Intellectual Property

Publication of an algorithm prevents the algorithm from being a trade secret, right? Not necessarily. The Federal Circuit just reminded us that under certain circumstances that may not be the case.

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Greg Kihn is a musician best known for his 1983 hit song, “Jeopardy.” In 2017, he (and his publishing company) filed suit against Bill Graham Archives, LLC, which did business as Wolfgang’s Vault. Wolfgang’s Vault is a website where visitors could, for a fee, access thousands of live musical performances from the 1950s to the 1990s. Mr. Kihn’s complaint alleged violations of federal copyright and anti-bootlegging laws. He sought to bring these claims of a class of other performers similarly situated.

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Business owners often ask whether they should protect their intellectual property with a trade secret or a patent.  The answer is:  It depends.

What Can Be Protected? 

The first thing to consider is what it is that needs to be protected.  A trade secret protects a business’s confidential and proprietary information.  The information can be a formula, process, or customer list.

A patent protects an invention.  The invention can be an article of manufacture, a machine, a process (such as software), or a composition of matter (like a chemical formula).

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In WAG Acquisition LLC v. Flying Crocodile Inc et al, 2-19-cv-01278 (WDWA Dec. 28, 2021), the Court granted defendants’ motion to stay pending ex parte reexamination even though the case had already previously been stayed pending inter partes review.

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In November 2021, fast-food chain Jack in the Box sued FTX, a cryptocurrency exchange launched in 2019, over an allegedly infringing mascot named Lunar, referred to as “Moon Man”.  FTX featured its Moon Man character in commercials running during MLB games.  Jack in the Box is not happy.

In its complaint filed in Federal court in California, Jack in the Box references various tweets regarding the FTX Moon Man – “Oh look, it’s Walmart Jack in the Box!”, “Is it a dirty jack in the box thing?”, and “Jack in the Box’s drugged up cousin”.  One Twitter® user even tweeted a public post directly to FTX stating, “Hey, @FTX_Official, your mascot doesn’t look like the moon. He looks like Jack-In-The-Box with skin cancer.”

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The IP Law Blog has been tracking the progress of the copyright infringement lawsuit filed against Taylor Swift by Sean Hall and Nathan Butler, the writers of “Playas Gon’ Play” by the girl group 3LW (released in 2001).  (See “Taylor Swift Keeps Fighting the ‘Players’ and the ‘Haters’” and “Hall v. Swift: Nothing Original About a Player Hater”.) Hall and Butler allege that Swift’s lyrics in “Shake It Off” (“Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate”) infringe on their song (“Playa, they gonna play / And haters, they gonna hate”).

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Since the Alice v. CLS Bank and Mayo v. Prometheus decisions, district courts and the Court of Appeals for the Federal Circuit has struggled to determine and navigate the boundary between what is and what is not patent-eligible subject matter. The result has been a tangle of intertwined decisions that create an extremely wide and fuzzy boundary. Attorneys are often left to throw up their hands when asked whether a new invention is patentable or whether an existing patent will likely withstand a patent eligibility challenge under 35 U.S.C. § 101.  Some would argue that Federal Circuit decisions are currently dependent on which panel of judges hear the case because the present law is so ambiguous and subject to different interpretations.   Therefore, the legal community, inventors, investors, corporations, and the public would greatly benefit from the U.S. Supreme Court’s guidance on this issue.

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The Ninth Circuit was recently asked to determine whether to continue to apply the Circuit’s two-part extrinsic/intrinsic test for “substantial similarity” with regard to a copyright infringement claim or to depart from this approach and apply the Second Circuit’s “ordinary observer” test instead. In Johannsongs-Publishing, Ltd. v. Lovland, an unpublished opinion issued on November 29, 2021, the Ninth Circuit declined to depart from its precedence and affirmed summary judgment in favor of defendants who were accused of copyright infringement in connection with the song You Raise Me Up.

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In Mobility Workx, LLC v. Unified Patents, LLC, (Fed. Cir. 2021), the Federal Circuit Court of Appeals addressed challenges to the constitutionality of the structure of the Patent and Trademark Office’s Patent Trial and Appeal Board.

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In Apple Inc. et al. v. Hirshfeld, case number 5:20-cv-06128, in the U.S. District Court for the Northern District of California, the Court upheld the Patent Trial and Appeal Board’s (PTAB) practice of denying patent reviews due to looming trials in district court.

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