When entering into contracts, parties commonly include forum selection clauses to govern future litigation between the parties. When doing so, parties need to actively consider whether they intend that forum selection clause to prohibit filing petitions, such as petitions for inter partes review of patents, with the United States Patent and Trademark Office’s Patent Trial and Appeal Board (“PTAB”). The Court of Appeals for the Federal Circuit has generally recognized that parties can bargain away these rights, including through forum selection clauses in contracts. This issue recently arose in Nippon Shinyaku v. Sarepta. Continue Reading Be Careful Not to Unintentionally Bargain Away the Right to File IPRs

In this episode of The Briefing by the IP Law Blog, Scott Hervey and Josh Escovedo discuss the U.S. Copyright Office’s refusal to register a copyright for a piece of artwork created by Artificial Intelligence. Continue Reading The Briefing by the IP Law Blog: Copyright Office Rejects Application for A.I. Created Art Work

The United States Copyright Office has refused to register a copyright for a work of art created by a machine.

The work of art is a two-dimensional picture that is mostly dark and sort of looks like a painting. It is a view looking towards a series of two archways over railroad tracks, with walls along the sides covered in very dark green, purple, blue, and pink foliage, with a tiny bit of blue and cloudy sky above. The title is “A Recent Entrance to Paradise.” The work was created by a machine called “Creativity Machine” and was submitted for copyright registration in 2018 by Steven Thaler. Continue Reading Is Machine-Made Art Copyrightable?

In this episode of The Briefing by the IP Law Blog, Scott Hervey and Josh Escovedo discuss Nike’s attempt to stop StockX from selling NFT’s of Nike sneakers. Continue Reading The Briefing by the IP Law Blog: Nike Tries to Stomp Out StockX’s Attempt to Sell NFTs of Nike Sneakers

This column previously addressed the case of Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., when it was decided by the Ninth Circuit about two years ago. Unicolors is the owner of copyrights in various fabric designs, including a 2011 copyright registration that consisted of 31 separate designs. Unicolors sued H&M for copyright infringement when H&M stores began selling a jacket and skirt that contained artwork that Unicolors claimed to be identical to one of the designs in its 2011 registration. The jury found in Unicolors favor and H&M moved the court for judgment as a matter of law, which the trial court denied. On appeal, the Ninth Circuit disagreed with the district court and ruled that because Unicolors had made a mistake of law in connection with the registration (i.e. it registered it as a single publication when some of the designs were apparently not put on sale to the public all at once), the registration should have been found to be invalid. Unicolors appealed this decision to the U.S. Supreme Court, which heard the case last November. Continue Reading Is that Bird A Cardinal or a Scarlet Tanager? Who Cares. The U.S. Supreme Court Weighs in on Copyright Infringement and the Issue of Mistake