The Supreme Court of the United States has held that the state government is free to infringe copyrights without fear of retribution. In Allen v. Cooper, the Supreme Court decided whether the state of North Carolina could be held liable under the Copyright Act for infringing filmmaker Frederick Allen’s copyright relating to Queen Anne’s Revenge…. Continue Reading
Category Archives: IP
Subscribe to IP RSS FeedStay Away; No Trademark for Social Distancing and other Informational Terms
Posted in IP, Trademark LawCall me a pessimist, but it was surprising to me when I recently checked the USPTO trademark database that I did not find an application to register “Social Distancing” for some other novelty item. (It is also surprising that the tag #socialdistancing has only 159,000 uses on Instagram.) Nevertheless, I am sure some entrepreneurs will… Continue Reading
District Court Stays Discovery Deadlines Because of Coronavirus Threat but Keeps Markman Hearing on Calendar
Posted in IP, Patent LawOn March 6, 2020, a Central District Court in UPL NA Inc. f/k/a United Phosphorous, Inc. v. Tide International (USA), Inc. et al, 8-19-cv-01201 (CDCA 2020-03-06, Order) (Ronald S.W. Lew), issued an order that may become more common place across courts. At the request of the parties, the Court issued a temporary stay of all… Continue Reading
YouTube and the First Amendment
Posted in IPIs the privately-owned YouTube site really a “state actor” subject to judicial scrutiny under the First Amendment? That’s the claim made in a lawsuit by Prager University, which is not really a university. The Ninth Circuit was recently called upon to address PragerU’s claim that the widely popular internet site operated by a private entity… Continue Reading
Google’s Servers Do Not Constitute a Regular and Established Place of Business for Patent Venue
Posted in IP, Patent LawIt has become commonplace for companies such as Google to use local servers to provide faster service to customers. This practice has raised the question as to whether those local servers constitute “a regular and established place of business” for the purposes of establishing venue in patent infringement suits in the districts where the servers… Continue Reading
IPRs Cannot Be Used to Challenge Patents for Indefiniteness
Posted in IP, Patent LawThere are a number of requirements that must be met for an invention to be patentable. The invention must be novel (unique) and nonobvious (i.e., a person skilled in the field of the invention would not have found the invention obvious based on the existing knowledge in the field). In addition, the patent application must… Continue Reading
Lil Nas X Takes His Horse to the Old Town Road and Moves to Dismiss Producers’ Copyright Infringement Action Concerning “Rodeo”
Posted in Copyright Law, IPLil Nas X broke onto the scene in spectacular fashion when he released the viral sensation “Old Town Road,” featuring Billy Ray Cyrus. Old Town Road broke the prior record for most consecutive weeks at No. 1 on the Billboard Hot 100 charts and eventually resulted in Lil Nas X receiving a Grammy award. Unfortunately,… Continue Reading
No Trademark Protection In Book or Movie Titles?!?
Posted in IP, Trademark LawGenerally, the title to a single motion picture is not entitled to trademark protection. This is the same for the title to single books, songs and other singular creative works. Most non-trademark attorneys are surprised when I tell them this. I am sure you may be scratching your head as well. The logic behind the… Continue Reading
Is Your Competitor Objectionable? The Scope of Immunity Under the Communications Decency Act
Posted in IPIn February 1996, faced with increasing public concern about the availability of pornography on the internet, as well as recent court decisions that seem to deter efforts to filter out such content, Congress enacted the Communications Decency Act (“CDA”). As part of the CDA, Congress granted immunity to internet service providers from liability for actions… Continue Reading
Is a Copyright Notice Sufficient Evidence a Textbook Is a Printed Publication for Institution of Inter Partes Review?
Posted in Copyright Law, IP, Patent LawTo use a textbook or other reference to challenge the validity of a patent in a petition for inter partes review (“IPR”), the textbook must have been “publicly accessible” prior to the date of the challenged patent to qualify as a printed publication. Is a copyright notice sufficient evidence that a textbook was publicly accessible?… Continue Reading
Disney Seeks to Stop the Rise of Infringing Baby Yoda Goods on Etsy
Posted in Copyright Law, Entertainment Law, IPWhen Disney chose to delay the production and release of merchandise related to The Child—commonly referred to as Baby Yoda—from its hit series, The Mandalorian, it created a significant opportunity for unlicensed fans to create and sell such merchandise. According to statements released by the Walt Disney Company, it intentionally delayed the production of Baby… Continue Reading
Player/Haters May Be Original Afterall
Posted in Copyright Law, IPIn the early 2000’s, an all-girl band called 3LW performed a song called “Playas Gon’ Play,” which was written by Sean Hall and Nathan Butler. “Playas Gon’ Play” was initially released in May, 2001 and rose to number 81 on the Billboard’s Hot 100 chart. The album on which “Playas Gon’ Play” appeared sold over… Continue Reading
U.S. Supreme Court Strikes down USPTO’s Request for Attorney’s Fees
Posted in IP, Patent Law, UncategorizedIn a unanimous ruling, the U.S. Supreme Court in Peter v. NantKwest, case number 18-801, struck down the U.S. Patent and Trademark Office’s (USPTO) recent and often-criticized effort to recoup its legal fees – even in cases it loses – because it violates the so-called American Rule, which says U.S. litigants must typically pay for… Continue Reading
Challenging a Trade Secret Injunction? Better Come Loaded For Bear
Posted in Intellectual Property Litigation, IP, Labor & Employment, Trade SecretsOne of the most common forms of relief sought in trade secret litigation is an injunction preventing the defendants from using or disclosing the plaintiff’s trade secret information. Although temporary restraining orders and/or preliminary injunctions may be obtained that are in place during the lawsuit, a permanent injunction is entered after trial and typically has… Continue Reading
Patent Priority Dates Must Be a Priority!
Posted in IP, Patent LawThe priority date of a patent is an important aspect in protecting intellectual property. The priority date is the earliest possible filing date that a patent application is entitled to rely on; it is based on the filing dates of any related patent applications that were filed before the application (the priority chain). This date… Continue Reading
Online Gaming Case Addresses Trigger for One-Year IPR Filing Deadline
Posted in IP, Patent LawWhen sued for patent infringement, a defendant can still petition for inter partes review (“IPR”) of the asserted patent at the United States Patent and Trademark Office (“USPTO”) if the petition is filed within one year of service of the complaint. But, as Game & Technology Co. v. Wargaming (Fed. Cir. 2019) reminds us, a… Continue Reading
OK, BOOMER: Fox Media Seeks Registration of the Viral Phrase From the USPTO
Posted in IP, Trademark LawIf you’re plugged into the digital world and its constantly emerging meme trends, you’ve probably encountered various “OK, Boomer” memes by now. If you’re unfamiliar with the trend, here is a brief synopsis. OK, Boomer is a phrase that is used in response to members of the baby-boomer generation who have, through their conduct, demonstrated… Continue Reading
Order in Netflix Lawsuit is a Reminder of the Bounds of Copyright Protection
Posted in Copyright Law, Entertainment Law, IPVirginia Vallejo, a well known Colombian journalist and media personality, authored the memoir “Loving Pablo, Hating Escobar”. The book is a factual account of her romantic relationship with Pablo Escobar and a chronicle of the rise of the Colombian drug cartel. Vallejo claimed that certain scenes in the television series Narcos infringed the copyright in… Continue Reading
Federal Circuit Holds Administrative Patent Judges Appointments Unconstitutional
Posted in IP, Patent LawIn Arthrex Inc. v. Smith & Nephew Inc. et al., case number 18-2140, the U.S. Court of Appeals for the Federal Circuit recently considered whether the appointment of the Board’s Administrative Patent Judges (“APJs”) by the Secretary of Commerce, as currently set forth in Title 35, violates the Appointments Clause of the U.S. Constitution. The… Continue Reading
What Happens When the Intellectual Property Laws Clash with the Antitrust Laws?
Posted in Copyright Law, IP, Patent Law, Trademark LawShould a company be required to license its patents to a competitor? That’s one question that arises when intellectual property law and antitrust law intersect. The Sherman Act, section 1, prohibits concerted action (agreements, combinations, or conspiracies) that restrain trade. Four types of conduct are per se unlawful; i.e., illegal regardless of the reason. They… Continue Reading
When Does A Patent Expire? Ask the Federal Circuit!
Posted in IP, Patent LawBefore 1995, the term of a U.S. utility patent was 17 years from the day the patent issued. In 1994, the federal statutes were changed to make the patent term 20 years from the effective filing date of the patent application. This change was part of the Uruguay Round Agreements Act and was intended to… Continue Reading
PTAB Invalidates Data Privacy Risk Assessment Patent
Posted in IP, Patent Law, PrivacyMany resources are being devoted to preventing data breaches and protecting privacy. In fact, patents have issued on various approaches. But are those approaches really patentable? In a recent challenge to OneTrust’s patent, which is related to data privacy risk, the Patent Trial and Appeal Board (“PTAB”) found the subject matter patent ineligible. OneTrust’s patent,… Continue Reading
Counterculturalist Banksy to Defend His Intellectual Property in a European Cancellation Proceeding
Posted in Copyright Law, IP, Trademark LawIf you’re familiar with Banksy, you know he’s the epitome of counterculturalism. For those of you who aren’t familiar with Banksy, he is an anonymous England-based street artist, vandal, political activist, and film director who has been active since the 1990s. His satirical street art and subversive epigrams combine graffiti and dark, sometimes morbid, humor…. Continue Reading
Compliance Deadline for California’s New Privacy Act Coming Up Fast; Are You Ready?
Posted in Cyberspace Law, IP, Privacy, Web/TechThe deadline for business to implement compliance with the California Consumer Privacy Act is just around the corner and chances are most businesses are not ready. On June 28, 2018, Governor Brown signed into law the California Consumer Privacy Act of 2018. The Act applies to any business which does business in California, and i)… Continue Reading
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