What was once illegal is now a thriving industry. That’s right—I’m talking about cannabis. But my initial statement isn’t entirely accurate. Although Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington have legalized cannabis, the drug remains a Schedule I narcotic under the federal Controlled Substances Act. While buying, selling, and using cannabis is legal under state law in certain jurisdictions, such conduct is arguably a federal crime in every jurisdiction due to the Controlled Substances Act. It’s a lot to take in, and it gives rise to numerous issues and questions concerning our government’s federalist system. But you all know this blog focuses on intellectual property, so by now I’m sure you’re wondering: what’s the significance to intellectual property of the dichotomy between the way federal and certain state law treats cannabis? Well, to oversimplify the problem, it means that businesses in the cannabis industry are without federal intellectual-property rights, which are by far the most powerful and expansive intellectual-property rights in the country. Continue Reading Navigating the Hazy Intersection of Federal and State Law on Cannabis and Advising Clients on Protecting Their Trademarks

What was once illegal is now a thriving industry. That’s right—I’m talking about cannabis. But my initial statement isn’t entirely accurate. Although Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington have legalized cannabis, the drug remains a Schedule I narcotic under the federal Controlled Substances Act. While buying, selling, and using cannabis is legal under state law in certain jurisdictions, such conduct is arguably a federal crime in every jurisdiction due to the Controlled Substances Act. It’s a lot to take in, and it gives rise to numerous issues and questions concerning our government’s federalist system. But you all know this blog focuses on intellectual property, so by now I’m sure you’re wondering: what’s the significance to intellectual property of the dichotomy between the way federal and certain state law treats cannabis? Well, to oversimplify the problem, it means that businesses in the cannabis industry are without federal intellectual-property rights, which are by far the most powerful and expansive intellectual-property rights in the country. Continue Reading Navigating the Hazy Intersection of Federal and State Law on Cannibis and Advising Clients on Protecting Their Trademarks

In Ferring Pharmaceuticals Inc. et al v. Serenity Pharmaceuticals, LLC et al, 1-17-cv-09922 (SDNY 2020-05-27, Order), Chief Judge C.J. McMahon of the Southern District of New York ordered an upcoming bench trial set to begin on July 6, 2020 in a patent infringement case to be “all remote,” at least in the sense that at a minimum all the witnesses will testify remotely.

Judge McMahon stated that the decision to go “all remote” was “a no-brainer.”  The Judge reasoned that under the protocols the Southern District of New York was adopting, individuals who have traveled abroad in the preceding two weeks would not be permitted to enter the courthouse.  And, it was noted that in this case there would be at least five or six witnesses — about half of the fact witnesses, and all but one non-expert — who would be traveling in from Europe. Putting to one side the issue of whether they could get into the United States at all — which just introduces additional uncertainty in a situation where no more is needed — Judge McMahon noted that they would have to arrive in New York by June 22 just so they could quarantine for two weeks before they would be allowed into the courthouse.

Thus, Judge McMahon determined that “given all the constraints, the witnesses should testify from where they reside. I will have read their directs and the expert reports. I can watch their crosses. Every witness for both sides gets the same benefit and suffers from the same perceived handicaps. It is the fairest way to proceed.”

As for the attorneys, Judge McMahon stated that is was up to them whether they would prefer to cross examine remotely or from the courtroom.  However, Judge McMahon made clear that both sides needed to come to an agreement because the Court “will not have just one side’s lawyers in the courtroom.”  Judge McMahon did state that she also might consider having lead trial counsel come to court after all the witness testimony to have “a real bench trial closing argument,” but strongly discouraged bringing a lot of people to court for such a closing argument.

Judge McMahon then outlined some of the other procedures for trial, such as using a dedicated computer on which she can watch the testimony that will have no connection to the court’s secure intranet, shipping of sealed exhibit binders to witnesses, possibly having an attorney present with witnesses during their testimony, and not breaking exhibit seals or showing exhibits to witnesses prematurely.

In sum, this case is an example of a Court working as hard as it can to continue moving cases and trials forward in these difficult times as best as possible while still striving to ensure fairness in the process.

(This article was republished with permission by ABA Business Law Today on 6/2/2020, available here.)

Certain literary or graphic characters may, in some cases, enjoy copyright protection. Think James Bond – or Batman and even his Batmobile.  Recently, the Ninth Circuit was called upon to determine whether the Moodsters, “anthropomorphized characters representing human emotions,” are subject to the same copyright protection as Batman.  Sadly, the Ninth Circuit concluded they do not.

The Moodsters were created by an expert on children’s emotional intelligence and development, Denise Daniels. She created the Moodsters to “help children cope with strong emotions like loss and trauma.”  In 2005, Ms. Daniels and her team released an initial product called The Moodsters Bible.  The Moodsters Bible told the story of five characters who were “color-coded anthropomorphic emotions” that represented a different emotion: pink–love, yellow-happiness, blue-sadness, red-anger and green-fear. Two years later, Ms. Daniels and her team released a 30-minute television pilot featuring the Moodsters called, “The Amoodsment Mixup.”  In 2015, Ms. Daniels and her team had developed a line of toys and books featuring the Moodsters that were sold at Target and other retailers. Continue Reading Inside Out: The Ninth Circuit Holds The Moodsters are No Batman

Eventually, it was bound to happen. A patent application was filed by a machine. Well, not exactly. A human being filed a patent application naming a machine as the inventor.

The machine was an artificial intelligence machine described as a “creativity machine.” Its name was listed as “DABUS Invention Generated by Artificial Intelligence.” The invention was called “Devices and Methods for Attracting Enhanced Attention.” Continue Reading No, Machines Cannot Be Inventors!