News/Events/Blogs

With the proliferation of social media and the ready access to images on the Internet and on any number of platforms, it’s just so easy to copy an image or video that moves you and post it on your social media accounts.  Easy to imagine how this can happen.  However, it’s important to remember that just because an image is posted on the internet or on a social platform doesn’t mean one can copy it and post it as your own. 

Nearly unnoticed in the wrangling over the amount of COVID relief payments, the stimulus bill signed into law on December 27, 2020 also included several interesting intellectual property provisions.  Buried thousands of pages into the bill, the Copyright Alternative in Small-Claims Enforcement Act of 2019 (the “CASE Act”) establishes a small claims court-type system under the U.S. Copyright Office for copyright holders to pursue low-value claims of copyright violations.

As it stands now,

In my last column, I discussed the first argument that should be made in overcoming an obviousness rejection made by the patent examiner in a patent application.  If possible, the applicant should argue that the examiner has failed to establish a prima facie case of obviousness because the examiner did not make the required factual findings.  However, there are several additional arguments that may be applicable.

First, in relying on prior art references for the rejection,

One of the last books written by Dr. Seuss, “Oh, The Places You’ll Go” is one of the bestselling books during graduation season each year.  The copyright for this book, like all of the works of Dr. Seuss, belongs to Dr. Seuss Enterprises, LP, which issues licenses for the creation of new works under the Dr. Seuss brand.  It also works closely to oversee licenses of its work, which it carefully vets. 

Most patent applications are initially rejected on obviousness grounds by the patent examiner in the US Patent and Trademark Office.  That means that the examiner believes that the invention, as set forth in the claims in the application, would have been obvious to a person of ordinary skill in the art at the time the application was filed.   Usually, the rejection is based on one or more prior art references – documents that are publicly available as of the application’s filing date. 

In 10x Genomics, Inc. v. Celsee, Inc., 1-19-cv-00862 (DDE 2020-12-04, Order) (Colm F. Connolly), the District Court ordered the defendant to produce documents and give testimony about communications between defendant and its new corporate owner concerning the litigation and the provisions in the acquisition agreement that concern the litigation.

Specifically, during the pendency of the litigation, nonparty Bio-Rad Laboratories had acquired 100 percent of Defendant Celsee, Inc.’s stock pursuant to an acquisition agreement.

In 2019, Carnival Corporation, the owner of the Carnival Cruise Line, attempted to register KING JAMES in connection with a wide variety of services, including retail store services, various retail goods, cruise-ship services, sports, entertainment, banquet services, beauty and health care, and much more. According to Carnival, it planned to name its newest ship King James, and the application seems to indicate that Carnival also planned to use the KING JAMES mark in connection with various other goods and services onboard the ship.

In the past few years there has been a number of libel claims based on an unfavorable portrayal of a real person in either a television program or motion picture that is based on real life events.  To name a few, there is the currently pending Mossack Fonseca & Co., S.A. et al v. Netflix Inc., which is based on the streamer’s portrayal of Panamanian lawyers in the feature The Laundromat which was about the “Panama Papers” leaked documents scandal,

With live events cancelled during the pandemic, content creators are increasingly dependent on merchandise sales.  Creators from podcasters to YouTubers to musicians are reliant on merch to bolster their revenue and their brands.  Subscribers stuck at home are watching more video and listening to more podcasts and music.  Apart from advertising and sponsorships, merch is the only way for creators to monetize their increased profile during the pandemic.

However, 2020 has seen an explosion of counterfeit products including branded merchandise by content creators. 

One way to challenge the validity of a patent at the United States Patent and Trademark Office (“USPTO”) is through a petition for inter partes review (“IPR”).  The USPTO Director has delegated responsibility to the Patent Trial and Appeal Board (“PTAB”) to evaluate such petitions to determine whether to institute review of the challenged patent.  The PTAB will only institute review of petitions that show a reasonable likelihood of success on the merits.