New Federal Trade Secret Law Takes Effect!

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

So what is a trade secret?  Generally, a trade secret is information that the owner has taken reasonable measures to keep secret, derives independent economic value from not being generally known, and cannot be readily ascertainable by proper means, such as reverse engineering or independent development.  Many businesses rely on trade secret protection rather than patent protection for confidential information such as product recipes (e.g., the recipe for Coca-Cola), software algorithms (e.g., Google’s search engine),

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Tattoo Infringement Case Against NBA 2K Game Publisher Shows Misunderstanding of Applicability of Statutory Damages

by Scott M. Hervey
The IP Law Blog

This isn’t just another tattoo-copyright infringement case.  This case raises an important lesson for all copyright claimants.

The backstory: Solid Oak is a licensing firm that represents the go to tattoo artists for NBA royalty, including LeBron James.  Solid Oak filed a lawsuit against Take-Two Interactive Software, the game publisher behind the popular “NBA 2K” basketball video game.  The lawsuit alleges that Take-Two  infringes the copyrights in six tattoos appearing on LeBron and other NBA players by depicting those players – tattoos and all – in the video game.  

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FEDERAL CIRCUIT APPLIES BROADENED TEST FOR DIVIDED INFRINGEMENT

by Audrey A. Millemann
The IP Law Blog

On April 18, 2016, the Supreme Court denied certiorari in Akamai Technologies, Inc. v. Limelight Networks, Inc., 797 F.3d 1020 (Fed. Cir., August 2015) (“Akamai IV”), cert. denied, 2016 U.S. LEXIS 2768.  The Court declined Limelight’s petition for review of a $46 million jury verdict against Limelight for patent infringement.  The jury had found Limelight liable for direct infringement of Akamai’s method patent, but the Federal Circuit Court of Appeals had reversed that judgment,

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Court Orders Plaintiff to Pay Defendants’ $8 Million in Attorney’s Fees in Patent Row

by Eric Caligiuri
The IP Law Blog

Since the U.S. Supreme Court’s twin 2014 decisions in Highmark Inc. v. Allcare Health Management System, Inc. and Octane Fitness, LLC v. ICON Health & Fitness, Inc. attorney’s fees awards are becoming more common in patent cases.  35 U.S.C. § 285 allows attorney fees “in exceptional cases.”  Before 2014, this meant a court awarded attorney’s fees only if a party’s litigation position was objectively baseless.  This standard proved to be a high bar,

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Supreme Court Battle Set Over Prohibition of Disparaging Trademarks

by Scott M. Hervey
The IP Law Blog

Section 2(a) of the Lanham act bars the registration of “scandalous, immoral or disparaging trademarks.” The USPTO has used this applied this provision to refuse the registration of marks such as F**K PROJECT, PORNO JESUS, ASSJACKED and NO $#!+.  The USPTO also invoked this provision when it upheld an examiner’s refusal to register the mark THE SLANTS for a musical band on the grounds that it was offensive to Asian-Americans.  The band appealed the refusal to register to the Federal Circuit.

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Are Pins, Posts, Tweets and Likes Appropriate for Use in Selecting Jurors?

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

Registered Patent Attorney

When you hear the name of someone you can’t place or don’t know much about, what do you do?  Chances are, you “Google” them.  Well that is what attorneys are doing to learn more about prospective jurors too!  But they are not stopping there.  They are looking at a number of social media sites, such as Facebook, Twitter, and LinkedIn to learn about the profiles, likes, dislikes, friends, hobbies, biases, religion, and preferences of individuals in the jury pool. 

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Pre-Issuance Damages for Patent Infringement – A Very Rare Remedy

by Audrey A. Millemann
The IP Law Blog

The Federal Circuit Court of Appeals recently addressed an issue of first impression: what is the “actual notice” required under 35 U.S.C. §154(d) for a patent owner to recover damages for a defendant’s infringing conduct that occurred before the patent issued?

Most people assume that a plaintiff cannot recover damages for patent infringement for infringing actions that took place before the patent issued (pre-issuance damages). However, the American Inventors Protection Act of 1999 does for just that.

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Apple Argues It Should Not Be Compelled to Write Software for the F.B.I.

by Eric Caligiuri
The IP Law Blog

On February 16, 2016, Magistrate Judge Sheri Pym in the United States District Court for the Central District of California issued an order compelling Apple, Inc. to provide technical assistance to the F.B.I. so it can access an iPhone 5C that belonged to a shooter in the recent San Bernardino, California attack.

The order, which issued without obtaining Apple’s initial input, requires Apple to write new software and take other measures to disable passcode protection on the attacker’s iPhone.

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Kylie Minogue v. Kylie Jenner: A TTAB Clash of Celebrities

by Josh H. Escovedo
The IP Law Blog

Kylie Jenner has finally decided to step out from behind her older sisters and get to work on her own independent ventures. In furtherance of this desire, Ms. Jenner filed numerous federal trademark applications in April and November 2015. The applications relate to Ms. Jenner’s first name, as well as her full name. As you may know, a trademark provides its user the exclusive right to use the mark in connection with the class of goods in which the mark is registered.

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