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In this week’s episode of The Briefing from the IP Law Blog, Josh Escovedo and Scott Hervey discuss an update to the litigation over Andy Warhol’s series of portraits of the artist Prince (Andy Warhol Foundation v Goldsmith). They provide a recap of last week’s episode, which covers the Second Circuit decision in favor of Goldsmith, the photographer whose image Warhol used to create the Prince Portraits, and the holding that Warhol’s renditions were not transformative enough to be fair use. That decision overturned a lower court decision in favor of the Warhol Foundation.
Continue Reading The Briefing by the IP Law Blog: Andy Warhol’s Prince Prints – Not Fair Use!? (Part Two)

5-4 Opinion Offers Judicial Workaround by Giving More Oversight to the USPTO Director

In U.S. v. Arthrex, case number 19-1434; Smith & Nephew v. Arthrex, case number 19-1452; and Arthrex v. Smith & Nephew, case number 19-1458, the Supreme Court of the United States recently held that Patent Trial and Appeal Board (PTAB) judges are unconstitutionally appointed.  But, the Court also held that providing the Director of the United States Patent and Trademark Office (USPTO) with more oversight over PTAB rulings will remedy the unconstitutionality of the PTAB judges.Continue Reading Supreme Court Finds PTAB Judges Unconstitutional

A party accused of infringing a patent may challenge the validity of the patent in the federal court infringement litigation or in separate administrative proceedings in the Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB). One of the methods available in the PTAB is an inter partes review (IPR), which was created by the America Invents Act.

In order to file a petition for IPR, the challenger must argue that some or all of the claims of the patent are invalid on certain grounds, including novelty and nonobviousness, and must show that there is a “reasonable likelihood” that they will prevail on at least one claim.  The statutes require that a petition for IPR be filed within one year of the challenger being served with a complaint for patent infringement.  35 USC section 315(b).   The PTAB reviews the petition and decides whether to institute IPR.  The decision whether to institute IPR is not appealable.  35 USC section 314(d). 
Continue Reading Supreme Court Limits Appeals to Prevent More Bad Patents

The Supreme Court is set to hear the case of Allen v. Cooper which addresses the constitutionality of the Copyright Remedy Clarification Act (“CRCA”). The purpose of the CRCA is to abrogate sovereign immunity enjoyed by States and State actors under the Eleventh Amendment for claims of copyright infringement. The CRCA provides as follows:
Continue Reading Supreme Court Ruling In Pirate Ship Copyright Case Could Sink State Immunity

The Supreme Court has agreed to resolve a circuit split over when a court can order the payment of an infringer’s profits to a successful plaintiff as a measure of damages.  The matter comes to the Supreme Court as an appeal from the Second Circuit decision in Romag Fasteners Inc. v. Fossil Inc. et al.  In that case, the jury at the lower court found that Fossil had infringed Romag’s patent and trademark rights in a magnetic snap closure and made an advisory award that included an award of $6.7 million of Fossil’s profits for trademark infringement.
Continue Reading Supreme Court Decision Will Have Huge Economic Impact on Trademark Infringement Damages