Be Careful Not to Unintentionally Bargain Away the Right to File IPRs

by Jo Dale Carothers, Ph.D.
The IP Law Blog

When entering into contracts, parties commonly include forum selection clauses to govern future litigation between the parties. When doing so, parties need to actively consider whether they intend that forum selection clause to prohibit filing petitions, such as petitions for inter partes review of patents, with the United States Patent and Trademark Office’s Patent Trial and Appeal Board (“PTAB”). The Court of Appeals for the Federal Circuit has generally recognized that parties can bargain away these rights,

Read More

Is Machine-Made Art Copyrightable?

by Audrey A. Millemann
The IP Law Blog

The United States Copyright Office has refused to register a copyright for a work of art created by a machine.

The work of art is a two-dimensional picture that is mostly dark and sort of looks like a painting. It is a view looking towards a series of two archways over railroad tracks, with walls along the sides covered in very dark green, purple, blue, and pink foliage, with a tiny bit of blue and cloudy sky above.

Read More

Is that Bird A Cardinal or a Scarlet Tanager? Who Cares. The U.S. Supreme Court Weighs in on Copyright Infringement and the Issue of Mistake

by James Kachmar
The IP Law Blog

This column previously addressed the case of Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., when it was decided by the Ninth Circuit about two years ago. Unicolors is the owner of copyrights in various fabric designs, including a 2011 copyright registration that consisted of 31 separate designs. Unicolors sued H&M for copyright infringement when H&M stores began selling a jacket and skirt that contained artwork that Unicolors claimed to be identical to one of the designs in its 2011 registration.

Read More

District Court Denies Prejudgment Interest Accrued During COVID-19 Delay

by Eric Caligiuri
The IP Law Blog

In Pierce Manufacturing, Inc., et. al v. E-One, Inc. et. al, 8-18-cv-00617 (MDFL Feb. 16, 2022) (Thomas P. Barber) the Court denied in part plaintiffs’ motion for pre-judgment interest that would have accrued during a stay due to COVID-19. In the case, Defendants were found liable for infringing certain claims in Plaintiffs’ asserted patent and the jury awarded Plaintiffs damages of $1,287,854 in lost profits and $170,500 in reasonable royalties. The parties did not dispute that an award of prejudgment and post-judgment interest was appropriate along with the damages award.

Read More

Nike Tries to Stomp Out StockX’s Attempt to Sell NFTs of Nike Sneakers

by Josh H. Escovedo
The IP Law Blog

In what could be one of the biggest NFT cases to arise so far, Nike has sued resale marketplace StockX for trademark infringement in the Southern District of New York, claiming that StockX is selling NFTs that display Nike’s trademarks without Nike’s permission. In the Complaint, Nike alleges that StockX has infringed nine of its sneaker designs to create a line of NFTs that are part of its collection that StockX has branded the “Vault.” The collection consists entirely of allegedly unauthorized images of Nike sneakers.

Read More