Intellectual Property

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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On December 4, 2023, the Court of Appeals for the Federal Circuit vacated a $2.18 billion damage award against defendant Intel Corporation because it found plaintiff VLSI Technology LLC had erred on its damages calculation, that one of the asserted patents was not infringed, and that Intel was wrongly barred from raising a defense that it had a newly acquired license to the asserted patents.

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The Delaware District Court’s Ruling on cross-motions for summary judgment in the case of Thomson Reuters v. Ross Intelligence Inc will provide guidance for similar AI training/copyright infringement cases and, as a bonus, it provides a bit of clarity (or muddies the waters… depending on your point of view) in the application of a post-Warhol fair use defense.

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Many of us have said, “Bacon makes everything better.” Can you imagine the accolades someone would receive if they contributed to an invention that improves bacon? Well, it turns out that not all contributions count when it comes to being an inventor of a patent for a better method of precooking bacon.

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The Ninth Circuit was recently asked to address the “public interest” exemption to California’s anti-SLAPP law in a class action lawsuit brought by a Plaintiff whose photo and personal information were used without her consent to advertise subscriptions to a website. The case, Martinez v. ZoomInfo Technologies, Inc. (decided Sep. 21, 2023), posed interesting substantive and procedural issues concerning the interplay between one’s intellectual property rights and California’s anti-SLAPP law.

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The Federal Circuit Court of Appeals has again relied on the Supreme Court’s Alice case to invalidate patents on the grounds that they are directed to an abstract idea. Realtime Data LLC v. Fortinet Inc. ( Fed. Cir. 8/2/2023) 2023 U.S. App. LEXIS 19857.

Realtime owned several patents covering systems and methods for digital data compression. In 2017 and 2018, Realtime sued a number of entities in the District of Delaware for infringement of five of its patents. The defendants moved to dismiss Realtime’s complaints on the grounds that the claims in the patents were directed to patent-ineligible subject matter under 35 U.S.C. section 101. In 2019, the district court granted the defendant’s motion and held that all of the claims in the five patents were invalid.

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In JBrick, LLC v. Chazak Kinder, Inc. et al, 1-21-cv-02883 (EDNY Sep. 21, 2023) (Hector Gonzalez), the District Court for the Eastern District of New York granted the plaintiff’s motion for summary judgment regarding the validity of its copyright. 

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Last year, Jason M. Allen won first place at the Colorado State Fair (the “Competition”) for the two-dimensional artwork entitled Théâtre D’opéra Spatial (the “Work”), which he produced with the aid of Artificial Intelligence (“AI”). Despite receiving this accolade and Allen’s arguments that he contributed significant creative elements to the AI-generated Work, his attempts to copyright the work have been unsuccessful.

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