Intellectual Property

In a recent en banc decision, the Federal Circuit Court of Appeals has overruled its prior test for nonobviousness of design patent inventions, holding that design patents are subject to the same test as utility patents.  LKQ Corporation v. GM Global Technology Operations (Federal Circuit, May 21, 224).

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On April 19, 2024, the United States Patent and Trademark Office (USPTO or Office) issued proposed modifications to the rules of practice for inter partes review (IPR) and postgrant review (PGR) proceedings before the Patent Trial and Appeal Board (PTAB or Board).

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In the realm of copyright law, determining the scope of damages and the applicability of the statute of limitations remains a contentious issue. The Supreme Court case of Nealy v. Warner Chappell Music (argued before the Court in February of this year) promises to shed light on this matter, grappling with the question of how far back a plaintiff can seek damages in a copyright infringement case. This pivotal legal battle has significant implications for copyright holders, defendants, and the broader creative industry landscape.

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OpenAI, Inc. develops artificial intelligence software involving large language models (“LLM”) known as ChatGPT.  In 2023, several authors, including the comedian Sarah Silverman, filed putative class action lawsuits alleging various copyright infringement claims. On February 12, 2024, a District Court in the Northern District of California issued its Order and ruled on the OpenAI defendants’ motions to dismiss various claims in the two pending putative class action lawsuits.

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The Federal Circuit Court of Appeals has struck down many patents on the grounds that they are invalid as directed to an abstract idea, relying on the Supreme Court’s Alice decision.  In In re Elbaum (Fed. Cir. 12/20/2023) 2023 U.S. App. LEXIS 33719, the Federal Circuit affirmed the Patent Trial and Appeal Board’s rejection of the claims in a patent application as directed to an abstract idea.

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On February 12, 2024, the United States Patent and Trademark Office (“USPTO”) issued guidance on the patentability of inventions developed with the assistance of artificial intelligence, saying that a human must have made a “significant contribution” to the invention. The USPTO explained that while AI-assisted inventions are not categorically unpatentable, the inventorship analysis should focus on human contributions, as patents function to incentivize and reward human ingenuity. Thus, patent protection may be sought for inventions for which a natural person provided a significant contribution to the invention, and the guidance provides procedures for determining the same.

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The holding in the Supreme Court case, Jack Daniels Properties v VIP Products, the case of the infringing Bad Spaniels dog toy, limits the applicability of the Rogers test. A recent case in the Ninth Circuit, Punchbowl Inc v. AJ Press, addressed the interplay between the decision in Jack Daniels and the Rogers test.

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Companies rely on intellectual property (“IP”) rights to protect their valuable information, creations, and branding. IP rights come in several forms: copyrights, trademarks, patents, and trade secrets.

As the U.S. Copyright Office explains, copyrights protect “original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.” Copyright protection exists at the time of creation of the artistic or literary work, but before enforcing the rights against an infringer, it is necessary register the work with the U.S. Copyright Office.

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In 1991, the grunge band, Nirvana, was one of the most popular musical acts in the U.S. with its anthem Smells Like Teen Spirit, which was featured on its album, Nevermind. Many will remember the cover of Nevermind that featured a naked baby swimming underwater and reaching for a dollar bill on a fishing hook. Three months after its release, Nevermind rose to the top of the Billboard 200 rankings and has sold over 30 million copies. The picture on the album was licensed for use on other merchandise, such as t-shirts, and was also the subject of various parodies. Now, 30 years later, Nirvana, its surviving members, and its record companies face a civil lawsuit for distributing child pornography by the now-grown man who was depicted on the album cover.

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Every year, I write about patents that have to do with Christmas. Here are a few I have found, some of which were issued in 2023 and others of which are older.

Design patent D990,096 is a rather strange patent entitled “Elf Hand.”  The design looks like a prickly glove with four claws on the end of a round dowel. It is not very appealing. The listed prior art includes a backscratcher, so maybe that is what this is for.

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