HRFM Today

Biotech IP Briefing: Genetically Modified Arctic® Apple Approved for Sale in the United States

The U.S. Department of Agriculture (USDA) recently announced the deregulation of the Arctic® Apple, which is the first genetically modified apple to be approved for production, marketing, and sale in the United States.  It also marks just the second time a genetically modified fruit crop has been deregulated by the USDA, with the first being the virus-resistant Hawaiian papaya (‘Rainbow’ and ‘SunUp’), which was deregulated by the USDA in 1997.  Compared to the transgenic papaya, the Arctic® Apple has the potential to have a much larger consumer base and wider geographic market.  Therefore, as expected, the Arctic® Apple’s deregulation milestone has prompted immediate and sometimes strong reactions from both advocates and critics of genetically modified organisms (GMOs).  Even before rendering its decision, the USDA received thousands of public comments on the pros and cons of deregulating the Arctic® Apple.

USPTO Takes a Step Toward Enabling Filing of a Single Design Patent in Multiple Countries

The USPTO moves another step closer to providing U.S. applicants the ability to file a single design patent application in multiple countries/territories.  As you may recall from prior posts, a design patent covers the ornamental design of an article of manufacture, in other words a design patent protects how an article looks rather than its structural or functional features.

On February 13, 2015, the USPTO took the next step in becoming a member of the Hague Union by depositing its instrument of ratification to the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs (the Hague Agreement) with the World Intellectual Property Organization (WIPO).  The Hague Agreement for designs is similar to the PCT system for utility patents and the Madrid Protocol for trademarks by allowing for a single initial filing to protect your rights in multiple countries/territories.

How do I protect my recipe if it isn't Copyrightable?

According to a judgement by a District Court in Ohio, it is best to do as my grandmother did and leave out an ingredient or two when you share your recipes because the courts aren't going to be of any help,  as reported by WIPR.  Apparently, the layout of a cook book itself may have originality such that it is protectable,  but not so much for a recipe itself.

Copyright protects works fixed in a tangible medium of expression that are original.  Copyright infringement ( or the violation of a copyright owned by another person or entity) may be proven by a "substantial similarity" between a work (e.g., book , music, computer software code, sculpture, ect.) and a work protected by copyright and access of the work alleged to be copied by the one alleged to be doing the copying.  This access can also be inferred by the same "substantial similarity" in certain situations.   

According to the Ohio court that issued the decision, a recipe is just a statement of facts with no creative expressive element (i.e., originality) and thus it is not protectable by copyright.

So do as my grandmother did, and leave a little something out when you share a recipe, if you really want to protect what is yours.  Victor Cardona

American Idol Winner Turns the Legal Spotlight on Talent Show’s Contestant Agreements

In a move that music industry insiders have characterized as a “bombshell,” American Idol season 11 winner, Phillip Phillips, launched a legal action last week to void his agreements with 19 Entertainment, Inc., the producer of the hit talent show.  Shortly after becoming a contestant on the show, Phillips entered into at least four different agreements with 19 Entertainment and its affiliates:  (i) a management agreement; (ii) a merchandising agreement; (iii) a recording agreement; and (iv) a songwriter/co-publishing agreement.  Because these agreements contain confidential information, they are being kept under seal during the legal proceeding.  However, given the leverage that shows like American Idol have over their contestants, industry insiders have speculated that the terms are probably most favorable to 19 Entertainment.  Now, almost three years after winning season 11, Phillips has grown tired of what he alleges to be a series of “oppressive” agreements.  Although Phillips apparently terminated these agreements in December 2014, Phillips and his legal team have escalated the controversy by accusing 19 Entertainment of unlawfully acting as a “talent agency” in violation of California law and for breaching its fiduciary duty to Phillips.  In addition to seeking to void the agreements, Phillips is requesting that 19 Entertainment disgorge and repay Phillips any and all monies or other things of value improperly received under the agreements by 19 Entertainment (e.g., commissions, fees, profits, advances, etc.).

Capital Region Wins in STEM Jobs and Grads

New York's Capital Region was second in per capita graduates with degrees in Science, Technology, Engineering and Math (STEM) according to a report by the Brookings Institution.  The Times Union in an article based on the Brookings Institution's data reports that the increase in STEM jobs is higher than any metro area in the Northeast, and by percentage is a larger increase than tech hubs, such as Silicon Valley.  Tech job totals in the Capital Region still have room to grow as these positions account for about 8.5% of total jobs in the area in contrast to over thirty percent in places like Silicon Valley.  

The Brookings Institution report indicates that advanced industries are important to the national economy but that the US may be losing its edge in the ability to grow such industries.  It also indicates that high tech investment and highly skilled STEM workers are needed to maintain this edge.  All the more reason why places like New York's Capital Region with its STEM grads may be able to show the way as it competes, not only against the rest of the US, but against the world for the tech jobs of the future.  Victor Cardona