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The USPTO Speaks on Obviousness – Do Patent Practitioners Have an Answer?

The United States Patent and Trademark Office (USPTO) recently published updated guidance emphasizing a very flexible approach to determining obviousness under 35 U.S.C. § 103, consistent with the U.S. Supreme Court’s opinion in KSR v. Teleflex. The guidelines are written for USPTO personnel but combined with the Manual of Patent Examining Procedure (MPEP), they provide … Continue Reading

Did the Supreme Court Rule that the Copyright Act Bars Damages for Old Infringement – Or Was It Just Sloppy Drafting? 

It seems the Supreme Court will decide (again) whether a claim for copyright infringement can extend to infringement that occurred more than three years before filing suit. In Warner Chappell Music, Inc. v. Nealy, the Supreme Court will resolve a classic circuit split – the Second Circuit holding that no damages can be obtained for … Continue Reading

Proposed Amendments to FRCP 26 Should Streamline Discovery

On August 15, 2023, the Committee published proposed amendments to Rules 16 and 26 of the Federal Rules of Civil Procedure (“Rules”). The amendments are designed to require that parties address and agree on discovery issues regarding privilege and work product protections at the Rule 26(f) Conference. This is a welcome change that should both … Continue Reading

Podcast: SPB’s Joe Grasser Covers Art Appropriation with INDICAM

 Blog editor and partner in our IP group, Joe Grasser, covers one of the year’s most intriguing IP cases, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith et al, Case No. 21-869, as part of INDICAM’s podcast series “IPxSUMMER 2023 around the world”.  As many will recall, SCOTUS recently upheld a ruling that an … Continue Reading

Trademark Litigation in the Post-Abitron World: District Court Rules That the Supreme Court’s Decision Does Not Preclude Plaintiff from Introducing Evidence of Foreign Sales

As we recently covered in this space, the Supreme Court in Abitron Austria GmbH et al. v. Hetronic International, Inc. held that Sections 1114(1)(a) and 1125(a)(1) of the Lanham Act are not extraterritorial and extend only to claims where the infringing use in commerce is domestic. We anticipated that district courts would soon be addressing … Continue Reading

Limiting the Reach of the Lanham Act: Supreme Court Vacates Substantial Monetary Damages Award Based On Foreign Conduct

The authors wish to thank Summer Associate Will Baker (Cleveland) for his work on this timely blog.  Trademark owners take note: In Abitron Austria GmbH et al. v. Hetronic International, Inc. the Supreme Court definitively ruled that Sections 1114(1)(a) and 1125(a)(1) of the Lanham Act are not extraterritorial and extend only to claims where the … Continue Reading

Central District of California:  Test Buys Do Not Create Specific Jurisdiction

A plaintiff has always been the “master” of a complaint, but such mastery is not unfettered. Principles of subject matter jurisdiction, proper venue, and personal jurisdiction restrict a plaintiff’s choice of forum. A trend of recent cases from the Supreme Court down through the lower courts continue to narrow that “mastery” that a plaintiff once … Continue Reading

The Nine Greatest Experts on the Internet, NOT! – The Supreme Court Considers the Algorithm in Google and Twitter

“You have the Truman Show versus a horror show,” said litigation legend Lisa Blatt during oral arguments in Gonzalez v. Google. Gonzalez is one of two cases recently decided by the Supreme Court dealing with the imposition of liability on websites that host user-generated content (UGC) for the actions of their users. But more broadly, … Continue Reading

Ninth Circuit Holds that Registration of a Single Photography Database Supports Award of Statutory Damages for Each Individual Photo in the Database

Reasoning that the form of a copyright registration does not really matter, the Ninth Circuit recently affirmed a district court’s ruling that real estate photography provider VHT was entitled to statutory damages for 2,700 photos infringed by Zillow even though VHT had registered all of the works at issue as part of a single database. … Continue Reading

Supreme Court Holds Warhol’s “Orange Prince” Not Transformative, Not Fair Use

The Supreme Court recently upheld an appellate court’s ruling that Andy Warhol’s use of a photograph of Prince as a reference for a collection of screen prints is not fair use – to the extent his foundation decided to license them at least. In the weeks that followed, the Supreme Court’s decision in Andy Warhol … Continue Reading

Rulemaking at the US Patent Office: Does Director Guidance On Discretionary Denials of Review Require Opportunity for Public Comment?

The Federal Circuit has refused to uphold the dismissal of a complaint alleging that the Director of the Patent and Trademark Office (PTO) improperly issued instructions to PTAB judges regarding whether to institute requested patent review proceedings. The complaint alleges that the so-called Fintiv factors – initially set forth in two opinions designated by the … Continue Reading

Will Patents Become More Political? The PTO Begins to Implement Arthrex

In United States v Arthrex, the Supreme Court held that 35 U.S.C. §6(c), which sets forth the authority of Patent Trial & Appeal Board (“PTAB”) Administrative Patent Judges (“APJs”), is unconstitutional because APJs effectively wield the power of principal officers (who require Senate confirmation) while being appointed as inferior officers (who do not require Senate confirmation) … Continue Reading
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