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Courts have said time and again that the fair use doctrine may be “‘the most troublesome in the whole law of copyright.’” See, e.g., Oracle Am., Inc. v. Google Inc., 886 F.3d 1179, 1191 (Fed. Cir. 2018) [internal citations omitted], rev’d on other grounds, 141 S. Ct. 1183 (2021). 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. Several such cases to date have received considerable publicity, including two class actions by Michael Chabon, Ta-Nehisi Coates and others, Chabon v. OpenAI Inc., No. 3:23-cv-04625 (N.D.Cal.) and Chabon v. Meta Platforms Inc., No. 3:23-cv-04663, (N.D.Cal.); another class action involving several best-selling authors, Authors Guild v. OpenAI Inc. No. 1:23-cv-08292 (S.D.N.Y.), and another class action including Sarah Silverman, Kadrey v. Meta Platforms Inc., No. 3:23-cv-03417 (N.D.Cal).
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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.
By Gregory D. Len and Rachel Sullivan
The USPTO has created or expanded several programs to promote the development of sustainable energy. For patent owners and inventors in the energy sector, these programs can provide a financial and administrative edge for the development and protection of their intellectual property, as well as play a beneficial role their overall IP strategy.