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Order in Netflix Lawsuit is a Reminder of the Bounds of Copyright Protection

Posted in Copyright Law, Entertainment Law, IP

Virginia 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 Law

In 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 Law

Should 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

PTAB Invalidates Data Privacy Risk Assessment Patent

Posted in IP, Patent Law, Privacy

Many 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 Law

If 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/Tech

The 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 Law

In 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/Tech

LinkedIn 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

Federal Circuit Holds IPR Proceedings on Pre-AIA Patents is Not an Unconstitutional Taking Under the Fifth Amendment

Posted in IP, Patent Law

In 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 IP

The 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

Rule Change Requires U.S. Counsel for Foreign-Domiciled Trademark Applicants

Posted in IP, Trademark Law

The United States Patent and Trademark Office (the “USPTO”) explains that “A trademark is a brand name. A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate… Continue Reading

Goodbye Majestic Yosemite Hotel, Welcome Back Ahwahnee Hotel

Posted in Intellectual Property Litigation, IP

A few years ago, when the concessionaire for Yosemite National Park (the “Park”), Delaware North, was informed that the Park planned to consider other concessionaires, such as Aramark, Delaware North responded in shocking fashion. Delaware North responded that if it was going to be replaced as the concessionaire, it intended to take the Park’s intellectual… Continue Reading

Supreme Court Decision Will Have Huge Economic Impact on Trademark Infringement Damages

Posted in Intellectual Property Litigation, IP, Trademark Law

The Supreme Court has agreed to resolve a circuit split over when a court can order the payment of an infringer’s profits to a successful plaintiff as a measure of damages.  The matter comes to the Supreme Court as an appeal from the Second Circuit decision in Romag Fasteners Inc. v. Fossil Inc. et al. … Continue Reading

Federal Circuit Sets Higher Standard for Early Alice Motions

Posted in Intellectual Property Litigation, IP, Web/Tech

In Cellspin Soft, Inc. v. Fitbit, Inc. et. al., the Federal Circuit recently held that a lower court wrongly invalidated four patents under Alice because they contain an inventive concept.  The four patents at issue share the same specification and generally relate to connecting a data capture device, e.g., a digital camera, to a mobile… Continue Reading

Web Domains and The Forgotten Tort of Trespass to Chattels

Posted in Intellectual Property Litigation, IP, Web/Tech

California case law over the last few years is replete with instances where a new and/or small business has one of their employees take responsibility for various IT activities such as setting up the company website and/or email domains.  Disputes arise when that employee leaves for other employment and refuses to give the former employer… Continue Reading

When is an Invention Obvious?

Posted in IP, Patent Law

To be patentable, an invention must satisfy two key requirements, as determined by the U.S. Patent and Trademark Office (PTO).  First, the invention must be novel.  This means that the same invention cannot have been disclosed in a single prior art reference.  The prior art is all of the publicly available information that existed before… Continue Reading

Supreme Court: Federal Government Cannot Challenge Patents in PTAB

Posted in Intellectual Property Litigation, IP, Patent Law

The validity of a patent can be challenged in four different types of proceedings: ex parte reexamination, inter partes review, post grant review, and covered business method review. An ex parte reexamination is initiated by any person or by the PTO’s director to request that the PTO internally reexamine the claims of the patent based… Continue Reading

Potential Copyright Owners Beware: Make Sure Your Copyright Registrations Are Accurate!

Posted in Copyright Law, IP

Normally, a copyright registration certificate constitutes “prima facie evidence of the validity of a copyright and of the facts stated in the certificate.”  17 U.S.C. §410(c).  But what happens if that certificate contains knowingly inaccurate information? The purported copyright owner could face not only invalidation of the copyright, but the inability to pursue copyright infringement… Continue Reading