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In a dramatic Sunday morning hearing (conducted remotely via telephone), lawyers for TikTok and the Trump Administration battled over whether the government’s order banning TikTok from the Apple and Google app stores would take effect that night.

The Trump Administration has argued for months that TikTok is a threat to national security because its corporate owner, ByteDance, is a Chinese company. Most recently, the Commerce Department issued rules, which were to take effect on September 27 at 11:59pm, banning the app from U.S. app stores and prevented any further software updates. TikTok filed a lawsuit earlier this month challenging the Trump Administration’s actions. On September 23, it filed a motion for preliminary injunction, essentially asking the Court to stop the Commerce Department’s ban from taking effect.
Continue Reading The Courts Step in to Protect TikTok from the Trump Administration

When it comes to football, I am a huge fan and love watching games on TV.  However, I do not typically pay attention to the commercials during games, with one major exception:  the Super Bowl.  Like most everyone, I am always curious to see which company will have the best and the worst Super Bowl commercials.  We always expect Anheuser-Busch (maker of Bud Light) and Molson Coors (maker of Miller Lite and Coors Lite) to bring out big gun ads.  After all, for many football fans, a game day means grabbing a beer (or several), so companies spend a lot of money to convince fans to grab their brands over others.  The competition rose to a new level in Super Bowl LIII when Anheuser-Busch introduced its ad campaign mocking Molson Coors’ use of corn syrup in brewing Miller Lite and Coors Lite.  These ads not only triggered a social media battle but also a battle in the courtroom over whether the Bud Lite ads constituted false or misleading advertising.

During the 2019 Super Bowl, Anheuser-Busch started its “corn syrup” ad campaign with an ad featuring the Bud Light King and his subjects trying to return a barrel of corn syrup, which they had received by mistake, to the Miller Light and Coors Light castles.  The ad effectively told a story that Anheuser-Busch does not use corn syrup to make Bud Light, but Molson Coors uses it to make Miller Lite and Coors Lite.
Continue Reading Football, Beer, and Court Fights

The case of Egenera, Inc. v. Cisco Systems, Inc. raised the question of whether inventors named on a patent can be repeatedly changed as litigation strategy changes. Because of judicial estoppel, the district court said no way.  But, on appeal, the Court of Appeals for the Federal Circuit said no problem—at least no problem in this case.

Mr. Shulter was listed as an inventor on Egenera, Inc.’s (“Egenera”) patent application and the resulting patent, U.S. Patent No. 7,231,430 (the “’430 Patent”).  The ‘430 patent relates to “a platform for automatically deploying a scalable and reconfigurable virtual network” of processors.  The claimed approach alleviates the need for physical reconfiguration of processors by allowing “processing resources [to] be deployed rapidly and easily through software.”
Continue Reading No Judicial Estoppel in the Case of the On-Again, Off-Again Patent Inventor

A new temporary pilot program in the US PTO will speed up appeals in patent applications before the Patent Trial and Appeal Board (PTAB). The program, which went into effect on July 2, 2020, is called the “Fast Track Appeals Pilot Program.” The program is limited to 125 appeals per quarter.

The PTO instituted the pilot program because of the popularity of its Track I Prioritized Examination Program for patent applications. Under that program, an applicant can petition the PTO for expedited prosecution when filing a new application by paying an extra fee and limiting the number of claims. The Track I program is limited to 12,000 applications per year, and has been very successful. In 2019, 2.7% of the applications filed were under the Track I program.
Continue Reading New Fast Track for Patent Appeals

In Kirk Kara Corp. v. Western Stone & Metal Corp. et al, 2-20-cv-01931 (CDCA 2020-08-14, Order) (Dolly M. Gee), the Central District of California denied Defendant’s motion to dismiss Plaintiff’s claims for copyright infringement, finding sufficient substantial similarity between the copyrighted works and the accused works had been alleged. However, the Court granted Defendant’s motion to dismiss Plaintiff’s DMCA § 1202 claim because plaintiff failed to allege Defendant’s works were exact copies of Plaintiff’s, thus reasoning substantial similarity was not sufficient under the DMCA because DMCA violations exist only where the works are identical.

In the case, Plaintiff Kirk Kara Corp. asserts it is the owner of three registered copyrights for jewelry designs (“Subject Designs”), and alleges they were widely disseminated in the jewelry industry. Plaintiff further alleges that Defendant Western Stone and Metal Corp., doing business as Shane Co., distributed and/or sold four engagement rings (“Subject Products”) that are substantially similar to Plaintiff’s copyrighted jewelry designs. Plaintiff alleged copyright infringement, vicarious copyright infringement, contributory copyright infringement, and a violation of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 1202 against Defendant. Defendant moved to dismiss all claims.
Continue Reading District Court Applies Different Requirement for Similarity of Accused and Asserted Works Under DMCA Versus the Copyright Act