Tag: Americas

1
Even in the Digital Age, Only Human-Made Works are Copyrightable in the U.S.
2
“Levitating” Lawsuits: Understanding Dua Lipa’s Copyright Infringement Troubles
3
Federal Circuit Further Clarifies Venue in Hatch-Waxman Cases
4
Getting closer to put the UPC into force
5
U.S. patent case updates: IPR proceedings
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U.S. Federal Court rules embedding a Tweet could be copyright infringement
7
Federal Circuit Instructs the PTAB on Written Description in University Interference Proceeding
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Sandoz v. Amgen – Biosimilars at the U.S. Supreme Court
9
The Charging Bull and the Fearless Girl: Moral Rights Protections in Australia and the U.S.
10
Sandoz v. Amgen—Biosimilars at the Supreme Court—Oral Argument

Even in the Digital Age, Only Human-Made Works are Copyrightable in the U.S.

The U.S. Copyright Office Review Board refused copyright protection of a two-dimensional artwork created by artificial intelligence, stating that “[c]urrently, ‘the Office will refuse to register a claim if it determines that a human being did not create the work,’” see recent letter. The Compendium of U.S. Copyright Office Practices does not explicitly address AI, but precedent, policy, and practice makes human authorship currently a prerequisite.

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“Levitating” Lawsuits: Understanding Dua Lipa’s Copyright Infringement Troubles

Even global stardom will not make copyright woes levitate away from British superstar Dua Lipa. The pop icon is making headlines following a week of back-to-back, bi-coastal lawsuits alleging copyright infringement with her hit “Levitating.” First, on Tuesday March 1st, members of reggae band Artikal Sound System sued Dua Lipa for copyright infringement in a Los Angeles federal district court1. Then, on Friday March 4th, songwriters L. Russell Brown and Sandy Linzer filed their own copyright infringement lawsuit against the pop star in a New York federal district court2. Both lawsuits were filed claiming violations of the Copyright Act, 17 U.S.C. §§ 101 et seq.3

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Federal Circuit Further Clarifies Venue in Hatch-Waxman Cases

Last year, in Valeant Pharmaceuticals North America LLC v. Mylan Pharmaceuticals Inc., the Federal Circuit confirmed that 28 U.S.C. § 1400(b) is the sole venue provision for domestic defendants in Hatch-Waxman actions.1 On Friday 5 November 2021, the Federal Circuit provided even greater clarity on venue rules in such cases, concluding that, for venue purposes, only submission of the ANDA qualifies as an act of infringement, not any action related to the submission.2

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Getting closer to put the UPC into force

April 26, 2018 is a remarkable date: first it’s World IP Day celebrating IP around the world. Second, and this is unique, the British IP Minister Sam Gyimah MP announced that the UK ratified the Unified Patent Court Agreement (UPC Agreement). By doing so the UK agreed to be bound to both the UPC agreement and the UPC’s Protocol on Privileges and Immunities (PPI). The UPC will be a court common to the contracting member states within the EU having exclusive competence in respect of European Patents and European Patents with unitary effect.

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U.S. Federal Court rules embedding a Tweet could be copyright infringement

A federal district court in New York recently held that embedded tweets could violate the exclusive right to display a copyrighted image. In 2016, Plaintiff Justin Goldman snapped a photo of New England Patriots quarterback, Tom Brady, with Boston Celtics General Manager, Danny Ainge. Goldman then uploaded the photo to his Snapchat Story. The image went viral, making its way onto Twitter, where it was uploaded and re-tweeted by several users. From there, media outlets and blogs published articles which featured the photo by embedding the tweets on their webpages. Goldman sued the media outlets for copyright infringement.

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Federal Circuit Instructs the PTAB on Written Description in University Interference Proceeding

On June 27, 2017, the U.S. Federal Circuit vacated and remanded the Patent Trial and Appeal Board’s (Board) decisions in three interference proceedings between the Board of Trustees of Leland Stanford Junior University (Stanford) and the Chinese University of Hong Kong (CUHK) (Case No. 2015-2011).

Competing inventors at Stanford and CUHK developed methods for diagnosing aneuploidies—conditions characterized by an abnormal number of chromosomes (e.g., Down’s Syndrome and Turner’s Syndrome)—using maternal blood samples.  Maternal blood contains very small amounts of fetal DNA, and maternal blood sampling is far less invasive than previous methods of sampling fetal DNA.  Competing inventors developed techniques for detecting the fetal DNA in maternal blood.

A Stanford application was filed in 2007 with claims to analyzing certain “target sequences” of fetal DNA. A CUHK application, published in 2009, described a “random sequencing” method. This method uses a massively parallel sequencing (MPS) technique that does not require use of “target sequences.” After the CUHK application published, Stanford cancelled its original claims and replaced them with claims to sampling “randomly selected” DNA fragments using MPS. The 2007 Stanford application had disclosed that “the Illumina [DNA] sequencing platform” could be used to perform MPS.

Both Stanford and CUHK requested interferences before the Board to determine who invented the random sequencing method. CUHK claimed that, in 2011, Stanford saw CUHK’s claims to random MPS, and changed its application to claim that technique. CUHK moved to have Stanford’s claims held unpatentable for lack of written description support for random MPS.  The Board found that Stanford’s specification disclosed “targeted” rather than “random” MPS, and would not have indicated to one of ordinary skill in the art that the inventor was in possession of the claimed random MPS method.  It held Stanford’s claims unpatentable for lack of written description.

The Federal Circuit, inter alia, vacated the Board’s decision, stating that the Board erred in analyzing written description, and remanded the case.  The Circuit first found the Board erred by relying on CUHK’s expert testimony and several publications discussing a DNA sequencing platform that differed from the Illumina platform.  The Circuit further stated that the Board erred because “the Board’s task was to determine whether the [Stanford specification’s] written description discloses random MPS,” “not whether the description does not preclude targeted MPS.”  Finally, the Circuit stated that the Board failed to compare specific sentences and phrases referencing the sequencing process of the Stanford specification to the Stanford claims, e.g., the specification phrase “using the attachment of randomly fragmented genomic DNA.”

On remand, the Circuit instructed the Board to examine whether a person of ordinary skill in the art would have understood that the Stanford specification disclosed random MPS sequencing, as opposed to whether the specification did not preclude targeted MPS sequencing. Specifically, it instructed the Board to determine whether a person of ordinary skill would have known, as of the Stanford priority date, that the reference to Illumina products meant random MPS sequencing as recited in the claims, by examining pre-filing date factual record evidence.

By: Peter Giunta and Jenna Bruce

Sandoz v. Amgen – Biosimilars at the U.S. Supreme Court

The U.S. Supreme Court unanimously decided Sandoz Inc., v. Amgen Inc., on Monday June 12, 2017, construing the Biologics Price Competition and Innovation Act (BPCIA).  The Court held:  (1) that the patent dance is not enforceable by injunction under Federal law, and  (2) that a biosimilar applicant’s 180-day “notice of commercial marketing” can be provided before FDA approval.  (See Sandoz Inc. v. Amgen Inc., Nos. 15-1039 and 15-1195, slip op. and our IP Alert Sandoz v. Amgen—Biosimilars at the Supreme Court—Oral Argument.)

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The Charging Bull and the Fearless Girl: Moral Rights Protections in Australia and the U.S.

The Charging Bull has been an iconic New York City landmark since it was placed outside the New York Stock Exchange in December 1989 in an act of guerrilla art.  Despite initially being removed, the statue’s popularity caused it to be relocated to Bowling Green days later, where it has since remained, on loan to the New York City Council.  Earlier this year, on the eve of International Women’s Day, Charging Bull was joined at Bowling Green by a second guerrilla-art installation, sculptor Kristen Visbal’s four foot statue titled Fearless Girl, who stares defiantly at the Charging Bull.

The artist behind the Charging Bull, Artutro Di Modica, claims that the placement of Fearless Girl is an insult to the Charging Bull and that her placement is ‘attacking the bull’.  The competing interests of the artists raise interesting questions in intellectual property law, specifically regarding Di Modica’s ‘moral rights’.  Does the Fearless Girl have reason to fear impending intellectual property litigation? Or will the Charging Bull have to accept the new kid on the block?

Click here to read more.

By: Sophie Taylor

Sandoz v. Amgen—Biosimilars at the Supreme Court—Oral Argument

All nine U.S. Supreme Court justices heard argument on Wednesday April 26th, in Sandoz Inc., v. Amgen Inc.  The Supreme Court is reviewing interpretations of the Biologics Price Competition and Innovation Act (BPCIA) made by the U.S. Court of Appeals for the Federal Circuit. Wednesday’s arguments focused on four main issues:

  1. whether the FDA could preliminarily grant licensure prior to the expiration of the 12 year statutory period;
  2. whether the notice of commercial marketing requires official licensure to be made;
  3. whether the “patent dance” was required by the BPCIA; and
  4. whether state law could be used to enforce compliance with the “patent dance” elements of the BPCIA.

Industry watchers hope that the Supreme Court will streamline the process for getting biosimilars to market by providing increased certainty.

To read the full alert, click here.

By: Theodore J. Angelis, Peter Giunta, Kenneth C. Liao, Margaux L. Nair and Jenna Bruce

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