Publications

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”).

Read More

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.

Read More

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 v. Lovland, an unpublished opinion issued on November 29, 2021, the Ninth Circuit declined to depart from its precedence and affirmed summary judgment in favor of defendants who were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.

Read More

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.

Read More

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.

Read More

On Tuesday, October 26, 2021, Cleveland Roller Derby filed suit against the Cleveland Guardians Baseball Company, LLC, which is the entity formerly known as the Cleveland Indians Baseball Company, over its intent to rebrand the baseball team as the Cleveland Guardians. According to Cleveland Roller Derby’s complaint in the United States District Court for the Northern District of Ohio, there cannot be two Cleveland Guardian teams in Cleveland, and it was the first. As a result, it is seeking an injunction precluding the baseball team from using the trademark. According to Cleveland Roller Derby, a non-profit entity, despite being valued at over $1 billion, the baseball team is trying to bulldoze the roller derby team’s superior trademark rights to the Guardians name.

Read More