Ackerman v. Pink asks how much of a written history can be claimed as proprietary by the author of that history. The answer: Not much. It is black letter that the author of a non-fiction work cannot prevent others from using historical facts in some other work – even if those historical facts are known … Continue Reading
The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo has and will continue to alter the legality and enforceability of federal agency rules and regulations related to ambiguous federal statutes. As a reminder, Loper Bright abolished the Chevron doctrine, which instructed courts to give deference to federal agency interpretations of ambiguous statutes. In Loper Bright, the Supreme … Continue Reading
Lost profit damages are notoriously difficult to recover in patent infringement cases. Lost profits damages are recovered in only a small percentage of cases that go to trial. Among the challenges in recovering lost profits under the Panduit test are that the patent owner must prove the absence of acceptable non-infringing alternatives (Panduit factor 2) … Continue Reading
The authors wish to thank Sumaiyah Razzaq for her contributions to this post. Ever since the emergence of generative AI, a major concern for all participants has been the extent to which copyright works can and should be used in training AI models. The application of UK copyright law for this purpose is disputed, leading … Continue Reading
In what may turn out to be an influential decision, Judge Stephanos Bibas ruled as a matter of law in Thomson Reuters v. Ross Intelligence that creating short summaries of law to train Ross Intelligence’s artificial intelligence legal research application not only infringes Thomson Reuters’ copyrights as a matter of law but that the copying … Continue Reading
In January 2025, the Copyright Office released Part 2 of its anticipated three-part series on copyright and artificial intelligence (AI). The report discusses copyrighting works that include AI-generated content and provides guidance for applicants seeking protection of such work. Part 2 emphasizes the importance of “human authorship,” as works purely generated by AI or works … Continue Reading
In a November 6, 2024 opinion in Certain Computing Devices Utilizing Indexed Search Systems and Components Thereof, the U.S. International Trade Commission (“ITC”) held that statements, disclaimers, and positions taken during the prosecution of a later patent apply to the construction and interpretation of the same term in an earlier related patent. Using this standard, … Continue Reading
Earlier this year, as we discussed here, here, and here, the United States Patent and Trademark Office (USPTO or Office) proposed a number of sweeping changes to the Office’s patent fees, including a very steep set of fees for filing terminal disclaimers, later continuation applications, and three or more requests for continued examination (RCEs). The … Continue Reading
For the first time, the U.S. International Trade Commission (“ITC”) has set forth and applied its legal standard for a theft or conversion claim in a Section 337 of the Tariff Act of 1930 investigation. Section 337 gives the ITC broad powers to investigate and address unfair acts in the importation of articles into the … Continue Reading
Mandatory deference to an agency’s rulemaking may be gone, and numerous commentators fear that the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo will drastically alter the legal landscape surrounding agency decisions. But that does not mean that every agency or agency decision is in peril. We explore here the implications of the Loper … Continue Reading
When a patent application is allowed, the claims may not precisely cover everything that the applicant wants to protect. Rather than add new claims after a notice of allowance and prolong prosecution, applicants will commonly file one or more continuation applications to pursue different claims. The continuation has substantially the same specification and drawings as … Continue Reading
As noted in Part I of this series, patent litigation can be a mechanism for parties to spar and evaluate patent rights, as well as each other, prior to making the business agreements that settle such disputes. Once a patent is asserted to be infringed with the filing of a lawsuit, the dispute can become … Continue Reading
The number of patents issuing each year has increased dramatically since the Patent Act of 1952 codified US patent law — from fewer than 50,000 patents issued per year to around 350,000 patents issued per year for the last decade. Yet over the last decade, the number of patent litigations filed has fallen to fewer … Continue Reading
The Summer 2024 Olympics in Paris are underway and while millions of eyes are on the games, the United States Olympic & Paralympics Committee (“USOPC”) has its eyes peeled for trademark infringers. The USOPC serves both the National Olympic Committee and National Paralympic Committee for the U.S. and is responsible for the training and … Continue Reading
The U.S. Patent and Trademark Office continues to seek stakeholder input on AI-generated disclosures and patentability. Earlier this year, USPTO issued a public Request for Comment on the impact of artificial intelligence on prior art, the known understanding of a person of ordinary skill and how this effects patentability, specifically novelty and obviousness of a … Continue Reading
Much like word processing with spell check and other now commonplace digital tools were once only the stuff of science fiction, artificial intelligence (AI) is quickly becoming widespread in knowledge work including law practice. IP law is no exception. The use of AI in IP law practice has practical benefits, including the potential for enhanced … Continue Reading
As discussed in two of our recent blogs (here) and here), the United States Patent and Trademark Office (USPTO or Office) recently proposed substantial patent fee increases for continuing applications and terminal disclaimers. The USPTO is also proposing substantial increases for an applicant to request continued examination of an application whose claims have been rejected, … Continue Reading
As discussed in our previous blog (here), the United States Patent and Trademark Office’s (USPTO) has proposed substantial surcharges for filing continuing applications, depending on the timing of filing. The USPTO is also proposing substantial increases for an applicant to file a terminal disclaimer. As we discuss below, these increases are likely to affect strategies … Continue Reading
Last month, viral AI-generated pornographic pictures of Taylor Swift circulated on X (formerly Twitter), with one post remaining for 17 hours and receiving more than 45 million views, 24,000 reposts, and hundreds of thousands of likes before the verified account was suspended for violating platform policy. The images, allegedly created using a company’s text-to-image tool … Continue Reading
The United States Patent and Trademark Office’s (USPTO) recently proposed patent fee increases could have far-ranging consequences for applicants looking to build a patent family from a single patent application. In this first of a series of blogs, we will discuss the potential consequences of the USPTO’s proposed fee increases for continuing applications, including continuation, … Continue Reading
On March 18, 2024, the United States Patent and Trademark Office (USPTO) issued a Memorandum containing guidance to help patent examiners analyze claim language that may be interpreted as “means-plus-function” or “step-plus-function” language under 35 U.S.C. § 112(f). The USPTO said that the Memorandum was not a change in practice for examiners. Sometimes, however, how something … Continue Reading
Our colleagues at Employment Law World recently blogged about a recent trade secrets decision from the Northern District of California, Apple v. Rivos. The case involved a common fact pattern: numerous employees were hired away from Apple by Rivos and Apple brought claims for trade secret misappropriation (among others). The court dismissed the claims against … Continue Reading
The opportunity to compete at the Olympic Games represents one of the most honorable achievements of any athlete’s career. And while Olympians may have always been trailblazers in the world of sports, today’s competitors are more than just athletes – they are brand ambassadors, marketing representatives, and social media influencers. While an athlete’s ability to … Continue Reading
On September 18, 2023, NetChoice, LLC — a national trade association with members from the tech and social media industry — obtained a preliminary injunction from the District Court for the Northern District of California preventing the State of California from enforcing the California Age-Appropriate Design Code Act (“AADC” or the “Act”). The reason? The … Continue Reading
