and related equipment have been unwilling to enter the market because of the high cost and arduous nature of the licensing process. This can curtail innovation and development of new products, as many smaller companies are forced to limit their activity to less-regulated markets, even if their …

Southwest Power Pool Integration of Mountain West Transmission Group Moves Forward

Energy & Natural Resources
03/27/2018 - By: Dietrich Hoefner

On March 13, the Southwest Power Pool (SPP) approved a set of terms and conditions that will govern the Mountain West Transmission Group’s pending membership in SPP. Specifically, 18 policies were adopted addressing terms of SPP membership in areas including: governance; DC ties between the systems; transmission planning and resource adequacy; and rates and revenue. …

EPA Seeks Comment on Possible Regulation of Groundwater Discharges

Energy & Natural Resources
03/14/2018 - By: Dietrich Hoefner

The U.S. Environmental Protection Agency (EPA) recently requested public comments on whether pollutant discharges that reach “waters of the United States” are subject to regulation under the Clean Water Act (CWA) and require National Pollutant Discharge Elimination System (NPDES) permits. This announcement comes on the heels of a recent Ninth Circuit decision finding that certain …

Claim Construction: A Hard Pill to Swallow for the Unwary

Intellectual Property
02/28/2018 - By: Dustin Szakalski

The process of construing the disputed terms of a patent is a seminal stage in many patent cases. The outcome-determinative nature of a claim construction order leads many parties to stipulate to a judgment of infringement or non-infringement so the disadvantaged party may appeal the unfavorable construction. A recent claim construction order by the Delaware …

eSports Legislation in Maryland

Sports & Outdoor Recreation
02/27/2018 - By: Karl Rutledge

On January 19, 2018, Maryland House Bill 283 was introduced by Republican Delegate Robin Grammer. The bill exempts competitive video games, known as eSports, from the state’s laws banning wagering and gambling. “eSports” is defined as video games such as first-person shooters, real-time strategy games, and multiplayer online battle arenas in which: players compete against …

The Fate of WHOIS Under the GDPR: Privacy and Safety on the Internet

Intellectual Property
02/23/2018 - By: Anne Aikman-Scalese

As of May 25, 2018, a new EU regulation will make the collection of data and tracking of online selling activity illegal – potentially shielding would-be counterfeiters and trademark infringers from detection in the purchase and sale of counterfeit goods. By Anne Aikman-Scalese Privacy advocates hail the new EU General Data Protection Regulation (GDPR) as …

Proposed Energy Modernization Plan: Tribes and Clean Energy Proponents Can Likely Benefit

Energy & Natural Resources
02/16/2018 - By: Pilar Thomas

On January 30, 2018, Arizona Corporation Commissioner Andy Tobin proposed a new “Energy Modernization Plan” for the state of Arizona.  The proposed plan seeks to implement a comprehensive approach to develop  clean energy resources for Arizona’s electricity infrastructure.  Even though Tribes are not mentioned in the plan, Tribes and clean energy proponents should consider the …

Tribal Clean Energy Development: 2017 Changes and 2018 Opportunities

Energy & Natural Resources
02/14/2018 - By: Pilar Thomas

Executive Orders and Agency Changes to Watch During 2017 there were several key sets of action – at the federal, state, local, and industry levels –that have, or will, directly impact Indian clean energy development opportunities. Some of these actions will benefit Indian tribes seeking to develop clean energy resources or becoming more energy self-sufficient.  …

Stone Brewing Sues MillerCoors for Trademark Infringement

Intellectual Property
02/13/2018 - By: Cindy Villanueva

Stone Brewing Co., the ninth largest independent craft brewery in the United States, has taken aim at MillerCoors LLC and Molson Coors Brewing Company, filing suit in the United States District Court, Southern District of California for trademark infringement, false designation of origin, trademark dilution, unfair competition and declaratory relief. On Monday afternoon, Greg Koch, …

From "tequila" to "TEQUILA®" – Registering a Generic Term

Intellectual Property
02/09/2018 - By: David Plumley

The trademark lawyers sternly warn us: “Don’t let your trademark become generic!” They tell us horror stories: ASPIRIN was once a trademark, but became generic from improper use. Same thing for ESCALATOR and INTERNET. Some trademark owners implement aggressive marketing campaigns to prevent this terrible fate: “It’s KLEENEX® brand facial tissue,” or “VELCRO® brand hook-and-loop …

Supreme Court Recently Issued Opinion That Will Impact Clean Water Act Litigation

Energy & Natural Resources
02/08/2018 - By: Stanley Lutz

The United States Supreme Court recently issued a unanimous opinion on a procedural matter that will have a significant impact on future Clean Water Act litigation.  In National Association of Manufacturers v. Department of Defense, issued on January 22, 2018, the Court determined that challenges to the Waters of the United States Rule must be …

Craft Beer Trademarks: Innovative, Inspiring and…Infringing?

Intellectual Property
02/05/2018 - By: Oliver Bajracharya

If you’re thirsty and of legal drinking age, you are likely within a stone’s throw of being able to enjoy the cadre of remedial tonics offered at a craft brewery. There are now over six thousand breweries in the United States, a new record, with over 80 percent of American adults living within 10 miles …

Denver Green Roof Initiative Passes – Will Businesses Lose Some Green on their Balance Sheets?

Energy & Natural Resources
01/31/2018 - By: Dieter Raemdonck

Denver voters recently passed a ballot measure, Initiative 300, also known as the Denver Green Roof Initiative, that has many developers and real estate owners seeing red. Or, maybe green. Despite opposition from Mayor Hancock, the Denver Post, and others, and a huge spending advantage for developers opposing the measure, 54 percent of voters gave …