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The U.S. Supreme Court has ruled that individual states are free to commit copyright infringement. The Court held that Congress attempted to abrogate states’ sovereign immunity in an unconstitutional manner when enacting the Copyright Remedy Clarification Act of 1990 (CRCA) (codified in 17 U.S.C. §511). See, Allen v. Cooper, No. 18-877, slip op. at 4 (Mar. 23, 2020). Sovereign immunity through the Eleventh Amendment has yet again proven to be a powerful tool for states to avoid intellectual property infringement liability, where private actors would not be so fortunate. Although Congress said that “[a]ny State … shall not be immune, under the Eleventh Amendment … or any other doctrine of sovereign immunity” from copyright infringement and that remedies available for such infringement would be “available … to the same extent as such remedies are available for such a violation … against any public or private entity,” the Court ruled that this language impermissibly abrogated states’ rights. 35 U.S.C. §511.
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By Jonathan Moskin and Rachel Pauley
The emerging cases by authors and copyright owners challenging various generative AI programs for using copyrighted materials are certain to create new troubles for the courts being asked to apply the fair use doctrine to this important new technology.
By Jim Soong
Each decision involves reversal of a prior art rejection and contrasts with the other decisions on subject matter eligibility, revealing different PTAB approaches and results that can inform prosecution and appeal strategies.
By Leanne Rakers and Caley McCarthy
The future of antibody claiming in the United States is uncertain following the U.S. Supreme Court’s May 2023 ruling in Amgen Inc. v. Sanofi, a highly anticipated decision concerning enablement and whether the traditional way to claim antibodies — claiming antibodies by their function — will survive as a valid claiming strategy.
By Mark Liang, Paige Hardy and Grace McFee
Part Two of a Two-Part article
While the last decade has seen a dramatic increase in the number of AI patents, such patents face difficulty in overcoming the patent-eligibility challenges under §101 and Alice. Section 101, however, is not the only hurdles AI patents must overcome. Section 112, with its written description, enablement, and definiteness requirements, presents additional obstacles.