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The Intellectual Property Strategist
Director Vidal’s Impact On the PTAB: Big Changes and More On the Way
Jennifer Bush
Perhaps the largest impact that Director Vidal has had upon the PTAB is has been via Director Reviews. The U.S. Supreme Court mandated Director Reviews to correct procedural defects in the way that administrative patent judges are appointed to the PTAB.
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The Intellectual Property Strategist
Like Mushrooms After A Rainstorm: Trade Secret Cases, and Lawyers, Are Growing Exponentially
Nicole D. Galli
In modern times, trade secrets have long been considered mainly the province of employment lawyers dealing with more mundane issues such as customer relationships. Today, it seems trade secrets lawyers are multiplying like mushrooms after a rainstorm — coming not only from the employment bar, but also from IP, particularly the patent bar.
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The Intellectual Property Strategist
Designing the Future: Protecting AR/VR Innovations With Design Patents
By Zachary D. Cleary, Jose J. Jimenez and Taryn A. Elliott
The future is only redesigned every so often, so it is worth asking, what will this new technology look like, and how can pioneers protect their user-facing innovations that will define this emerging space? Design patents are the answer.
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The Intellectual Property Strategist
IP News
Howard Shire and Justin Tilghman
Ninth Circuit Upholds Copyright Infringement Dismissal In ‘Jangle Vision Twins’ Case
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The Intellectual Property Strategist
Federal Circuit Imperils Term-Adjusted Patents
Sandip H. Patel
The Federal Circuit recently upheld the Patent Office's decision to reject claims in four separate reexamination cases due to obviousness-type double patenting (ODP).
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Entertainment Law & Finance
How Energy Drink’s “Purple Rain” Trademark Application Was Rejected
Bridget H. Labutta
Despite the fact that the trademark manual of examining procedure (TMEP) are readily available and searchable online, there are still a large number of applications that trademark examiners and judges must reject because the application does not conform to one or more conditions set forth in the Lanham Act or TMEP.
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The Intellectual Property Strategist
Medical Technology: Recent Decisions At the Federal Circuit and the Patent Trial and Appeal Board
James W. Soong
Recent developments at the Federal Circuit and the USPTO may inform evolving patent strategy on medical technology.
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The Intellectual Property Strategist
WEBINAR: AI & Intellectual Property
The Intellectual Property Staff
Owners of intellectual property should be aware of how their works are used by generative AI models and the users of these tools, and timely action should be taken to defend intellectual property against infringement. Join LJN for a free webinar on Nov. 9.
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The Intellectual Property Strategist
IP News
Jeff Ginsberg and George Soussou
Federal Circuit: The Comparison Prior Art Has to be Within the Proper Scope
Federal Circuit: More Than Describing Trial and Error Is Needed for Enablement
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Entertainment Law & Finance
WEBINAR: AI & Intellectual Property
Entertainment Law & Finance Staff
Owners of intellectual property should be aware of how their works are used by generative AI models and the users of these tools, and timely action should be taken to defend intellectual property against infringement. Join LJN for a free webinar on Nov. 9.
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Cybersecurity Law & Strategy
Federal District Court Denies Copyright to Visual Art Piece Generated Solely By Artificial Intelligence
Richard L. Hathaway
In August, the U.S. District Court of the District of Columbia affirmed the U.S. Copyright Office’s denial of a copyright application for a visual piece of art generated entirely by an artificial intelligence-driven computer called the “Creativity Machine.” Recognizing that U.S. “copyright law protects only works of human creation,” the court determined that the Copyright Office “acted properly in denying copyright registration for a work created absent any human involvement.”
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Cybersecurity Law & Strategy
Protecting Artificial Intelligence Inventions: Takeaways from 'IBM v. Zillow' from a Patent Drafting Perspective
Xuechen (Rebecca) Ding and Aseet Patel
Part One of a Two-Part Article
This two-part article sheds light on several important aspects of patents on AI technology. In Part One, we provide a general overview of the IBM v. Zillow lawsuit and discusses strategies to diversify patent portfolios to maximize protection on AI-related technology.
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The Intellectual Property Strategist
The Presumption of Irreparable Harm After the Trademark Modernization Act Of 2020: The Good, the Bad and the Ugly
Christopher P. Bussert
This article explores developments (both positive and negative) in the post-TMA world in which courts have wrestled with implementation of the presumption of irreparable harm in trademark cases.
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The Intellectual Property Strategist
Trade Secret Protection for Consumer-Facing Products
Stephen M. Kramarsky and John Millson
Intellectual property laws, including copyright, patent, trademark and trade secret laws can provide avenues for companies to protect their IP. But it’s not always clear what assets are protectable and what are not.
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The Intellectual Property Strategist
How Far Can You Reach? The Territorial Limits of Lanham Act Infringement and False Designation of Origin Claims
Howard Shire and Sean McConnell
On June 29, 2023, the U.S. Supreme Court set new geographic limits for infringement and false designation of origin claims raised under Sections 1114 and 1125(a) of the Lanham Act. Given the global nature of business today, the decision highlights the need for trademark owners to continually reassess and, perhaps, expand their international trademark registration strategy as product lines and brands become more international in scope.
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The Intellectual Property Strategist
The Power, Perils and Pitfalls of Lookalikes
Steven James and Hattie Chessher
In April 2021, a food fight broke out between two of the UK’s largest supermarkets. Marks and Spencer launched legal action against Aldi over the latter’s alleged copy of its signature “Colin the Caterpillar” cake. This article takes a look at the issues surrounding lookalikes, what the English courts have said about them and what can be done by brand owners to protect against the risks they present.
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The Intellectual Property Strategist
A Diverse Patent Portfolio Better Protects Artificial Intelligence Inventions
Amir Kashani, Xuechen (Rebecca) Ding and Aseet Patel
Takeaways from 'IBM v. Zillow' from a Patent Drafting Perspective
Part Two of a Two-Part Article
In Part One of this article we discussed the IBM v. Zillow case, where IBM sued Zillow for infringing on seven IBM’s patents directed to artificial intelligence (AI) algorithms for estimating property value. The focus was on the difficulties in establishing patent infringement on specific AI algorithms, as well as the strategic advantages of including additional patent claims that target ancillary features of an AI system. In this segment, we analyze the claims made in the Zillow case and present some tips for drafting AI-related claims from the perspective of patent infringement.
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Cybersecurity Law & Strategy
The Impact of the Supreme Court’s Goldsmith Decision on Copyright Enforcement Against AI Tools
Edward D. Lanquist and Dominic Rota
The U.S. Supreme Court’s opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith sent ripples through the legal and artistic communities. Months later, legal scholars and art journalists continue to debate whether the decision opens the door for federal courts to act as “art critics.” Many, however, downplay how the Supreme Court’s decision impacts the ways in which copyright owners may enforce their rights against generative AI tools.
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The Intellectual Property Strategist
IP News
Jeffrey S. Ginsberg and Joyce L. Nadipuram
Federal Circuit Clarifies Motivation to Combine to Achieve the Claimed Invention and Holds IPR Petitioner Must Be Given Opportunity to Reply Where Patent Owner First Proposes Claim Construction In a Response
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The Intellectual Property Strategist
A Diverse Patent Portfolio Better Protects Artificial Intelligence Inventions
Xuechen (Rebecca) Ding and Aseet Patel
Takeaways from 'IBM v. Zillow' from A Patent Drafting Perspective
Part One of a Two-Part Article
This two-part article sheds light on several important aspects of patents on AI technology. In Part One, we provide a general overview of the IBM v. Zillow lawsuit and discuss strategies to diversify patent portfolios to maximize protection on AI-related technology.
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The Intellectual Property Strategist
The Intersection of Generative AI and Copyright Law
Karl Zielaznicki, Victoria D. Summerfield and Eliza Cen
Whether prompted to write a corporate slogan, create music, generate works of art and advertisements, or summarize a book — GAI can do it all. However, its increasing popularity means that users of GAI programs face substantial intellectual property risks — particularly when businesses use GAI for marketing and other public-facing purposes.
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The Intellectual Property Strategist
Trade Secrets Management In Taiwan
Chia-Yun Lu and Jeffrey A. Pade
Recognizing the value of trade secrets, many countries have successively enacted and amended laws to strengthen the protection of corporate trade secrets.
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Cybersecurity Law & Strategy
Who Is Legally Liable for Internet AI Deepfake Content?
Jonathan Bick
Most agree that internet deepfake (deep learning + fake) content is widespread and may be used to manipulate the public, attack personal rights, infringe intellectual property and cause personal data difficulties. However, little agreement exists as to who is legally liable for internet AI deepfake content.
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Entertainment Law & Finance
Supreme Court’s ‘Bad Spaniels’ Decision Didn’t Overturn Rogers, But …
Brad Kutner
In a win for trademark holders, the U.S. Supreme Court offered a narrow ruling in the dispute involving “dog toys and whiskey.”
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The Intellectual Property Strategist
Understanding the Supreme Court Cases that Didn’t Destroy the Internet: 'Gonzalez v. Google' and 'Twitter v. Taamneh'
Erick Franklund
The Internet is still standing, but the Supreme Court’s reasoning in the Gonzalez opinion remains perplexing. Gonzalez and Taamneh are a story about how the Supreme Court “saved” the Internet from itself, and the Court needed both cases to do so.
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The Intellectual Property Strategist
Should Foreign Companies Face Lanham Act Sanctions for Trademark Infringement Occurring Abroad?
Lauren Gregory Leipold
The U.S. Supreme Court is considering whether the federal Lanham Act should be interpreted so broadly that domestic companies can leverage it to bar trademark infringement by — and seek significant damage awards against — foreign entities operating almost entirely overseas.
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The Intellectual Property Strategist
Online Extra: The Other Recent Copyright Infringement Lawsuit Against Ed Sheeran
Stan Soocher
The lion’s share of attention to copyright-infringement claims against Ed Sheeran over his song of the Year “Thinking Out Loud” recently focused on the trial in New York federal court in which a jury found in Sheeran’s favor in the lawsuit brought by the heirs of a co-author of the 1970s soul-song classic “Let’s Get It On.” But in September 2022, a related infringement suit over the same songs’ matching chord progression and harmonic rhythm was allowed to go forward.
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The Intellectual Property Strategist
IP News
Jeff Ginsberg and J. Jay Cho
Federal Circuit Examines the Analogous Art Test
Federal Circuit Affirms PTAB’s Finding of Prior Invention
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Entertainment Law & Finance
The Other Recent Infringement Lawsuit Judgment Over Ed Sheeran’s ‘Thinking Out Loud’
Stan Soocher
The lion’s share of attention to copyright-infringement claims against Ed Sheeran over his 2016 Grammy-winning Song of the Year “Thinking Out Loud” recently focused on the trial in New York federal court. But in September 2022, a related infringement suit over the same songs’ matching chord progression and harmonic rhythm was allowed to proceed.
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Entertainment Law & Finance
Current Landscape of NIL Contracts Under NCAA Policy
Phil Petrina
As we wait to see if Congress does indeed adopt a preemptive federal standard on NIL, the question becomes: What do business owners, interested investors and attorneys need to know prior to signing a college athlete to a NIL contract under the current landscape?
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Entertainment Law & Finance
IP Experts Discuss AI Art Copyright Litigation
Isha Marathe
IP experts weigh in on a case involving AI-created images based on an original work. The outcome of the case may have a significant impact on AI development and generative art.
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The Intellectual Property Strategist
All Is Not Fair In Love and Warhol
Jonathan Moskin
A new balance must be struck between the new use and the exclusive right of authors to make derivative works, and part of that balance includes a clearer focus on the statutory fair use factors as well as the commercial nature or not of the new work. As a practical matter, how much the decision changes in this “troublesome” area remains to be seen.
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Business Crimes Bulletin
ITC General Exclusion Orders Targeting All Importers Are On the Rise
Daniel Muino, Brian Busey and Nomin-Erdene Jagdagdorj
In recent years, the ITC has issued more General Exclusion Orders (GEOs) than in the past. For importers of products potentially implicated by a requested GEO, the GEO can be a major threat even if the importer is not a respondent in the case.
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The Intellectual Property Strategist
Generative AI and Patent Considerations
James W. Soong
A patent strategy informed by the unique considerations raised by generative AI will optimize protections for innovations in the field. Patent strategies should reflect the current legal landscape as well as anticipate potential future legal developments.
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The Intellectual Property Strategist
IP Considerations for ITC General Exclusion Orders
Daniel Muino, Brian Busey and Nomin-Erdene Jagdagdorj
In recent years, the ITC has issued more General Exclusion Orders (GEOs) than in the past. For IP owners facing infringing imported products from numerous elusive sources, a GEO can be a powerful remedy to tackle all infringing products at once.
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The Intellectual Property Strategist
Securing License for Internet Artificial Intelligence
Jonathan Bick
As AI increasingly interpenetrates internet transactions, licensing interest expands. The licensing of internet AI intellectual property is stymied because legal difficulties such as the proper assessment of the jurisdiction for the licensing agreement and the nature of the internet including the proper identification of the parties for the licensing agreement.
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Cybersecurity Law & Strategy
Why Your Managed Service Provider Should Be Using Automated SIEM Logs to Manage Data Security Threats to Your Firm
Mike Paul and Robert Padilla
To effectively safeguard their data and networks, law firms need to deploy advanced security tools that can help detect and respond to threats in real time. One such tool is security information and event management (SIEM) software.
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Cybersecurity Law & Strategy
Securing License for Internet Artificial Intelligence
Jonathan Bick
The licensing of internet AI intellectual property is stymied because legal difficulties such as the proper assessment of the jurisdiction for the licensing agreement and the proper identification of the parties for the licensing agreement. However, the primary issue is that normally the licensor is a computer program, hence not a legal person.
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The Intellectual Property Strategist
The First Amendment and the Lanham Act At the Supreme Court
Conor Tucker
In March, the Supreme Court heard a blockbuster trademark case with significant implications for trademark law. After argument, reversal seems likely as questioning from the justices suggests that a long-standing precedent is unlikely to survive unscathed. But the Court also indicated concern over the broader implications of this case in the arts, entertainment, and publishing. Here’s what you need to know about Jack Daniel’s v. VIP Products.
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The Intellectual Property Strategist
ChatGPT, Generative AI and IP Considerations
Dan Felz, Wim Nauwelaerts, Paul Greaves and Josh Fox
Part Two of a Two-Part Article
Part One of this article briefly detailed what “generative AI” tools like ChatGPT are and provided an overview of key legal considerations. Part Two looks at upcoming AI-specific legislation and the path forward for firms wanting to use AI in practice.
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The Intellectual Property Strategist
Music Rates and Royalties In 2023
Jeff Brabec and Todd Brabec
Part Two of a Two-Part Article
Part One of this article discussed mechanical licenses and interactive streaming services. Part Two covers songwriters and music publishers, and record labels.
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Entertainment Law & Finance
Licensing AI Content
Jonathan Bick
The primary issue associated with securing a licensor’s consent for Internet AI intellectual property is that normally the licensor is a computer program, hence not a legal person.
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The Intellectual Property Strategist
IP News
Jeff Ginsberg and Zhiqiang Liu
Federal Circuit Affirms the Board’s Finding of Anticipation Because Prior Art Patent and References Incorporated Therein Inherently Meet the Disputed Claim Limitations
Federal Circuit Affirms a Finding of Infringement Because the District Court Correctly Construed “a” and “said” and Rejects Anticipation Argument on Waiver Grounds
Federal Circuit Vacates Judgment of Non-Infringement Because the Underlying Stipulation Failed to Provide Sufficient Detail for the Court to Resolve Certain Claim Construction Issues
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The Intellectual Property Strategist
ChatGPT, Generative AI and IP
Dan Felz, Wim Nauwelaerts, Paul Greaves and Josh Fox
Part One of a Two-Part Article
Corporate legal departments are increasingly receiving requests from business clients to use ChatGPT or similar AI-powered tools in their operations. These requests can be urgent, with business clients demanding enablement from legal. This article is in two parts: Part One briefly details what “generative AI” tools like ChatGPT are and provides an overview of key legal and IP considerations, including by looking forward to upcoming AI-specific legislation in the EU and the U.S.
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The Intellectual Property Strategist
Authorship and Copyright In Hybrid AI-Human Collaborative Works
Aaron Dunn and Chris King
The United States Copyright Office recently issued a letter ruling on the copyrightability of Kristina Kashtanova’s comic book-like work, Zarya of the Dawn. The Kashtanova ruling indicates that the Copyright Office’s determination of copyrightability of works involving use of AI will rely on whether the author is able to control and foresee with some measure of predictability the output of the authorial process
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The Intellectual Property Strategist
Innovative Uses and IP Considerations of 3D Printing
Brian A. R. Raddatz and Kate Nuehring Su
Companies involved in 3D printing must be cognizant of the patent rights obtained by their competitors in this space and must be proactive in identifying and securing their own patent rights to effectively compete in this continually developing field.
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The Intellectual Property Strategist
IP News
Howard Shire and Alicia Ginsberg
Proving Damages for Trademark Infringement In the Eleventh Circuit
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Entertainment Law & Finance
Handling IP Ownership Issues In Remote Work
Sarah Schaedler and Jennifer T. Criss
Even with legal assumptions that certain intellectual property rights in works created by employees are owned by the employer, these should not be relied upon exclusively. A well-drafted employee-agreement form is increasingly essential in light of the explosive growth of remote and flexible work arrangements.
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The Intellectual Property Strategist
New York Federal Jury Rejects First Amendment Defense In ‘MetaBirkins’ NFT Standoff
Todd Larson and Yonatan Shefa
Perhaps no other area in the technology sector — save perhaps the recent explosion of generative AI models — has raised as many thorny intellectual property issues as the proliferation of Non-Fungible Tokens, or NFTs. Leading the charge have been cases addressing whether NFT makers who utilize other parties’ trademarks can turn to the First Amendment as a defense to trademark infringement.
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The Intellectual Property Strategist
How to Diversify the Pool of Inventors — and Improve Innovation
Christine E. Hollis, Jonathan C. Hughley and David C. Read
Efforts to diversify the inventive population will not only foster innovation across a wide range of businesses and industries but will also help greatly expand the pool of inventors across racial, gender and ethnic categories, and the country as a whole will realize numerous benefits.
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