In 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 their own lawyers.

The Patent Act creates two mutually exclusive pathways to challenge an adverse decision by the USPTO. The first permits judicial review by direct appeal to the United States Court of Appeals for the Federal Circuit. There is “no opportunity for the applicant to offer new evidence” in a §141 proceeding, and the Federal Circuit “must review the PTO’s decision on the same administrative record that was before the [agency].”
Continue Reading U.S. Supreme Court Strikes down USPTO’s Request for Attorney’s Fees

Just over two months ago, Sacramento’s beloved Firestone Public House was sued by multinational conglomerate Bridgestone Brands, LLC for trademark infringement, trademark dilution, and unfair competition based upon Firestone’s use of the FIRESTONE mark. I initially found this dispute to be quite interesting in light of what I appeared to be vastly different groups of

By Audrey Millemann

California’s unfair competition and consumer protection laws protect consumers from false representations about products or services.  These laws include the Unfair Competition Law (Business and Professions Code §17200, et seq.), the False Advertising Law (Business and Professions Code §17500, et seq.), and the Consumer Legal Remedies Act (Civil Code §1750). 

Representing copyright Scott-Hervey-10-webowners attempting to enforce online infringement is often routine, but can sometimes prove challenging. This tends to be the case when a content owner is trying to address large scale infringement of one or multiple works. Most often ISPs are cooperative, but on occasion an ISP may resist responding to a content owner when the owner is represented by an organization like Rightscorp — often referred to as “copyright trolls.” Based on the recent ruling by the Eastern District Court of Virginia against Cox Communications, an ISP is taking a huge risk ignoring infringement notices sent by Rightscorp or any similar organization.

In December of 2014, music publishers BMG Rights Management US, LLC and Round Hill Music LP sued Cox Enterprises Inc. for contributory and vicarious copyright infringement. In the complaint the music publishers allege that the ISP waived its immunity from copyright infringement liability under the Digital Millennium Copyright Act (“DMCA”) by disregarding numerous takedown notices sent on their behalf by their agent, Rightscorp, and otherwise failing to terminate the accounts of repeat infringers.

The DMCA was enacted in 1998 to implement the World Intellectual Property Organization Copyright Treaty and to update domestic copyright law for the digital age. In particular, the DMCA established a series of four “safe harbors” that allow qualifying Internet service providers to limit their liability for claims of copyright infringement based on (a) “transitory digital network communications,” (b) “system caching,” (c) “information residing on systems or networks at [the] direction of users,” and (d) “information location tools.” 17 U.S.C. §§ 512(a)-(d). To qualify for protection under any of the safe harbors, the ISP must, among other requirements, adopt and implement a “repeat infringer” policy that provides for the termination of account holders.


Continue Reading ISPs That Ignore Notices From “Copyright Trolls” Risk Losing DMCA Safe Harbor Protections