In 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
Category Archives: IP
Subscribe to IP RSS FeedIs 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
Federal Circuit Holds That Claim Language Can Limit the Scope of a Design Patent
Posted in IP, Patent LawIn Curver Luxembourg SARL v. Home Expressions Inc., case number 18-2214, the U.S. Court of Appeals for the Federal Circuit recently held that the claim language of a design patent can limit its scope where the claim language supplies the only instance of an article of manufacture that appears nowhere in the figures. Plaintiff Curver… Continue Reading
LinkedIn Profiles and the Applicability of the Computer Fraud and Abuse Act
Posted in Cyberspace Law, IP, Privacy, Web/TechLinkedIn is a popular professional networking website with more than half a billion members. Many of its users, in an effort to enhance their networking capabilities, make their profile public and available to anyone to review their personal details such as their employment, education, skill sets and other personal information. Although LinkedIn disclaims any ownership… Continue Reading
Landlords – Watch out for Trademark-Infringing Tenants!
Posted in IP, Trademark LawLandlords whose tenants sell counterfeit goods can be liable for trademark infringement if they have knowledge of the infringing acts or are willfully blind to the infringement. In Luxottica Group v. Airport Mini Mall, LLC, 932 F.3d 1303 (11th Cir. August 2019), Oakley, Inc. and its parent Luxottica sued the owners of a shopping mall… Continue Reading
Federal Circuit Invalidates Garage Door Opener Patent Because It Is an Abstract Idea
Posted in IP, Patent LawHave you ever driven away from your home and then had that irritating doubt in your mind as to whether you remembered to close your garage door? I know I have. No matter how hard I try to search my brain’s archives, I really don’t remember whether I closed the garage door even though I… Continue Reading
The USPTO Denies Tom Brady’s Application to Register TOM TERRIFIC
Posted in IP, Trademark LawThe USPTO recently refused legendary quarterback Tom Brady’s application to register the mark TOM TERRIFIC. If you’re like me, you’re wondering why Tom Brady would want to register such a trademark. Well, according to Brady, he wanted to obtain the rights to the mark to prevent people from referring to him by that nickname. But… Continue Reading
Supreme Court Ruling In Pirate Ship Copyright Case Could Sink State Immunity
Posted in Copyright Law, IPThe Supreme Court is set to hear the case of Allen v. Cooper which addresses the constitutionality of the Copyright Remedy Clarification Act (“CRCA”). The purpose of the CRCA is to abrogate sovereign immunity enjoyed by States and State actors under the Eleventh Amendment for claims of copyright infringement. The CRCA provides as follows:
Federal Circuit Holds IPR Proceedings on Pre-AIA Patents is Not an Unconstitutional Taking Under the Fifth Amendment
Posted in IP, Patent LawIn CELGENE CORPORATION v. PETER, the Federal Circuit recently affirmed the PTAB’s decisions finding appealed claims obvious. However, more importantly, the Federal Circuit also held that the retroactive application of IPR proceedings to pre-AIA patents is not an unconstitutional taking under the Fifth Amendment. Regarding the constitutional issue of whether the retroactive application of IPRs… Continue Reading
Ninth Circuit Inquiry on Non-Competes Could Have Huge Implications
Posted in IPThe Ninth Circuit recently asked the California Supreme Court to provide it with guidance concerning certain types of non-compete provisions that could have huge ramifications for California’s business environment. In essence, the Ninth Circuit asked the California Supreme Court whether section 16600 of the California Business and Professions Code bars agreements between businesses that place… Continue Reading
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