Why You May Have to Comply with California’s New Noncompete Laws – With a February 14 Deadline

While the enforcement of non-compete clauses (“noncompetes”) varies in jurisdictions across the country, California has a longstanding history of disfavoring them and championing a pro-employee-mobility work environment. Two laws were recently passed – Assembly Bill 1076 and Senate Bill 699 – expanding the scope of California’s prohibition on noncompetes and exposing companies to a heightened risk of liability. Assembly Bill 1076 (“AB 1076”) renders noncompete agreements in California void and implements a notice requirement for current and former employees; and Senate Bill 699 (“SB 699”) entitles employees to new legal remedies. Both laws, summarized below, went into effect on January 1, 2024.

In light of this change, businesses should understand how the laws impact their employment practices and implement strategies to ensure they comply. Moreover, with fewer restrictions on employee mobility post-employment, it is important companies have adequate NDAs and confidentiality agreements in place to protect proprietary information.

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Global Brand Protection – How to Manage an Anti-Counterfeiting Program

For every successful brand, it is critical to properly protect and to productively develop and use the underlying intellectual property (IP) in that brand to ensure its long-term growth.

Trademark and registered design portfolio

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AI Art Registration Denied – The Copyright Review Board Tells Applicant To Gogh Home

Last Fall in this space, we discussed the U.S. Copyright Office’s AI Initiative launched in early 2023. Among other things, the Initiative’s portal compiles registration decisions for AI-generated materials. Particularly instructive is a December 11, 2023 decision by the Copyright Review Board affirming the denial of registration to an AI-generated artwork. As detailed below, when determining the copyrightability of the “SURYAST” work, the Review Board provides practitioners and future applicants with more articulated standards to be applied when a party seeks to register a work that contains AI-generated content.

Background of Work  

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UK Supreme Court rules on AI and Patent Applications

In a much anticipated judgment, the UK Supreme Court delivered on 20 December 2023 its ruling in the case of Thaler v Comptroller-General of Patents, Designs and Trade Marks (Thaler (Appellant) v Comptroller-General of Patents, Designs and Trademarks (Respondent) – The Supreme Court) on whether an artificial intelligence (AI) system can be named as the inventor for a UK patent application.

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A Win for Skinny Labels; Insights for Enforcing Use Patents

Most drugs are covered by multiple patents, with initial patents directed broadly to the compound and later patents directed to increasingly narrower uses of the compound. This provides opportunities for the compound to be approved as a generic drug before expiration of all of the patents, based on a “skinny” label – i.e., a label restricted to uses not covered by the later “use” patents. This strategy is contentious. It provides for competition but sometimes results in infringement due to off-label use of the generic drug – a delicate balance. In the case of H. Lundbeck A/S et al. v. Lupin et al., the Federal Circuit confirmed that an appropriately crafted skinny label cannot be the basis for a finding of infringement. Its ruling may encourage the strategy, but also provides insights for development and enforcement of use patents.

Takeda’s NDA for Trintellix® (vortioxetine)

Trintellix® (vortioxetine) is a drug for treating major depressive disorder in adults by enhancing serotonergic activity in the central nervous system. It was first approved by the U.S. FDA in 2013 under NDA No. 204447. Sales of Trintellix totaled $694 million in 2021. The drug was originally developed by Lundbeck and later licensed to Takeda, who is the holder of the NDA.

The active ingredient of Trintellix® is a salt of vortioxetine. The compound is covered by two patents: US7,144,884 (“the ’884 patent”) and US8,476,279 (“the ’279 patent). The ’884 patent claims the compound and a method of treating an affective disorder with the compound. The ’279 patent claims a pharmaceutical composition comprising the compound, and a method of treating an affective disorder with the pharmaceutical composition. The ’884 patent and the ’279 patent (“the compound patents”) have expiration dates of June 17, 2026, and October 2, 2022, respectively. In this case, Defendants’ ANDAs will only become effective after the expiration of the compound patents.

The Patents-at-Issue in the Litigation

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A Proposed Likeness Law Paves the Way for a New Federal Right of Action

In the age of generative AI, it is easier than ever to make an unauthorized AI replica of our favorite celebrities. Using AI algorithms, deepfake technology can create authentic-looking, fictional reproductions, making it quite difficult to spot the difference between a real and a fake. Many of us see AI generated songs and recordings on the internet every day, but rapid advancements in this technology pose rising threats for well-known performers, as well as ordinary people, who have little control over their digital presence.

Senators hope to pass legislation that would recognize the copyright and right of publicity issues associated with using another person’s voice, image, and likeness without first obtaining consent. On October 12, 2023, a bipartisan group of Senators announced a draft bill called The Nurture Originals, Foster Art, and Keep Entertainment Safe Act, (“NO FAKES Act”). Sponsored by Senators Chris Coons (D-DE), Marsha Blackburn (R-TN), Amy Klobuchar (D-MN), and Thom Tillis (R-NC), the bill’s goal is to regulate the creation and use of digital replicas and provide standardized rules around using the likeness of another.

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How Artificial Intelligence is Changing the Game of Professional Sports

We previously reported that artificial intelligence (“AI”) is changing the landscape of all aspects of our modern economy. The world of professional sports is no exception. Emerging technologies are transforming the games we know and love. From player recruitment to athlete recovery, AI’s integration into sports is opening doors for optimized performance and real-time risk analysis. As more teams and organizations employ the use of AI, counsel should be aware of the ways their clients can and do leverage AI. A critical eye should focus on the relevant legal issues: including both state and federal regulatory developments, data privacy concerns, and how AI tools could potentially affect the applicable intellectual property (“IP”) rights.

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People Don’t Come to See the Tattoo, They Come to See the Show

In Cramer v. Netflix, Inc., 3:22-cv-131 (W.D. Pa. Sep. 18, 2023), the plaintiff brought a lawsuit alleging copyright infringement because a photograph flashed on the screen during the “Tiger King 2” documentary depicted a tattoo of the now famous “Tiger King” (a/k/a “Joe Exotic”), that the plaintiff tattoo artist had inked. Because ownership of original works, like a tattoo, vests with the author (here the tattoo artist), the tattoo artist owned the copyright in the tattoo, even though it was physically on the someone else’s body.

That tattoo in question came about as the result of a contest that the tattoo artist put on during the beginning of the Covid pandemic. Specifically, while on lockdown, she became concerned about her ability to earn income as people were unable to come in for tattoos. As a way to supplement her income, she put on a contest whereby her social media followers would buy gift certificates for future tattoos and would get to vote on one of several funny tattoos that would eventually be tattooed onto the artist’s husband. Ultimately a tattoo of Joe Exotic won the contest.

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Proactive Strategies in IPRs after Allgenesis

A recent Federal Circuit decision, Allgenesis Biotherapeutics Inc. v. Cloudbreak Therapeutics, LLC, provides some interesting insights into patent challenge strategies, and their consequences, when a potentially infringing product is not yet on the market.

Allgenesis, which has been developing a pterygium treatment product using nintedanib, filed an inter partes review (IPR) petition to try to invalidate one of Cloudbreak’s patents relating to pterygium treatment. Allgenesis lost at the Patent Trial and Appeal Board (PTAB), which issued a final written decision upholding the patentability of the challenged claims. The PTAB’s decision included a finding that Allgenesis’s own patent application, on which Allgenesis based a number of its invalidity arguments, was not prior art to the Cloudbreak patent.

Allgenesis appealed to the Federal Circuit, which dismissed the appeal, finding that, although the IPR statute permitted Allgenesis to file the IPR, the law governing appeals to the Federal Circuit (which is an Article III court) did not permit Allgenesis to appeal the PTAB’s IPR decision, because Allgenesis did not have standing.

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Federal Circuit Rules That Mark Cannot Be Cancelled Due To Fraudulent Incontestability Declarations

The Federal Circuit recently issued a decision with important ramifications on how petitions for cancellation due to fraud will be handled by the Trademark Trial and Appeal Board (“Board”) going forward.

In Great Concepts LLC v. Chutter, Inc., the Court, with a 2-1 majority, found that the Board wrongly cancelled the registration of a trademark holder due to the filing of a fraudulent declaration by its former attorney to obtain incontestable status of the trademark “DANTANNA’S.” The Board had historically held that it possesses the authority to cancel registrations altogether due to fraudulent incontestability declarations, thus, the panel’s ruling presents a clear rejection of that practice.

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