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In 2013, the Patent and Trademark Office (PTO) adopted a new policy under which any party commencing a de novo proceeding challenging a PTO decision would be responsible to pay a pro rata share of the salaries of the government attorneys working on the matter, based on a new interpretation of language that has appeared in the Patent Act for 175 years — and more recently was included in the Lanham Act as well. That language requires the plaintiff seeking de novo review to pay “all expenses of the proceedings,” win or lose. However, the term expenses had always in practice been construed (until recently) to mean only lesser costs — not attorneys’ fees. On Dec. 11, 2019, the Supreme Court rejected the PTO’s new interpretation of the Patent Act in Peter v. NantKwest, Case No. 18-801, slip op., which held that the American Rule, a centuries-old principle under which each party bears its own attorneys’ fees, does apply to this statute. The Court further concluded that the actual language of the statute itself simply does not support shifting fees.
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Fourth Circuit Weighs In on Fair Use and Copyright Registration Validity
By 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.
USPTO Issues New Guidance On Rejecting Patent Claims for Obviousness
By 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.
“Holy Fair Use, Batman”: Copyright, Fair Use and the Dark Knight
By 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.
Intellectual Property In Legal Tech: Lessons from Recent Cases
By 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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