IIP
Showing 49–64 of 336 results
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What constitutes an “exceptional case”? Court adopts new standard for attorneys’ fees in trademark cases
Year End 2021
Newsletter: Ideas on Intellectual Property Law
Price: $225.00, Subscriber Price: $157.50
Word count: 482
Abstract: The U.S. Court of Appeals for the Tenth Circuit has for the first time addressed whether the U.S. Supreme Court’s standard for awarding attorneys’ fees under the Patent Act also applies to such awards under federal trademark law’s Lanham Act. This article summarizes the court’s finding that because the fee provisions in the Patent Act and the Lanham Act are identical, the standard also applies to the Lanham Act. Derma Pen, LLC v. 4EverYoung Limited, No. 19-4114 (U.S. June 8, 2021).
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Heads up! SCOTUS upholds, but limits, assignor estoppel
Year End 2021
Newsletter: Ideas on Intellectual Property Law
Price: $225.00, Subscriber Price: $157.50
Word count: 627
Abstract: It seems like a simple matter of fairness that an inventor who assigns its patent rights can’t later challenge the validity of the underlying patent. But, as the U.S. Supreme Court recently explained, assignors can do just that in certain limited circumstances. This article reviews the case and the ability of assignors to challenge a patent’s validity. Minerva Surgical, Inc. v. Hologic, Inc., No. 20-440 (U.S. June 29, 2021).
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Supreme Court shakes up the PTAB
Year End 2021
Newsletter: Ideas on Intellectual Property Law
Price: $225.00, Subscriber Price: $157.50
Word count: 585
Abstract: A decade after the American Invents Act of 2011 (AIA) brought significant change to the U.S. patent system, the courts and players in the patent regime continue to grapple with some aspects of the law. This article reviews a recent U.S. Supreme Court finding that the Patent Trial and Appeal Board’s administrative patent judges’ power is incompatible with their status as inferior officers. The article also reviews guidance from the U.S. Patent and Trademark Office in the wake of the Court’s holding. U.S. v. Arthrex, Inc., No. 19-1434 (U.S. June 21, 2021).
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Establishing infringement of “thin” copyrights
Year End 2021
Newsletter: Ideas on Intellectual Property Law
Price: $225.00, Subscriber Price: $157.50
Word count: 835
Abstract: The copyright troll, whose business model the U.S. Court of Appeals for the Seventh Circuit has described as an “intellectual property shakedown,” again found its claims under scrutiny by the court. This time, the court took the occasion to clarify what’s necessary for a successful claim of infringement of works with “thin” copyright protection. This article reviews two well-established copyright doctrines: scènes à faire and merger. It looks at how they restrict the ability of infringement plaintiffs to claim expansive intellectual property rights. A brief sidebar details how the copyright troll plaintiff operates. Design Basics, LLC v. Signature Construction, Inc., Nos. 19-2716 (7th Cir. April 23, 2021); Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093 (7th Cir. 2017).
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Establishing “actual use” standard in service mark infringement cases
October / November 2021
Newsletter: Ideas on Intellectual Property Law
Price: $225.00, Subscriber Price: $157.50
Word count: 419
Abstract: The U.S. Court of Appeals for the Tenth Circuit recently faulted a lower court for applying the wrong legal standard when determining whether a service mark infringement plaintiff had actually used the mark. This short article reviews the actual use standard in service mark infringement cases. Underwood v. Bank of America Corp., Nos. 19-1349, -1087 (10th Cir. April 30, 2021).
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When is initial-interest confusion trademark infringement actionable?
October / November 2021
Newsletter: Ideas on Intellectual Property Law
Price: $225.00, Subscriber Price: $157.50
Word count: 610
Abstract: A trademark battle between sellers of adjustable air mattresses led the U.S. Court of Appeals for the Eighth Circuit to put to bed the question of whether it recognizes a trademark infringement theory already accepted by most federal courts of appeal. More than a decade after sidestepping the question, the court confirmed that it views initial-interest confusion as a valid basis for liability. This article examines initial-interest confusion, but notes that the Eighth Circuit made no comment on how such confusion might affect the analysis of remedies and damages. Select Comfort Corp. v. Baxter, No. 19-1113 (8th Cir. May 11, 2021).
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Alice strikes again – Targeted advertising is patent-ineligible
October / November 2021
Newsletter: Ideas on Intellectual Property Law
Price: $225.00, Subscriber Price: $157.50
Word count: 548
Abstract: The U.S. Court of Appeals for the Federal Circuit Court has dispatched yet another patented invention to the wasteland of patent-ineligible abstract ideas under the Alice test. This article summarizes the court’s ruling reaffirming that targeted advertising can’t be patented. Free Stream Media Corp. v. Alphonso Inc., Nos. 19-1506, -2133 (Fed. Cir. May 11, 2021).
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Copyright’s fair use defense – Court clarifies “transformative use” analysis
October / November 2021
Newsletter: Ideas on Intellectual Property Law
Price: $225.00, Subscriber Price: $157.50
Word count: 815
Abstract: In a colorful copyright case involving iconic artists Prince and Andy Warhol, the U.S. Court of Appeals for the Second Circuit agreed with a photographer’s objection to Warhol’s use of her photo of Prince. According to the court, the fair use defense to copyright infringement wasn’t available because Warhol’s series based on the photographer’s photo retains the essential elements of the photo without significantly adding to or altering them. This article summarizes the case, while a short sidebar highlights the proposal by two judges of the U.S. Court of Appeals for the Second Circuit for a different approach to the fair use analysis. The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 19-2420-cv (2d Cir. March 26, 2021).
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Patentee falls short on proving willful infringement
August / September 2021
Newsletter: Ideas on Intellectual Property Law
Price: $225.00, Subscriber Price: $157.50
Word count: 414
Abstract: The U.S. judicial system acknowledges that patent infringement is bad — and willful patent infringement is even worse. So much so that a finding of willful infringement allows a court to increase damages up to three times the amount assessed by the jury. This article reviews a case in which a patentee discovered that willfulness isn’t easy to prove. Bayer Healthcare LLC v. Baxalta Inc., No. 2019-2418 (Fed. Cir. March 1, 2021).
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Can you hear us now? SCOTUS says app developers needn’t reinvent the wheel
August / September 2021
Newsletter: Ideas on Intellectual Property Law
Price: $225.00, Subscriber Price: $157.50
Word count: 674
Abstract: After more than a decade of litigation, the U.S. Supreme Court has resolved a dispute between tech giants in a way that has software developers breathing a sigh of relief. The Court held that the copyright doctrine of fair use permits developers to continue to build off of the work of others in many cases without fear of infringement liability — which, in this case, could have meant billions of dollars in damages. This article summarizes the Court’s broad reading of fair use in the application programming interface context. Google LLC v. Oracle America, Inc., No. 18-956 (U.S. April 5, 2021).
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Functional color scheme isn’t protected trade dress
August / September 2021
Newsletter: Ideas on Intellectual Property Law
Price: $225.00, Subscriber Price: $157.50
Word count: 517
Abstract: A product’s trade dress — the design and shape of the product or its packaging — isn’t subject to trademark protection if it is deemed functional. The word “functional” may conjure visions of parts and components, but courts can find a product’s color functional, too. This short article reviews a case involving dental products that involved just this question. Sulzer Mixpac AG v. A&N Trading Co., No. 19-2951 (2d Cir. Feb. 18, 2021)
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Don’t copy that – Lack of implied license results in copyright infringement
August / September 2021
Newsletter: Ideas on Intellectual Property Law
Price: $225.00, Subscriber Price: $157.50
Word count: 870
Abstract: The Internet continues to generate new twists and issues in copyright law, forcing courts to apply traditional legal concepts to technologies not contemplated when the Copyright Act was enacted. In one recent case, the U.S. Court of Appeals for the Eleventh Circuit considered whether the publication of material on a blog or “really simple syndication” (RSS) feed granted an implied license to use the material. This article reviews why the court found that the plaintiff’s conduct didn’t constitute consent to an implied license. A brief sidebar summarizes why the court refused to reverse the jury’s rejection of the defendant’s fair use defense. MidlevelU, Inc. v. ACI Information Group, No. 20-10856 (11th Cir. March 3, 2021); Latimer v. Roaring Toyz, Inc. (2010).
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Language matters: Grammar guides court’s patent interpretation
June / July 2021
Newsletter: Ideas on Intellectual Property Law
Price: $225.00, Subscriber Price: $157.50
Word count: 435
Abstract: Grammar nerds can delight in a new ruling from the U.S. Court of Appeals for the Federal Circuit, which hears all appeals involving patent litigation. Asked to interpret the meaning of the phrase “a plurality of” when it precedes a list of components in a patent, the court relied in part on a source likely to be found on the bookshelf of every English major at some point. This short article covers the court’s finding of noninfringement based on the meaning of the phrase “a plurality of.” SIMO Holdings Inc. v. Hong Kong uCloudlink Network Technology Ltd., No. 2019-2411 (Fed. Cir. Jan. 5, 2021).
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Federal Circuit diverges from PTAB on analogous art ruling
June / July 2021
Newsletter: Ideas on Intellectual Property Law
Price: $225.00, Subscriber Price: $157.50
Word count: 629
Abstract: As patent owners are well aware, sometimes overcoming invalidating prior art can be difficult. Prior art — which makes an invention known and/or obvious, and therefore unpatentable — includes existing patents that are “analogous art.” But what makes an existing patent analogous? This article reviews a case from the U.S. Court of Appeals for the Federal Circuit, which handles all patent-related appeals, that explains the concept of analogous art. Donner Technology, LLC v. Pro Stage Gear, LLC, No. 20-1104 (Fed. Cir. Nov. 9, 2020).
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Take two – Court revives trademark infringement claim
June / July 2021
Newsletter: Ideas on Intellectual Property Law
Price: $225.00, Subscriber Price: $157.50
Word count: 622
Abstract: Using the exact words of a competitor’s trademark in a mark would pretty clearly constitute infringement, but a trial court evaluating such a situation disagreed. However, on review of what it described as a “somewhat unusual” trademark case, the U.S. Court of Appeals for the Second Circuit didn’t concur, based on several factors. This article reviews the court’s discussion of the likelihood of confusion test as it applied to the facts. Car-Freshner Corp. v. American Covers, LLC, No. 19-2750 (2d Cir. Nov. 19, 2020).
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Oh, the places you won’t go – Fair use defense fails for mashup
June / July 2021
Newsletter: Ideas on Intellectual Property Law
Price: $225.00, Subscriber Price: $157.50
Word count: 850
Abstract: The fair use defense to copyright infringement traces its roots back to an 1841 case involving the use of George Washington’s writings for a biography. To say things have become more complicated is an understatement, as demonstrated by a recent fair use case that considered a “mashup” combining elements of Dr. Seuss with elements of the TV show “Star Trek.” This article reviews the case and the fair use defense, while a short sidebar reveals why the plaintiff lost its trademark claim. Dr. Seuss Enterprises, L.P. v. ComicMix LLC, No. 19-55348 (9th Cir. Dec. 18, 2020).