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What should you do when you become aware of the existence of a third party patent that claims subject matter possibly related to your company’s product? If you take no action to timely investigate the patent, and the product is subsequently held to infringe the patent at trial, the company may be at risk of a court finding that the infringement was willful and assessing enhanced damages. To mitigate this risk, “the law of willful infringement … requires prudent, ethical, legal and commercial actions” on which basis “a prudent person would have had sound reason to believe that the patent was not infringed or was invalid or unenforceable, and would be so held if litigated.” SIR International, Inc. v. Advanced Technology Laboratories, Inc., 127 F.3d 1462 (Fed. Cir. 1997).
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By Sarah Benowich
Romag Fasteners, Inc. v. Fossil, Inc.
The Supreme Court, settling a circuit split, held that, although highly important, willfulness is not a prerequisite for a trademark infringement plaintiff to obtain a profits award.
By Anthony J. Dreyer
On May 14, 2020, the U.S. Supreme Court resolved a circuit split, finding that any preclusion of litigation defenses must comply with traditional res judicata principles, and ruling that Lucky Brand was not precluded from asserting its defenses in its long-standing trademark litigation against Marcel Fashions Group
By Shaleen J. Patel and Sushmitha Rajeevan
Machine learning allows certain AI to create entirely new content based upon the materials it used to learn. In the process of creating new content, AI may create copies of copyrighted works in memory storage as a byproduct of its overall output sequence. This article explores authorship and ownership of such AI-generated content, and to what extent, if any, can copyrights be infringed upon when AI reproduces copyrighted works for machine learning.
By Rudy Kim and Chris Han
Holding that the parties’ executed agreement mooted the issues in the case, the Federal Circuit recently reversed a district court’s decision to grant summary judgment of non-infringement despite the parties’ agreement. The decision builds upon prior Federal Circuit case law giving effect to settlement agreements.