Arecent decision from the US Courtof Appeals for the Federal Circuithas changed the game for proving

fraud before the TTAB and is likely to maketrademark prosecution less stressful for own-ers of large portfolios.

In the Bose decision in August, the FederalCircuit struck down the Trademark Trial andAppeal Board’s standard for determiningwhether a trademark applicant has committedfraud before the USPTO. The case concernedan appeal of the Board’s 2007 decision to can-cel Bose’s Wave mark because the companyhad stopped using the mark for all of the goodsspecified in its trademark renewal application.

AIPLA was the only party to submit anamicus brief in the case, and Susan Hightowerof Pirkey Barber was allowed to argue onAIPLA’s behalf. AIPLA Executive Director, QTodd Dickinson, told the AIPLA Daily Report:“I’m very pleased that the decision was prettymuch on all fours with our brief and vindicatesour position. I’m glad that we were able to helplead that through our amicus advocacy.”

In line with its Medinol analysis, in BoseCorp v Hexawave, the Board had determinedthat Bose’s general counsel, Mark Sullivan,knowingly made a false misrepresentationbefore the USPTO when he signed a renew-al application that in part covered audio taperecorders and players, which Bose hadstopped manufacturing. Sullivan argued thathe believed the company’s continued prac-tice of repairing these goods sufficed as usein commerce, but the Board disagreed andrejected Sullivan’s assertion that he had notbeen intentionally deceptive.

But ruling in Bose’s appeal of that decision,the Federal Circuit said: “Unless the challengercan point to evidence to support an inferenceof deceptive intent, it has failed to satisfy theclear and convincing evidence standardrequired to establish a fraud claim.” The opin-ion added that the Board erred in cancelling

David Kappos, the newUndersecretary of Commerce forIntellectual Property and

Director of the USPTO, will take part in aspecial session during the AIPLA AnnualMeeting at 8:00 am this morning.

In one of his first public appearances sincebeing confirmed in the post, Kappos will dis-cuss the challenges facing the USPTO.

Bill Barber of Pirkey Barber, officer-in-charge of the AIPLA Planning Committee,said Kappos’s appearance will be “a hugehighlight” of this year’s Meeting. Speaking tothe AIPLA Daily Report – which is publishedtoday, tomorrow and Friday – Barber said heis also looking forward to today’s lunchtimespeech from EPO President AlisonBrimelow: “It’s nice to have an internationalspeaker like that, especially as a lot of ourmembers are active before the EPO.”

AIPLA’s Professional Program ChairMike Martinez de Andino of Hunton &Williams added that many of this year’s ses-sions will have an international flavor:“Several sessions on Thursday and Fridayfocus on licensing issues between the USand foreign countries and how to coordinateglobal disputes with offices overseas.”

Another Annual Meeting highlight is apanel of federal court judges, who will discussthe patent jury instructions that were agreedon earlier this year. “They will talk about theirexperiences, what they have seen and whatcan be changed in the draft,” said Martinez.The panel takes place on Saturday morning,after the annual review of IP topics, and eachof the three active judges taking part in thepanel will be profiled in the AIPLA DailyReport, starting today with Judge RonaldWhyte of the Northern District of California.

The AIPLA Planning Committee hasbeen working on the program since lastOctober, said Martinez: “We start to get thespeakers and topics aligned about nine to 10months in advance, and select coordinatorsfor the various meetings.” He added: “Wehave had monthly conference calls where wereview the latest draft of the program, and goover each session.”

A particular challenge, said Martinez, isensuring CLE accreditation in all 50 states,as each has its own requirements: “AIPLA isa national organization, and we promote themeetings to anybody in any state to attend.”This year, five sessions at the AnnualMeeting will count towards CLE ethics

points. There are also sessions aimed specif-ically at corporate members, young lawyersand overseas practitioners.

At tomorrow night’s dinner, the AIPLAExcellence Award will be presented posthu-mously to Tom Arnold, a former AIPLApresident who passed away earlier this year.Barber, who started practicing IP law withArnold, said the award is presented no morethan once a year to “truly exceptional leadersin the IP field.”

Martinez advised new AIPLA attendeesto be sure to pick up a quick guide brochurewhen registering, and then choose sessionsof most relevance to their own work. But, headded: “Don’t miss out on the receptionsand networking, including the lunches anddinners. You can meet people there, whichwill stand you in good stead if you need torefer cases in the future.” Barber added thatnew attendees should be sure to attendtoday’s new member and first-time attendeereception, and should also consider attend-ing a committee meeting: “Most of the com-mittee meetings are open and that is wherethe AIPLA does its work. It’s also easy tosign up to most of the committees if youwant to get more involved.”

THURSDAY EDITION

managingip.com

DAILYREPORT

AIPLA ANNUAL MEETING, WASHINGTON DC, THURSDAY OCTOBER 15 2009

President Terry Reaon a rollercoasteryear in IPInterview Page 10

Judge RonaldWhyte discusses trying patent casesProfile Page 11

New USPTO Director toaddress Annual Meeting

AIPLA welcomesBose decision

Since being confirmed by theSenate on August 7 DavidKappos has made a number ofchanges at the USPTO. OnOctober 1, he outlined plansto change the so-called exam-iner count system, underwhich examiners are reward-ed. Kappos proposes toreduce pendency and increasequality partly by awardingfewer credits to examiners forRCEs and allowing more timeoverall to examine applica-tions, as well as more time forinterviews. The plan is sup-ported by the Patent OfficeProfessional Association.

Then, last week, heannounced that he would

rescind the controversial rulesand continuations packageimposed by the formerAdministration.

In a recent speech, the newdirector said his objectivesinclude addressing pendencytimes, the patent applicationbacklog, processing qualityand IT systems. Kappos, whowas previously head of IP atIBM, said: “I won’t stand uphere and tell you how perfectour quality is. I know thatquality is not where it shouldbe, even if the agency’s pastquality standards indicatedotherwise.”

In addition, he is workingon a task force to deal specif-

ically with PCT matters andhow the PCT can beimproved.

Kappos was nominated byPresident Barack Obama tosucceed Jon Dudas in Junethis year. He spent 26 years atIBM, in various legal and IProles, and was a strong sup-porter of the USPTO’s peer-to-patent project. OnOctober 2, USCommerce SecretaryGary Locke nominat-ed Sharon Barner,formerly head of IPat Foley & Lardner,to serve as DeputyDirector of theUSPTO.

Kappos hits the ground running

Continued on page 2

PUBLISHED BY

AIPLA

Applicants seeking patent protectionworld-wide should increasinglyfind themselves eligible to have

their patent applications fast-trackedthrough a network of patent prosecutionhighways (PPHs) between the world’spatent offices, including the big three.

Representatives of the EPO, USPTOand JPO, who have met recently in Viennaand Geneva, have been discussing ways todecrease work load and accelerate patentprosecution through the sharing of searchand examination results, including prelim-inary results for PCT applications. Thesediscussions are welcomed by WIPO offi-cials, who have been looking for ways tolink the PCT system to the bilateral work-sharing deals that are increasingly preva-lent between national and regional patentoffices.

Speaking to the General Assemblies,WIPO director-general Francis Gurry saidthat plurilateral initiatives to cut pendency,including patent prosecution highways,should be brought under the multilateralumbrella of the PCT. This is a WIPO-administered system that allows applicantsto seek patent protection in a large numberof countries by filing an international patentapplication either with the applicant’s localpatent office, with WIPO’s InternationalBureau in Geneva or with regional patentoffices such as the EPO.

The PCT was designed to offer offices

and applicants a solution by eliminatingunnecessary duplication of work, therebyallowing offices – already groaning under theweight of backlogs – to work more efficient-ly. But many users agree that the PCT sys-tem is not working as well as it should.WIPO officials say that the system itself isnot at fault. Instead, they accuse some IPoffices of failing to take PCT work sufficient-ly seriously.

Making the PCT system more effectiveis a priority for Gurry, who took overWIPO’s job top last year. Soon after, he

launched what he called a roadmap for thesystem, in which the IP offices of contract-ing states were given a checklist of tasks tocomplete. The list includes implementingtheir Treaty obligations fully; eliminatingduplication within their own offices, eitherdirectly or by providing better incentivesfor applicants to avoid dual processing;ensuring that practices and work productsencourage work sharing and reduction ofduplication between different offices; andtaking steps to ensure the availability ofhigh quality search and examinationreports.

Overseeing efforts to improve the waythat the PCT works for patent applicantsand IP offices will be Jim Pooley, who takesover as WIPO’s deputy director-general forpatents on December 1. As a past presidentof the AIPLA, he is familiar with WIPO andthe complexities of harmonizing a global IPsystem, and has said he is committed tohelping “advance the agenda for efficientand effective global patent protection.”Speaking in July, Pooley said that “WIPO’seffectiveness as the primary leader for inter-national patent harmonization has wanedin the last decade, as other bilateral andplurilateral efforts have been advanced.” Hethus hopes to focus during his tenure onimplementing Gurry’s plan to strengthenthe PCT “and in the process restoreWIPO’s central role in bringing efficiencyto global patent protection.”

Jim Pooley

WIPO urges IP offices to back PCTBose’s mark in its entirety and that it is in thepublic interest to keep “technically good”marks that are still in use on the register.

AIPLA’s brief said: “With Medinol and itsprogeny, including this case, the Board hasdisregarded the time honored elements offraud and jettisoned the pivotal requirementof deceptive intent. The Board, further-more, has failed to give meaningful consid-eration to the elements of materiality andinjury. AIPLA urges the Court to remandthis case and instruct the Board to applyproper standards for analyzing when erro-neous statements of trademark use consti-tute fraud.”

In Medinol v Neuro Vasx, Neuro Vasxfiled a petition to cancel Medinol’s markNeurovasx, alleging that it was not beingused for stents as represented at thetime the statement of use was signed.Medinol said that the statement of use’sinclusion of stents was “apparently over-looked,” but denied any allegations offraud.

However, the Board ruled thatMedinol’s explanation did “nothing toundercut the conclusion that respondentknew or should have known that itsstatement of use was materially incor-rect” and granted summary judgment infavor of Neuro Vasx on the issue offraud. From Medinol forward, the Boardapplied this standard in determiningfraud, but the Federal Circuit has nowsaid that a party must clearly prove“deceptive intent” when alleging fraud.

The Medinol muddle

Continued from page 1

2 NEWS THURSDAY, OCTOBER 15 2009 AIPLA DAILY REPORT

From reverse payments to standards setting, antitrustauthorities have been cracking down on abuses of IPrights on a global scale. In today’s panel organized

jointly by the AIPLA committees on antitrust law andbiotechnology, high level representatives of the Federal TradeCommission and the Department of Justice will discuss theintersection of IP and competition with respect to topics suchas follow-on biologics, pharmaceuticals, standards and patentreform, including international developments.

IP at the FTCIn the US, the difficult relationship between competition and IPlaw is being underscored by the regulatory body that helps gov-ern anti-competitive behavior, the Federal Trade Commission(FTC). In 2003, the FTC published a report titled “ToPromote Innovation: The Proper Balance of Competition andPatent Law and Policy.” Along with the National Academy ofScience’s 2004 report, “A Patent System for the 21st Century,”the FTC’s study influenced many of the ideas found in thePatent Reform Act, which is still being debated by Congress.

Since the FTC’s report was released six years ago, cases suchas MedImmune, eBay, KSR, Seagate and Bilski have addressedmany of the issues raised by the antitrust watchdog and drastical-ly changed the legal landscape for patent owners. Consequently,the FTC has decided to reevaluate the issues it explored in the2003 report through a series of public hearings titled “TheEvolving IP Marketplace,” which are aimed at obtaining a multi-disciplinary understanding of modern patent practices.

The first hearings were held in December 2008 and includ-ed a keynote address by Chief Judge Paul Michel of the FederalCircuit. In his remarks, Michel made it clear that he thinks thatthe courts have a key role in determining the right balancebetween allowing IP owners to assert their rights and encour-

aging competition: “Everybody should make their own choiceabout who they think the best actor is to make rather fine bal-ancing decisions among many competing goals, but for myown money, putting it in betting terms, I would bet on thecourts. This is what courts do all time. This is what courts usu-

4 PREVIEW: ANTITRUST THURSDAY, OCTOBER 15 2009 AIPLA DAILY REPORT

Regulatory bodies in the US and Europe are taking a tough stance on settlement agreements between generic andbrand pharmaceutical companies. Eileen McDermott examines some recent developments that will be discussedduring today’s joint session of the Antitrust Law and Biotechnology Committees

When IP and competition collide

Last month, the Department ofJustice (DOJ) urged a court in NewYork to reject Google’s proposedsettlement with numerous authorsand publishers worldwide. The par-ties brought a class action suitagainst the internet company’s pro-posed Google Book Search web-site, which aimed to “digitize,search and show snippets of in-copyright books and to share digi-tal copies with libraries without theexplicit permission of the copyrightowner,” according to a statementby the Author’s Guild and theAssociation of American Publishers,who brought the suit.

Under the proposed agreement,Google would make paymentstotaling $125 million, in part to cre-ate a not-for-profit Book Rights

Registry, which would be used todistribute payments to authors foronline use of their books, as well asto “locate rightsholders, collect andmaintain accurate rightsholderinformation, and provide a way forrightsholders to request inclusion inor exclusion from the project.”

But in an amicus brief filed lastmonth, the Department of Justiceadvised the District Court for theSouthern District of New York not toaccept the class action settlement.The DOJ told the Court that it hascopyright and antitrust law concernsabout the proposed deal. It calledinstead for Google and copyrightowners to negotiate a new deal.

In its filing, the Department saidthat the two sides should considerimposing limitations on the most

open-ended provisions for futurelicensing, eliminating potential con-flicts among class members, provid-ing additional protections forunknown rights holders, addressingthe concerns of foreign authors andpublishers, eliminating the joint-pricing mechanisms among publish-ers and authors, and, whatever thesettlement’s ultimate scope, provid-ing some mechanism by whichGoogle’s competitors can gaincomparable access.

In response, the parties request-ed that Judge Denny Chin delaythe full hearing so that the DOJ’sbrief could be addressed. JudgeChin granted the request, saying:“It does not appear that the currentsettlement will be the operativeone.”

Copyright gets (anti?)competitive

ally, I think, do pretty well, probably way better than Congress,probably way better than an administrative agency like thePTO, although they of course also have a very big role.”

In the May edition of the AIPLA Antitrust News, CraigCountryman of Fish & Richardson summarized the thirdinstallment of FTC hearings, held in March, saying: “Thehearings demonstrated that many stakeholders believe thatchanges to the patent system must be undertaken with cau-tion…. It will be interesting to see how the FTC’s viewsdevelop as the hearings continue and how it reconciles thecompeting perspectives of different industries, which see thecurrent system’s effectiveness quite differently.”

Reversing the rulesMeanwhile, in the pharmaceutical and other sectors, theCommission has been aggressively pursuing practices it con-

siders to be anti-competitive. High on its list of targets arereverse-payment deals between drug companies, in whichoriginator pharmaceutical companies pay generic rivals todelay manufacturing their own versions of a product.

While the courts have generally allowed such reverse-pay-ments deals – which may explain why they’ve become far morecommon in the industry – Barack Obama-appointed FTCChairman, Jon Leibowitz, has vowed to stop them. In February2008, he authored an article for The Washington Post condemn-ing court decisions that have encouraged the practice.

In February this year, FTC officials put that new commit-ment into practice by suing Solvay Pharmaceuticals and threegeneric drug makers. The FTC alleged that the generic drugcompanies agreed to abandon their Abbreviated New DrugApplication (ANDA) with the Food and DrugAdministration challenging Solvay’s patent on AndroGel and

to delay generic entry into the market until 2015 in exchangefor “substantial compensation,” including a payment of $10million a year for six years to one company and $6 million upfront to another. The complaint said: “Solvay has unlawfullyextended its monopoly not on the strength of its patent, butrather by compensating its potential competitors.”

David Wales of the FTC Bureau of Competition, added:“The evidence in this case will show that Watson and Par[two of the defendants in the case] agreed to defer theirgeneric entry for nine years, not out of respect for Solvay’spatent, but due to the size of Solvay’s payments to them.”

The FTC and President Obama also support legislationpending in Congress that would ban reverse payments. ThePreserve Access to Affordable Generics Act (S369), intro-duced in February, is still being considered by the SenateJudiciary Committee and would prohibit brand name drug

companies from paying to delay generic entryinto the market, except in cases the FTCdeems good for consumers.

The Commission’s attempts to stop whatit has deemed anti-competitive behavior havebeen rejected in other areas as well, mostrecently when the Supreme Court declined tohear an appeal in a long-running case againsttechnology developer Rambus.

In April last year, the US Court of Appealsfor the DC Circuit dealt the watchdog a blowwhen it held that the FTC had failed todemonstrate that Rambus’ conduct was exclu-sionary or to establish its claim that the com-pany had unlawfully monopolized the marketfor computer memory through deceptive con-duct, in particular by not disclosing its patentsto a US standards-settings organization.

This and other setbacks could explain thewatchdog’s renewed interest in understandinghow the patent community operates via TheEvolving IP Marketplace hearings. “The FTClikes to get feedback to support or refute theirpositions,” says Ken Frankel, chair of the AIPLACommittee on Antitrust Law. “I have no doubtthat they’re trying to gather input via the hear-ings and by being on the panel.”

Today’s session will take place from 3:30 to5:30pm in Washington Room 2 and will includeFTC and Justice Department representatives.

AIPLA DAILY REPORT THURSDAY, OCTOBER 15 2009 PREVIEW: ANTITRUST 5

The European Commission is also inten-sifying scrutiny of the pharmaceuticalindustry under antitrust law. TheCommission’s final report, published inJuly, is the culmination of an 18-monthsector inquiry into why fewer new medi-cines are brought to the market andwhy generic entry can be delayed. TheCommission said it will monitor theindustry under EU antitrust law andbring cases against specific abuses“where appropriate.” In particular, itsaid that originator companies’ use ofinstruments to delay generic entry willbe scrutinized if used anti-competitively,as will defensive patenting strategies.

The inquiry found that originatorcompanies have changed patent strate-gies in recent years, and evidence sug-gested that in some cases they seek todelay or block generics from the mar-ket: “Filing numerous patent applica-tions for the same medicine (formingso called ‘patent clusters’ or ‘patentthickets’) is a common practice.” TheCommission said it will also monitorsettlements that limit or delay marketentry of generics, and that evidence ofwrongdoing should be presented tocompetition authorities.

Antitrust overseas

As you read this, four IP officialsacross the Atlantic will be honingtheir stump speeches and making

last-minute calls to swing voters as they pre-pare for the election of the next president ofthe European Patent Office. AlisonBrimelow’s decision not to stand for re-elec-tion when her term expires at the end of Juneopened the race for her successor, and thevoting is due to begin during a meeting ofthe Administrative Council – made up of arepresentative of each of the EPO’s memberstates – which takes place from October 27to 30.

Each of the candidates heads the IP officein their own country. Denmark’s JesperKongstad is a former biotech entrepreneurwith an MPA from Harvard KennedySchool; France’s Benoît Battistelli is a careercivil servant who took over the chair of theEPO’s Administrative Council in March;Susanne Ås Sivborg of Sweden has workedas an EPO patent examiner and in-housecounsel at AstraZeneca; RolandGrossenbacher has more than 30 years’experience at the Swiss Federal Institute forIntellectual Property as well as a nine-yearstint as chair of the Admin Council and is thelongest-serving IP official of the quartet.

The last election for the EPO’s presidentwas fraught and protracted. Unable to settleon one candidate, representatives of theOffice’s member states finally agreed a com-promise that saw France’s Alain Pompidousplit the presidency with the UK’s AlisonBrimelow in a deal in which each served forthree years. But with patent backlogs andbudgetary problems awaiting the new presi-dent, EPO observers agree that it would be

far better if a successful candidate emergesbecause he or she has broad support, ratherthan because of backroom horse trading.

When it comes to identifying the chal-lenges that the EPO faces, the candidatescite a long list – from the need to controlcosts and deal with pendency to improving

perceptions of quality, managing industrialrelations and responding to society’s grow-ing disillusionment with IP.

If she wins the election, Sivborg says herfirst task will be to build more open commu-nication with managers at all levels and thestaff. “Alison Brimelow has done a lot ofgood things in this area but it is somethingwe must continue because cultural changetakes a long time,” she adds. Kongstad, too,says he would want to ensure that he getsEPO professionals on side. “[If elected] Iwill initiate a process of dialogue with thestaff and management team in order tobecome acquainted with their views and per-ceptions,” he says.

If he wins the top job, Battistelli says hisfirst act as president would be to launchexternal audits into the Office’s budget andits IT systems. The aim would be to question

what he calls “artificial and dogmatic consid-erations which have guided our approach to[financial reporting] norms”.

Grossenbacher says his priority would beto simplify procedures at the Office. “We areoverregulated to an extent which makes itdifficult to exercise effective leadership,” hesays. But he adds that he wants to avoid whathe calls management by St Mark’s Square:“That is, making a big noise when arriving,scaring all the pigeons and make them flutteraround for a moment, and then after a whilethey would sit down exactly where they werebefore.”

EPO President Alison Brimelow will reflect onrecent developments in Europe in a lunchtimespeech at 12:30 pm today. The AIPLA EPOLiaison Council also meets this morning andthis afternoon (Council members only).

The Electronics and Computer LawTechnology Committee andEmerging Technology

Committee will jointly hold a meeting todaylooking into how companies can monetizegreen technology.

Three speakers from leading companieswill talk about the technologies that they aredeveloping and how they are using the IPthat they are creating. Bryan Geurts, patentcounsel for NASA, will discuss green tech-nologies that the Agency is creating; RobertLindefjeld of Nantero will talk about carbonnanotube research; and Dr Henry Behnke ofChina Solar Energy Holding, a Hong Kong-based maker of solar photovoltaic cells, willdiscuss his company research.

As with many committee meetings at thisyear’s Annual Meeting, the Bilski case will bediscussed. Raymond Van Dyke, a partner ofMerchant & Gould in Washington DC andthe outgoing chair of the EmergingTechnologies committee, is worried that thecase could have “potentially a very damagingeffect, even devastating,” on emerging tech-nologies and cause the same problems that arenow being experienced with software patents.

Van Dyke argues that, from the 1960sto the 1980s, the Supreme Court gavemixed signals on the eligibility of softwarepatents, which led to developers not both-ering to file, causing a lack of prior art. Ifthe Supreme Court upholds the CAFC’smethod or transformation test, this couldhave the same effect and limit patent fil-ings in critically important technologies –such as nanotechnology, pharmacoge-nomics and medical diagnostics – anddeter investment. “Hopefully the Justiceswill see that there needs to be some flexi-bility,” he says.

Patents for green technologies are set toplay a key role in the UN Convention onClimate Change that will take place inDecember this year in Copenhagen,Denmark. There, activists and some countryrepresentatives will be arguing that, even ifpatent protection is awarded for inventionsthat could help reduce global warming,developing countries that cannot afford tolicense the technology should be allowed toissue compulsory licenses.

The counter argument – that R&D inthese vital, cutting-edge technologies will

only come if investors are sure that they willbe able to get a return on their moneythrough patents – is strong, but not as simpleto make in the media. Van Dyke said it wasimportant to negotiate a compromise on thisissue: “If the balance goes too far one way orthe other, it will not be a good thing.”

The joint meeting takes place in the MarylandBallroom from 3:30 to 5:30 pm.

6 NEWS THURSDAY, OCTOBER 15 2009 AIPLA DAILY REPORT

As the European Patent Organization prepares to elect a new EPO president, Emma Barraclough profiles the fourcandidates and asks what their priorities will be

EPO presidential candidates prepare for voting

0

30000

60000

90000

120000

150000

2004 2005 2006 2007 2008

Source: EPO

Total European and Euro-PCTapplications filed at the EPO

How to file and license green technology

National patent offices have begun schemes that speed up patent applications forgreen technology. • In 2006 the USPTO began the trend with a scheme that allows people to petition

for quicker examination for a number of reasons, including if the invention will“enhance the quality of the environment” or “contribute to the development orconservation of energy resources.”

• In April this year, the UKIPO launched a program that would allow patents forgreen technologies to be registered in nine months.

• In September IP Australia said it had extended its expedited examinationscheme to include green technology and promised to accelerate the examinationprocess to “between four and eight weeks”.

• The Korean IP Office has put a scheme in place from the beginning of this monththat allows for priority examination of inventions that prevent water pollution, airpollution or help recycle.

Cleantech on the fast track

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Roland Grossenbacher

While many IP owners in China are focusing onthe far-reaching changes to the country’s PatentLaw, which came into effect at the beginning of

this month, 2009 has seen important developments in copy-right and trademark law.

China is reviewing all its IP laws as part of its National IPStrategy, an ambitious roadmap that aims to make the coun-try one of the world’s most innovative by 2020. The govern-ment published the strategy in 2008 and drove the processforward this year with the publication of draft amendmentsto the Trademark Law. IP owners expect the NationalPeople’s Congress to pass these in 2010. Reform of theCopyright Law is some way off, though the recently decidedWTO cases may lead to some minor changes.

In addition to this legislative activity, the SupremePeople’s Court has shown its intent to improve IP enforce-ment in 2009, with some important changes to how trade-mark owners can obtain well-known status. An AIPLA com-mittee meeting this afternoon will look at trademark filingstrategies and copyright protection from a US and Chineseperspective. They will have plenty to discuss.

Trademark law amendmentsIn June this year the State Administration for Industry andCommerce released a second draft of amendments to theTrademark Law. Proposed changes will allow IP owners toapply to register more non-traditional trademarks and willincrease the damages available for infringement.

The amendments would expand what non-traditionaltrademarks can be registered. Three-dimensional symbolsand combinations of colors are already eligible. The amend-ments would also allow registrations for single colors,sounds, smells and animation marks. But the draft states thatthe China Trademark Office (CTMO) will “choose anappropriate time” to accept sound, smell and animation astrademarks and that the SAIC will issue specific guidelinesabout how the new rules will be implemented in practice.

In an important change from the first draft of proposedamendments, which was published in August 2007, this draftpreserves relative examination of trademarks on relativegrounds. The previous draft had abolished relative examina-tion on relative grounds and set a deadline of 12 months forexamination of a trademark to be completed.

At the time, this proposal divided opinion. Some had wel-comed the attempt to reduceChina’s pendency problem (seebox), but many trademark prac-titioners told AIPLA DailyReport that abolishing relativeexamination in China could leadto a flood of bad faith examina-tions that would result in longerdelays in opposition and cancel-lation proceedings.

This draft has maintained anearlier proposal to move oppo-sition proceedings from theCTMO to the TrademarkReview and AdjudicationBoard (TRAB), which alsodeals with cancellation actions.In addition to shifting thevenue for oppositions, it limitsthose who can oppose a trade-mark to the owner of an earliertrademark or an interestedparty. This change is “targetedat reducing the number of vexa-tious and frivolous requests foropposition and invalidation,”said Ai-Leen Lim, a partner ofBird & Bird in Hong Kong.

Other changes to the appli-cation process include allow-ing multiple class examina-tions, although the draft againstates that the CTMO will“choose an appropriate time”to accept them. Article 9 alsomakes it clear that applicantsshould follow “the principle ofhonesty and good faith” whenapplying for trademarks. Thiswill make it easier to opposeregistrations on the grounds of

bad faith, though trademark owners would like greater clarityon how this will work in practice.

In enforcement, Article 68 follows the Patent Law amend-ments passed in December last year by increasing statutorydamages from Rmb500,000 ($73,000) to Rmb1 million($146,000). Maximum administrative fines would increasefrom three times to five times the infringer’s illegal turnover.

Although these increases are welcomed, trademark ownerswould like to see more done to deter counterfeiters. “Whilelaudable, these changes, by themselves, are unlikely to havemuch of an impact on the overall level of counterfeiting inChina. Deeper reforms need to be considered,” says JoeSimone, a partner of Baker & McKenzie in Hong Kong.

Comments from interested parties had to be submitted byJune 30. It is not yet clear whether a third set of draft amend-ments will be issued, as happened for the amendments to thePatent Law.

Becoming well-knownIn addition to these changes to the Trademark Law, China’sadministrative and legal authorities have tightened the rules fortrademark owners who want their marks to be granted well-known status. On April 21 this year, the SAIC issued WorkingRules to identify well-known trademarks, while the SupremePeople’s Court’s Interpretation on Several Issues Concerning theApplication of Law to the Trial of Cases of Civil Disputes over theProtection of Famous Trademarks came into force on May 1.

In China a trademark can be granted well-known statuseither in the courts or by the CTMO, TRAB and theAdministration for Industry & Commerce (AIC). Owners ofwell-known marks have a number of advantages over their reg-ular mark-owning rivals in China. For example, they can pre-vent the malicious registration and use of the mark for the sameclass of goods or services, even if their own mark is unregistered.If their mark is registered, they can prevent a rival from register-ing an identical mark for non-similar goods or services.

8 PREVIEW: CHINA THURSDAY, OCTOBER 15 2009 AIPLA DAILY REPORT

Big changes for trademark and copyrightChina has always been a difficult market for IP owners, but the country is determined to improve its image. Inadvance of today’s committee meeting on IP in the Far East, Peter Ollier looks at the improvements that have beenmade in the past 12 months

China has the busiest trademark office in the world,with 708,000 applications received in 2007. This yearthe office is on course to equal or surpass that num-ber. But the system is crippled by delays. It can takethree years to register a trademark, a further twoyears if there is an opposition and anything fromseven to 10 years if the case then progresses to theTrademark Review and Adjudication Board (TRAB),which deals with appeals against a refused registra-tion, appeals against CTMO opposition decisions andcancellation actions. While the government has takensteps to reduce the backlog (see below), practitionerssay more needs to be done.• August 2007: The first draft of proposed amend-

ments to the Trademark Law includes plans toreduce the backlog by abolishing relative examina-tion, processing all applications within 12 monthsand shifting the opposition procedure from CTMOto TRAB. There is considerable opposition amonginternational trademark owners to these changes.

• March 2008: Li Jianchang replaces An Qinghu asCTMO commissioner while at TRAB, Xu Ruibiaoreplaces Hu Lin as commissioner. Sources confirmthat SAIC is recruiting 400 new examiners onthree-year contracts: 300 for CTMO and 100 forTRAB. While people agree that this has led tosome improvement, the backlog problem remains.

• June 2009: SAIC publishes a second draft ofamendments to the Trademark Law, with a 10-daydeadline for comments. Relative examination isback in the law and the 12-month examinationdeadline is removed.

China battles with its backlog

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China’s Supreme People’s Court

The Court’s new Interpretation restricts the circumstancesin which the China’s courts will grant well-known status, whilethe SAIC rules allow trademark owners to use evidence fromabroad to prove well-known status using the administrativeroute. “This will definitely benefit foreign IP holders,” saidGeorge Chan, a consultant for Rouse in Beijing.

The SAIC Rules establish a Well-Known TrademarkAdjudication Board that consists of officials from the CTMO andTRAB. The Rules set out the factors that the Committee willconsider when considering whether a trademark is well known:reputation among the relevant public; use of the mark, includingadvertising, over a continuous period of time; the degree and geo-graphical area of the advertising; record or protection of the markas famous in China or other countries; and other factors that con-tribute to the reputation of the mark worldwide.

The Working Rules also establish political supervision of thesystem of granting well-known marks. When the CTMO orTRAB meet to discuss the identification of well-known trade-marks, the Central Commission for Discipline Inspection of theCommunist Party of China and the Ministry of Supervision willsend members stationed in SAIC to attend the meeting.

Chan told AIPLA Daily Report that the SAIC decided toallow trademark owners to use evidence from overseas afterFerrero Rocher’s victory in the Supreme Court last year. In thiscase the Court allowed the German chocolate maker to use evi-dence of its international reputation in a case against a domes-tic maker of chocolates that used similar packaging.

Article 3 of the Supreme Court’s Interpretation states thata court will not examine whether a trademark is well known ifthat is not essential to prove trademark infringement orunfair competition. This is intended to end the practice ofcourts being too willing to grant well-known status in caseswhere it was not necessary to do so.

Doug Clark, a partner of Lovells in Shanghai, also high-lighted Article 11 of the Interpretation, which allows well-known trademark owners to obtain an injunction to pre-vent the use of an improperly registered trademark. Theonly exceptions to this are if the time limit of five years toask for a trademark to be revoked has expired or it the markwas not well-known when the infringing application wasfiled. Given that it still takes years to invalidate trademarkregistrations at the CTMO this new option “is a big stepforward,” said Clark.

The impact of the WTO casesIn addition to this judicial and legislative activity, the WTOdecided two trade disputes between the US and China thisyear that are relevant to copyright and trademark owners.The first case, DS362, looked at China’s poor record of IPenforcement. The case looked at three complaints: thatChina’s system of thresholds for criminal enforcement allowscounterfeiting on a commercial scale; that China Customsdoes not dispose of infringing goods correctly; and thatChina’s denial of copyright protection to works that havebeen banned does not comply with TRIPs.

The USTR lost the criminal thresholds case because of alack of evidence, but won a clear victory on the denial ofcopyright protection to banned goods. This means that arti-cle 4 of China’s Copyright Law will need to be changed.

The second case focused on Chinese rules that restrict thedistribution of US books, music and videos into China. InAugust this year the WTO published a 491-page report thatdescribed some of China’s actions as “discriminatory” andasked the government to remove restrictions on who canimport copyright goods into China.

US Trade Representative Ron Kirk hailed the ruling as a

“significant victory,” saying: “This decision promises to levelthe playing field for American companies working to distributehigh-quality entertainment products in China, so that legiti-mate products can get to market and beat out the pirates.”

But commentators warned that this is only one step in thebattle to reduce piracy in China. Nick Redfearn, of Rouse inHong Kong, agreed that lifting the restrictions would enablethe US film studios “to distribute more quickly and efficient-ly than before” and that “that will help reduce piracy to somedegree.” But IP practitioners contacted by AIPLA DailyReport were skeptical about how much of an impact the rul-ing would have on China’s piracy problem.

“I don’t see how this will help,” said Mark Cohen, of coun-sel with Jones Day in Beijing. Cohen pointed out that the rul-ing did not deal with the Chinese government’s decision tolimit theatrical, revenue-sharing movie releases from the US to20 a year. As long as that restriction remains in place, Chinesepirates will still be able to profit from copying films that cannotbe bought legitimately in China, Cohen argues.

The joint meeting takes place in Washington Room 1 from 3:30to 5:30 pm.

protection in ChinaAIPLA DAILY REPORT THURSDAY, OCTOBER 15 2009 PREVIEW: CHINA 9

WASHINGTON INSIDEREveryone knows about the Mall, the monu-

ments and the museums. See more of the real

DC and its local history by walking one of the

Neighborhood Heritage Trails. The Adams

Morgan trail is just across the bridge at Calvert Street, and

the U Street trail is reachable using the Circulator bus from

the Woodley Park Metro (stop is U Street).

What is your background?I’m actually a pharmacist: I worked in a hospital pharmacyand attended law school in the evenings. From 1980 to 1984I worked in a corporation and ever since I have been in pri-vate practice, with three different law firms.

It was luck that I ended up working in IP. I decided I want-ed to go to law school and took a survey course on IP. Nowit’s turned into a high-visibility profession. For someone wholikes science and enjoys combining that with legal principlesand strategies, patent law is quite fun. I had a science degreebut I had always liked English too and I thought lawyers wereable to direct how things were done so that was what led meto law school.

I am actively engaged in patent prosecution, includingreexamination and interference work, and also litigation.Most of my clients are in the pharmaceutical and biotechnol-ogy industries, and are relatively active in litigation.

What has your year as AIPLA president involved?It has been interesting times, not just because of the economybut because patent law is going through a period of transi-tion. When I became AIPLA president, President Obamahad just been elected and it was a time of change across the

board, with the economic upheaval in the US and globally. Ithas been a rollercoaster ride.

One of those changes is that President Obama’s electionled to a new USPTO director. We are very fortunate to haveDave Kappos as the new USPTO director. We know him well– he was formerly a board member of AIPLA – and we lookforward to working with him. The hold-up in his appoint-ment was really due to the time taken to fill the position ofSecretary of Commerce. Once that was decided, it only tookabout two months to interview Dave and the other candi-dates and make the PTO appointment.

What are the biggest challenges for him?Fortunately he has identified the two biggest issues to address:pendency and quality. He has said that his aim is that penden-cy should be no more than 10 months to first action. He alsowants to address problems at the Board of Patent Appeals andInterferences, which is woefully behind. He wants to work withthem to reorganise and get the resources they need.

Improving both pendency and quality requires a delicatebalance. But we are very sensitive to the quality issue: if thePTO issues patents of low quality, that will clog up the courtsand the Office with reexamination proceedings. We need amore efficient system in the PTO and resources for examinersto do their job effectively. This also requires a global solution.

At the moment, there is an examination in each and everycountry of the world. We need an intelligent, integrated globalexamination system with proper work-sharing efforts such asthe patent prosecution highway (PPH) working through thePCT to coordinate the examination of patent applications.Global worksharing will allow us to maintain quality. I wouldlike to see more communication between examiners in differ-ent offices, including actually talking to each other when possi-ble and communicating by email. With the cost of patent pro-tection going up steeply, we need to address issues like this.

Do you think there are many low-quality patentsissued now?In general quality is good worldwide but there are tremen-dous backlogs. WIPO Director General Francis Gurry is wellaware of the part that WIPO and the PCT system can play inaddressing this, and we look forward to working with himand new WIPO Deputy Director General Jim Pooley.

How involved have you been with patent reform?Really involved. At no time in the past year has there been noactivity – there has always been significant lobbying from var-ious sectors even when things look relatively quiet.

At this point, AIPLA wouldlike to see the Senate compro-mise bill go forward and move tothe floor. But I can’t give odds onthat happening – I’ve beenwrong in my predictions somany times before. The problemat the moment is that Congress

has had big issues on their plate – first the nomination ofSanya Sotomayor to the Supreme Court and now the health-care reform, so patent reform is not the biggest priority. I’dlike to see more progress next year once healthcare is resolved.

We desperately need patent reform and the proof will bein ironing out the details – no bill is ever ideal but if theSenate version comes forward we will be pleased.

What about the Supreme Court?The Supreme Court only used to take the occasional patentcase. But it has recognized the importance of patents in driv-ing the economy and the need to ensure that inventors bene-fit from their R&D efforts. We are no longer in the industrialage; IP is going to control the future so we need to give peo-ple confidence to invest in R&D. The Supreme Court is nowvery sophisticated and attuned to IP issues. The next case willbe Bilski, which has its hearing on November 9: that willprobably be the most-read IP decision of all time as it cutsacross all disciplines and will affect every area of technology.

What do you think of the new IP czar VictoriaEspinel?Her name has been suggested for quite some time: I think shewill be very good in bringing trademark and copyright coun-terfeiting into the mix and coordinating with the USPTO.

We very much welcome her to her new position (she hasbeen around for a long time). I think her focus will be moreglobal and international, but her role will also involve com-municating and working with other US agencies, includingenforcement offices such as Customs.

What are you looking forward to during thisyear’s meeting?Dave Kappos has agreed to speak before our membershipand we also expect other USPTO decision-makers to attend.Communication is very important and we have a great rap-port with the PTO now.

We also have a great contingent of people from outsidethe US, who are attending in record numbers this year. I havemade several trips as part of our international outreachefforts, to countries including China, Japan, Korea andCanada, and I’m especially delighted to see the attendance ofour international colleagues increase at our meetings.

What have been your accomplishments duringyour presidency?We have launched two new membership categories. One isfor registered foreign patent or trademark agents – for peoplewho have technical rather than law degrees. We created thatnew category to recognize their contribution to the IP profes-sion. The second is a USPTO affiliate without a law degree,which is available at a very reasonable cost. The aim is tobring examiners into the membership and get their input. Wewant to work with the PTO – our goals are identical.

I was also pleased to be invited to testify before the SenateJudiciary subcommittee on the biosimilars legislation and theFTC hearing on the notice function of patents.

One of the most pleasing things has been the In re Bose deci-sion of the Federal Circuit, which was a case that addressed thetrademark equivalent of inequitable conduct. The AIPLA wasthe only organization to file an amicus brief in that case andone of my AIPLA colleagues also took part in the oral argu-ment before the court. What’s more, the decision came downexactly as we requested. That is just one of about 10 amicusbriefs we have filed this year, which I think is an all-time record.

Overall it has been a year of change, for AIPLA as well as morebroadly, as Mike Kirk stepped down after a long and distinguishedcareer as executive director. We were very pleased to have theopportunity to bring Todd Dickinson on to succeed him.

I expect my successors as president will see huge changesat the PTO and other offices as the backlog is at a criticallevel. We will see a tremendous shift in how things are con-ducted before patent offices throughout the world by about2012, with hopefully a more consistent way of prosecutingand handling applications.

What advice would you give future AIPLA presidents?Remain flexible; pay attention; listen carefully. Things movequickly and everything is very active, especially as hugechanges are occurring right now in IP. Make the most of theAIPLA Executive Committee and Board of Directors and tryto develop consensus where appropriate.

Being AIPLA President has been amazing and excitingand exceeded my expectations. I have had great opportuni-ties and met wonderful people and received courtesies every-where I have traveled, especially overseas. I’m convincedeverybody wants to work together to advance the IP system.

10 INTERVIEW: TERRY REA, AIPLA PRESIDENT THURSDAY, OCTOBER 15 2009 AIPLA DAILY REPORT

Following a year that has seen a new USPTO director, patent reform discussions and cases before the US Supreme Court, James Nurton talks tooutgoing AIPLA President Terry Rea about her year in the hot seat – andwhat she is looking forward to this week

A rollercoaster year in IP

“We need a more efficient system inthe PTO and resources for examinersto do their job effectively. This alsorequires a global solution” TERRY REA

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Perhaps it is Judge Ronald Whyte’s spirit of adven-ture – he has climbed the Andes Mountains, visitedAntarctica and explored the Amazon – that keeps

him interested in trying patent cases. Despite the admittedchallenge of understanding certain technologies, Whyte hasdeveloped a penchant for IP, and even helped to developsome of the most respected patent local rules in the country

for his court, the US District Court for the NorthernDistrict of California. But, as a judge on one of the keypatent courts in the nation, the complex nature of manypatent cases is an issue with which Whyte continues tostruggle.

A math major in college, Whyte realized quickly that num-bers were not in his future, so obtained his law degree from

the University of Southern California School of Law. “Icouldn’t figure out what else to do with myself,” he says. Afterthree years of military service, he began working in privatepractice doing civil litigation and landed in his present postwhen nominated by President George W Bush in 1991, aftera brief stint at Santa Clara County Superior Court.

“I’m not sure I could have even defined what a patentwas,” says the judge of his IP acumen at the time.Unfortunately, he adds, “San Jose was where most of thepatent cases were being filed, so we got deluged with them.”He tackled this problem by auditing a course at Santa ClaraLaw School on patent law, which he says “taught me thebasics.” Today, in addition to a variety of non-IP issues, hecontinues to spend a sizeable portion of his time on patentcases, and also handles a fair number of copyright cases andthe occasional trademark matter.

The local rules In 2001, Whyte helped to create the first set ofpatent-specific local rules, with the partial aim ofproviding consistency among the approaches ofthe various judges on the court to scheduling andprocedures. “Attorneys were voicing concernsabout discrepancies, justifiably so,” says Whyte.He adds that judges were also finding the initialcase management conferences in patent cases tobe “a nightmare.” Whyte and a committee thusset out to streamline the process. “Now the par-ties come in with agreed upon schedules and dis-putes are minimal,” says Whyte.

In 2008, the rules were further modified,specifically with respect to combining prelimi-nary infringement and validity conferences andrequiring parties to list their 10 most importantclaim construction disputes. The aim was toencourage parties to narrow disputes, sincepatent cases can be some of the most impas-sioned and therefore contentious. Whyte saysthat “discovery in patent cases is a nightmare,” forinstance, “because each side wants to turn overevery stone and a lot more money is spent onpreparation than should be. Both parties andattorneys are emotionally involved because thereare such huge outcomes from the beginning.”

Whyte’s advice to patent attorneys arguingbefore him is thus to “work to resolve cases andonly go through the discovery process in casesthat can really not be settled.” However, he con-cedes: “That’s not human nature I guess.”

Despite the fall-off in trials this year (seechart), Whyte still spends about 20% to 25% ofhis time on patent cases and says that he enjoysthe intellectual aspects of trying patent cases, aswell as the fact that “you get the cream of thecrop with patent lawyers.” However, he notesthat patent cases can also be uniquely frustrating:“Some of the technology is so difficult that youworry whether you’re coming out with sounddecisions.” His approach to this problem was atone time to have parties choose a technical advi-sor for the judge, “but that’s gone out of favor tosome degree with most attorneys,” he says. “Oneof the most disquieting things about patent casesis that sometimes, no matter what, you just don’thave a grasp on the subject matter. That’s thebiggest challenge in patent law.”Judge Whtye takes part in Saturday’s session on juryinstructions

AIPLA DAILY REPORT THURSDAY, OCTOBER 15 2009 PROFILE: JUDGE RONALD WHYTE 11

The trials of patentsJudge Ronald Whyte sits on one of the most patent-savvycourts in the country. He spoke with Eileen McDermott

0

50

100

150

200

2005 2006 2007 2008 2009

Number of patent cases filedin the ND of CA since 2005

7:00–9:30 am Continental Breakfast Exhibit Hall A Exhibition Level 8:00–9:00 am Under Secretary of Commerce for IP and Director of the USPTO David J. Kappos Thurgood Marshall Ballroom Mezzanine Level

Committee meetings7:00–8:00 am Amicus (Committee Members Only) Virginia C Lobby Level 7:00–8:00 am ECLC Breakfast Meeting (Committee Members Only) Hoover Mezzanine Level 7:00–8:00 am Professional Programs Virginia B Lobby Level 7:00–8:00 am Trademark Committees (Joint Roundtable Discussion) Delaware AB Lobby Level 9:00–12:00 noon US Bar/EPO Liaison Council (Council Members Only) Virginia A Lobby Level 9:30 am–1:30 pm Spouse/Guest Tour: The National Museum of American History

Morning tracks 9:00–12:00 noon Track #1 The Virtual World of Copyrights and Trademarks; and the Best Practices in Trademark Licensing Thurgood Marshall Ballroom Mezzanine Level 9:00–12:00 noon Track #2 Uncle Sam’s Sweet Spot: Understanding USPTO Restrictions and Export Licenses Marriott Ballroom Salon 1 Lobby Level 9:00–12:00 noon Track #3 Experience Needed! Alternative Paths for Expanding Your Career: In-House, Private Practice and Pro Bono Maryland Ballroom Lobby Level 12:00–12:30 pm Luncheon Reception (all registrants invited) Exhibit Hall A Exhibition Level

Luncheon (tickets required) 12:30–2:00 pm Reflecting on Recent Developments in Europe Speaker: Honorable Alison Brimelow Marriott Ballroom Salons 2 & 3 Lobby Level 2:00–3:30 pm Board of Directors Meeting Delaware AB Lobby Level

Afternoon tracks 2:00–3:30 pm Track #1 Ethics: Current Trends in Inequitable Conduct in Patent Litigation Thurgood Marshall Ballroom Mezzanine Level 2:00–3:30 pm Track #2 Litigating in a World without Borders - Multiple Parties, Courts and Countries Marriott Ballroom Salon 1 Lobby Level 2:00–3:30 pm Track #3 eFiling and Alphabet Soup: Best Practices for Trademark eFiling with the USPTO and TTAB using TEAS and ESTTA Maryland Ballroom Lobby Level

Committee educational sessions3:30–5:30 pm Electronic & Computer Law and Emerging Technologies (Joint Session) (120 MINUTES OF CLE AVAILABLE) Maryland Ballroom Lobby Level 3:30–5:30 pm US Bar/EPO Liaison Council and IP Practice in Europe (Joint Session) (110 MINUTES OF CLE AVAILABLE) Marriott Ballroom Salon 1 Lobby Level 4:30–5:30 pm Special Committee on FDA Law (60 MINUTES OF CLE AVAILABLE) Hoover Mezzanine Level

Committee meetings2:00–3:30 pm US Bar/EPO Liaison Council (Council Members Only) Virginia A Lobby Level 3:30–5:30 pm Antitrust Law/Biotechnology (Joint Meeting) Washington Room 2 Exhibition Level 3:30–5:30 pm Copyright Law/IP Practice in the Far East/Trademark Internet/Trademark Law/Trademark Litigation/Trademark Treaties and

International Law/Trademark-Relations with the USPTO (Joint Meeting) Washington Room 1 Exhibition Level3:30–5:30 pm Law Practice Management/Membership (Joint Meeting and Reception) Virginia C Lobby Level 3:30–4:30 pm Mentoring Taft Mezzanine Level 3:30–4:30 pm Online Programs Jackson Mezzanine Level 3:30–4:30 pm Special Committee on Legislation (Committee Members Only) Taylor Mezzanine Level 3:30–4:30 pm Special Committee on Mergers and Acquisitions Harding Mezzanine Level 3:30–4:30 pm USPTO Inter Partes Patent Proceedings (formerly Interference) Hoover Mezzanine Level 4:30–5:30 pm Anti-Counterfeiting and Anti-Piracy Harding Mezzanine Level 4:30–5:30 pm Diversity in IP Law Taft Mezzanine Level 4:30–5:30 pm Fellows (Committee Members Only) Virginia B Lobby Level 4:30–5:30 pm Patent Litigation Tyler Mezzanine Level 4:30–5:30 pm Public Education Thurgood Marshall Ballrooom Mezzanine Level 4:30–5:30 pm Special Committee on Standards and Open Source Truman Mezzanine Level 4:30–5:30 pm Trade Secret Law Virginia A Lobby Level

Thursday evening events 5:30–6:30 pm New Member/First-Time Attendee Reception Washington Rooms 5 & 6 Exhibition Level 7:00–10:00 pm Opening Night Reception (tickets required) Marriott Ballroom Salons 2 & 3 Lobby Level

TODAY’S SCHEDULE: THURSDAY, OCTOBER 15 2009