The landscape for discretionary denials at PTAB is evolving quickly; both patent challengers and owners must adapt their strategies to ensure they are not left behind by the USPTO’s new approach.
Many companies have been participating in the growing trend of challenging counterfeit products of their goods by filing “Schedule A” lawsuits. These suits are mass actions typically alleging intellectual property infringement and they allow plaintiffs to sue many defendants at once, with the defendants’ names grouped in a “Schedule A” appendix attached to the complaint.
Federal Circuit: Board Erred in Finding No Likelihood of Confusion Between KIST and SUNKIST MarksFederal Circuit: No Jurisdiction Where Petitioner Offers a Non-Patent Law Related Ground for Relief
As AI becomes more sophisticated at detecting fakes, it is not just changing how brands protect themselves — it has the potential to change the legal framework for determining when platforms themselves might be held responsible for the counterfeits sold on their sites.
For companies developing novelty products, advertising campaigns, or brand-related parodies, this case underscores the importance of reviewing both confusion and reputational risks. For rights holders, it affirms that parody is not a license to defame a brand.
Most days, preparing and prosecuting patent applications follows a familiar rhythm. Talk with the inventors. Draft the application. Wait for the Patent Office. Argue a few times. Secure the patent. Repeat. But every so often, a case reminds us that our work can mean much more — especially when something has gone wrong, and someone needs an advocate to make it right.
After putting a months-long pause on all of his active Schedule A cases, Judge John Kness in the U.S. District Court for the Northern District of Illinois issued a scathing opinion calling out the practice and urging his fellow jurists to reassess their approach to the litigation strategy.
Two judges in the Northern District of California recently issued groundbreaking summary judgment rulings regarding whether an artificial intelligence company’s scraping and ingestion of copyrighted works to train its LLMs qualified as fair use. Both decisions carry potentially seismic importance for AI companies and intellectual property litigators.
A trademark battle that pitted technology giant OpenAI against a company known as Open AI (note the space between the terms) has resulted in a summary judgment that has ordered the smaller enterprise to cease use of the name and its prized internet real estate, open.ai.
In late July, two important decisions came down from courts in the Northern District of California regarding the unauthorized use of copyrighted material for the training of large language models. No real consensus has emerged as to the effect they will have on the broader AI litigation landscape.
