Unicolors, Inc. creates and markets artistic design fabrics to various garment manufacturers.  Some of these designs are marketed to the public and placed in its showroom while other designs are considered “confined” works that Unicolor sells to certain customers. Unicolors withholds marketing them to the general public for a set period of time. In order to save money, Unicolors often times groups various designs into a “single work” when filing with the U.S. Copyright office for copyright registration.  The Ninth Circuit in Unicolors v. H&M Hennes & Mauritz (May 29, 2020), recently addressed whether this practice, grouping both public and “confined” works into a single registration application, creates a valid copyright that Unicolors could enforce. Continue Reading “Birds of a Feather” – The Ninth Circuit Confronts “Single Unit of Publication” Copyright Issue

The United States Patent and Trademark Office has established a new program for prioritized examination for patent applications for inventions related to COVID-19 and for trademark applications for marks used for certain medical products and services used in connection with COVID-19.

On May 7, 2020, the Director of the PTO announced the program for patent applications.  The program applies to products and processes related to the COVID-19 pandemic, specifically, to those subject to FDA approval for COVID-19 use, including investigational new drug applications, investigational device exemptions, new drug applications, biologics license applications, pre-market approvals, and emergency use authorizations.

To participate in the program, the patent applicant must be a small or micro entity.  The fees typically charged by the PTO for prioritized examination will be waived for qualifying patent applications.  If the patent application qualifies, the PTO will examine the application and reach a final determination within 12 months, and, in some cases, within six months.  The patent application program is limited to the first 500 applications, although the program may be extended.

On June 15, 2020, the Director of the PTO announced a similar program for trademark applications.  The program applies to marks for a product or service that is subject to FDA approval for COVID-19 use or a medical or medical research service for the prevention or treatment of COVID-19.  An applicant must file a petition to qualify for the prioritized examination.  The PTO will waive the fees for these petitions.

According to the Director, the goal of the prioritized examination programs is to “help to bring important and possibly life-saving treatments to market more quickly.”

And we can all hope for that!

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.