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LJN Quarterly Update: 2024 Q2
Steve Salkin
The LJN Quarterly Update highlights some of the articles from the nine LJN Newsletters titles over the quarter. Articles include in-depth analysis and insights from lawyers and other practice area experts.
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The Intellectual Property Strategist
Blockchain Domains: New Developments for Brand Owners
John McElwaine
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.
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The Intellectual Property Strategist
AI Can Facilitate Innovation, But It Can Also Become a Potent Patent Killer
Michael K. Friedland
When is an inventor not an inventor? It’s when the inventor isn’t human. So, if a non-human inventor can’t, in the eyes of patent law, be an inventor, what role can the non-human inventor have in the patent system? The answer is straightforward. Even though it can’t create, it can destroy.
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Entertainment Law & Finance
Hope for ‘Spotify Model’ for Licensing Content for AI
Mason Lawlor
A “Spotify model” of licensing, regulation and royalties could be the answer to the recent slew of lawsuits and future litigation relating to generative artificial intelligence defined by rampant misappropriation of name, image and likeness of individuals, including high-profile celebrities.
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The Intellectual Property Strategist
Patent Your Trade Secrets In Wake of Noncompete Ban
Daniel E. Rose
While it may be growing more difficult to protect business information with the FTC’s noncompete ban, patents can provide strong protection over technical innovations, regardless of whether the inventor stays with the company or leaves.
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Entertainment Law & Finance
Fresh Filings
Entertainment Law & Finance Staff
Notable recent court filings in entertainment law.
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The Intellectual Property Strategist
Plans for New CA State Bar Exam Still In the Works, Despite IP Concerns
Christine Charnosky
The State Bar of California’s plans to launch a new state bar exam are still in the works even though Kaplan North America, which had been chosen to develop the exam, recently asked to withdraw from participating, citing intellectual property concerns raised by the National Conference of Bar Examiners.
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The Intellectual Property Strategist
IP News
Jeff Ginsberg and Zhiqiang Liu
Federal Circuit Sitting en banc Overrules Long-standing Test for Assessing Obviousness of Design Patents and Adopts the Same Framework Established for Utility Patents
Federal Circuit Affirms District Court’s Grant of §285 Fees Request for Fees Incurred in Litigation and Denial of Fees Request for Fees Incurred In a Parallel IPR Proceeding
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LJN Quarterly Update: 2024 Q1
LJN Editorial Staff
Highlights some of the in-depth analysis and insights from lawyers and other practice area experts from the nine LJN Newsletters titles over the first quarter of 2024.
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The Intellectual Property Strategist
Trade Secret Protection Plans Provide Certainty to Employers
Hannah Elizabeth Jarrells and Edward D. Lanquist
The protection of trade secrets has long been understood to be a legitimate business interest, and, traditionally, companies have used non-competition clauses to protect their trade secrets. Now, with non-competition agreements in doubt and facing greater scrutiny, companies will need to rely on other protection mechanisms.
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The Intellectual Property Strategist
Federal Circuit Overrules 'Rosen-Durling' Test for Design Patent Obviousness
Mikaela Stone
The downfall of the Rosen-Durling test will generally make it harder to obtain design patents and easier to invalidate design patents.
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The Intellectual Property Strategist
Lessons Learned Through the Patent Trial and Appeal Board’s Legal Experience and Advancement Program
Jean Nguyen
To help prepare practitioners for oral advocacy before the PTAB, the USPTO offers free training on all aspects of conducting arguments before the PTAB, including how to improve oral advocacy, use of demonstratives, effective use of hearing time, decorum, logistics of an oral hearing, and more.
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Cybersecurity Law & Strategy
Gen-AI Created Influencers Bring New Risks
Cynthia Cole, Alysha Preston and Inez Asante
A steep rise in the use of GenAI and computer-generated influencers brings with it new marketing risks and considerations for celebrities, influencers and businesses alike.
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The Intellectual Property Strategist
7 Ways Companies and Content Creators Can Navigate Copyright Law for a Successful Partnership
Sushila Chanana and Tom Pardini
Companies often partner with influencers to market their products, hoping to tap into the influencer’s devoted audience. Likewise, influencers create certain content to secure brand deals and attract advertisers. However, this relationship can be fraught with legal issues, including in the arena of copyright law.
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The Intellectual Property Strategist
Structuring Patent Licensing Agreements
Jose L. Linares, Mark M. Makhail, Stephanie Reed Traband and Michele McGuire Vanderstreet
Licensing inventions vis-a-vis the licensing of patents is not a new practice by any means. However, the explosion of innovation in industries such as technology and pharmaceuticals has placed patent licensing at the forefront of economic advancement.
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The Intellectual Property Strategist
Protection for Confidential Business Information In a Changing Non-Compete Landscape
Stephen M. Kramarsky and John Millson
While reasonable post-employment restrictions remain enforceable (at least in the context of confidential information), the increased hostility to them has revived interest in the use of other legal protections for proprietary business materials.
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The Intellectual Property Strategist
Early Impact of the CHIPS Act
Reid Knabe and Bita Rahebi
This article describes certain key developments in the period from passage of the CHIPS Act through the present day, and provides a brief survey of key grantmaking and investment activity by U.S. government agencies since passage of the Act.
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The Intellectual Property Strategist
Emerging Legal Terrain: IP Risks from AI’s Role In Drug Discovery
Fredrick Tsang, Antonia Sequeira and Carl Morales
This article explores the benefits and risks of AI-driven drug discovery from the legal perspective. Since the law governing IP rights in AI-driven drug discovery is still in its infant state, any future legal development is likely to have significant implications in many areas.
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The Intellectual Property Strategist
LLM Customization With A Path to Human Inventorship and Patent Rights
Jim Soong
A statutory predicate to the contractual outcome regarding ownership of patent rights is the requirement of a sufficient contribution by a natural person in the effort that yielded the output. The issues implicated by this requirement are one development among more to come as patent law and policy try to catch up to proliferating AI technology.
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The Intellectual Property Strategist
Adidas Stripe Design Battle Reveals Intricacies of Trademarks In the Fashion World
Nicole D. Galli, Laura Talley Geyer and Alexa Elder
Although the bitter legal battle between Adidas and Thom Browne is far from over on either side of the pond, the case illustrates the challenges of ensuring trademark protection for simple and widely employed design elements.
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Entertainment Law & Finance
Trademark Trial and Appeal Board’s View of Parodies
Susan A. Smith and Doyle S. Tuvesson
While most trademark-related lawyers are familiar with the “Bad Spaniels” and “Chewy Vuitton” federal court decisions on trademark parody, decisions by the USPTO Trademark Trial and Appeal Board on trademark parody marks are rarely examined.
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The Intellectual Property Strategist
Is It Possible to Reconcile the Two Sides In the AI Copyright Debate?
Maria Dinzeo
The points and counterpoints brought up by experts at a Stanford Law conference provide insight on the future relationship between AI and copyright creators.
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The Intellectual Property Strategist
IP News
Jeffrey S. Ginsberg and Kaiying Wang
Federal Circuit Weighs On the Patentability of Claims to Targeted Advertising
Federal Circuit Clarifies the Result-Effective Variable Doctrine
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The Intellectual Property Strategist
Fourth Circuit Weighs In on Fair Use and Copyright Registration Validity
Thomas Kjellberg and Robert W. Clarida
In Philpot v. Independent Journal Review, the Fourth Circuit found no fair use or copyright validity for a concert photographer's use of a photo of Ted Nugent as part of a collection.
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The Intellectual Property Strategist
USPTO Issues New Guidance On Rejecting Patent Claims for Obviousness
Rob Maier
The United States Patent and Trademark Office recently published new guidance explaining the requirements for patent examiners to reject patent claims for obviousness in view of what was already known in the prior art.
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The Intellectual Property Strategist
“Holy Fair Use, Batman”: Copyright, Fair Use and the Dark Knight
David G. Kim and Michael K. Friedland
The copyright for the original versions of Winnie the Pooh and Mickey Mouse have expired. Now, members of the public can create — and are busy creating — their own works based on these beloved characters. Suppose, though, we want to tell stories using Batman for which the copyright does not expire until 2035. We’ll review five hypothetical works inspired by the original Batman comic and analyze them under fair use.
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The Intellectual Property Strategist
Intellectual Property In Legal Tech: Lessons from Recent Cases
Brian Mack, Kevin Keller and Olga V. Mack
As technology continues to permeate the legal industry, the significance of IP in safeguarding innovations, ensuring fair competition, and fostering a culture of creative legal solutions becomes paramount.
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The Intellectual Property Strategist
IP News
Justin Tilghman and Howard J. Shire
Appeals Court Backs Nickelback In Copyright Infringement Case
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The Intellectual Property Strategist
Beyond Language: How Multimodal AI Sees the Bigger Picture
Matthew R. Carey
The possibilities for patenting innovative applications of multimodal models across industries are endless.
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The Intellectual Property Strategist
Protecting Technology-Assisted Works and Inventions: Where Does AI Begin?
Ed Lanquist, Jr. and Dominic Rota
Just like any new technology, efforts to protect and enforce intellectual property on AI-based technologies are likely to be hampered by a lack of both a unified governing framework and a common understanding of the technology.
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The Intellectual Property Strategist
Content-Licensing Payment Dispute Turns On Existence of Fiduciary Relationship
Stan Soocher
A recent New York federal court decision in a dispute between a broker that sublicenses program content and a broadcaster that sublicensed content from the broker considered the interaction of contract language and extra-contractual elements of the parties’ relationship to determine whether a fiduciary relationship existed.
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The Intellectual Property Strategist
Federal Judge Blasts Patent Trolls
Rob Maier
A recent order from Chief Judge Colm Connolly in the U.S. District Court for the District of Delaware may serve as a warning for “patent trolls” — the derogatory term used to describe companies whose sole function is to acquire and then assert patents, often in cases that are questionable on the merits — against filing cases in Delaware going forward.
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The Intellectual Property Strategist
IP News
Jeff Ginsberg and Collin Hong
Federal Circuit: ITC Did Not Err In Finding Violation of Section 337
Federal Circuit: PTAB Did Not Err In Claim Construction and Finding Certain Claims Obvious
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Cybersecurity Law & Strategy
Protecting Technology-Assisted Works and Inventions: Where Does Smart Technology End and AI Begin?
Ed Lanquist, Jr. and Dominic Rota
At what point does a “smart” computing system, or advanced software program, qualify as AI in the eyes of pertinent regulatory or judicial authorities? When is an individual considered to have merely deployed an AI-based computing tool to assist with creating a work of art or conceiving of a technological innovation? Each of these questions is explored in this article, giving consideration to currently prevailing guidelines from administrative bodies and the courts.
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The Intellectual Property Strategist
All the News That’s Fit to Pinch
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.
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The Intellectual Property Strategist
Recent Patent Trial and Appeal Board Approaches to Patent Claims on Medical Technology Implementing AI
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.
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The Intellectual Property Strategist
Treatment of Antibody Claims In the U.S. After 'Amgen v. Sanofi'
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.
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The Intellectual Property Strategist
Can Artificial Intelligence Patents Overcome §112 Requirements?, Part 2
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.
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The Intellectual Property Strategist
How Patent Owners Can Leverage Climate Change Programs In Their IP Strategies
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.
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The Intellectual Property Strategist
IP News
Howard Shire and Justin Tilghman
In Patrick v. Poree, the United States Court of Appeals for the Eleventh Circuit affirmed the denial of default judgment and summary judgment of copyright infringement claims based on a lack of evidence that the plaintiff owned a valid copyright.
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Cybersecurity Law & Strategy
A Scoreboard of Notable Cases In AI and Copyright
Stan Soocher
Artificial intelligence has dominated intellectual property news since the public introduction of OpenAI’s ChatGPT, the generative AI chatbot, in November 2022. Now, 2024 starts off with court decisions and procedural rulings having taken shape in 2023 lawsuits that were filed over the collision of creative content with generative AI programs.
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The Intellectual Property Strategist
Can Artificial Intelligence Patents Survive Alice?
Mark Liang. Paige Hardy and Grace McFee
Part One of a Two-Part Article
Under the current Alice framework, those attempting to patent AI innovations face an uphill battle. But, as the caselaw demonstrates, inventors and patent drafters can take steps to reduce the risk of AI patent claims being invalidated as abstract ideas.
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The Intellectual Property Strategist
Creative Expression vs. the Lanham Act: Six Months of Cases After Jack Daniel’s
Conor Tucker
Last Term, the U.S. Supreme Court decided Jack Daniel’s v. VIP Products — a case involving interaction between the Lanham Act and the First Amendment. This article traces the lower courts’ reactions and applications to that decision.
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The Intellectual Property Strategist
IP News
Sarah Brand
Federal Circuit: PTAB Did Not Err In Finding That It Retained Authority to Issue Final Written Decision After Deadline Passed
Federal Circuit: District Court Did Not Err In Finding That an Abbreviated New Drug Application Is Limited to the Uses Described Therein
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The Intellectual Property Strategist
The Intellectual Property Strategist Is Going Digital Only. Here’s What You Need to Know.
Steve Salkin
The final print edition of The Intellectual Property Strategist will be our January issue.
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Entertainment Law & Finance
Keeping Track of Developments in Cases That Pit Creative Content Against AI Programs
Stan Soocher
2024 starts off with court decisions and procedural rulings that took shape in 2023 in lawsuits that were filed over the collision of creative content with generative AI programs. Most of the complaints allege copyright infringement and related claims prompted by the unlicensed copyright works that AI companies input into their AI programs.
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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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