Tag: United States

1
New Interim Guidance on Fintiv Factors
2
The NFT Collection: NFT Basics and Opportunities (Part 1)
3
Copyright Dispute Over Andy Warhol’s Portraits of Prince Heading to U.S. Supreme Court
4
Even in the Digital Age, Only Human-Made Works are Copyrightable in the U.S.
5
“Levitating” Lawsuits: Understanding Dua Lipa’s Copyright Infringement Troubles
6
Name and Shame On Instagram – The ASA’s New Tactic For Non-Compliant Influencers
7
Federal Circuit Rules AAPA in Challenged Patent Does Not Qualify as Prior Art Under 35 U.S.C § 311(b) but Signals AAPA Can Play Role in §103 Analysis
8
Substance Over Form: The Importance of Substantive Grounds in Parallel District-Court Litigation and Prior Petition IPR Denials in OpenSky Indus., LLC v. VLSI Tech. LLC
9
PTAB Decisions Can Now Be Nominated Anonymously
10
Can’t “Shake It Off” Yet: Court Denies Taylor Swift’s Motion to Dismiss Copyright Infringement Lawsuit

New Interim Guidance on Fintiv Factors

On 21 June 2022, the United States Patent and Trademark office (USPTO) issued interim guidance on how the Patent Trial and Appeal Board (PTAB) should exercise its discretion when determining whether to institute a post-grant proceeding.

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The NFT Collection: NFT Basics and Opportunities (Part 1)

NFTs have gone mainstream. But what are NFTs? Should your business develop its own NFT? How are they regulated? In The NFT Collection series of alerts, we will delve into these questions to help your business understand this new technology.

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Copyright Dispute Over Andy Warhol’s Portraits of Prince Heading to U.S. Supreme Court

The U.S. Supreme Court will review the standard for a “transformative” work as “fair use” under the Copyright Act.   Specifically, whether a second work of art is “transformative” when it conveys a different meaning or message from its source material, or not where it recognizably derives from and retains the essential elements of its source material.

The Court agreed to review the Second Circuit’s decision that Andy Warhol’s Prince Series portraits of the musician Prince did not make fair use of celebrity photographer Lynn Goldsmith’s photograph of Prince.  Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, No. 21-869 (petition granted Mar. 28, 2022).   

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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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Name and Shame On Instagram – The ASA’s New Tactic For Non-Compliant Influencers

In June 2021, the UK’s Advertising Standards Authority (ASA) began naming and shaming certain influencers for “consistently failing to disclose ads on their Instagram accounts, despite repeated warnings and help and guidance on sticking to the rules” on their website (see here).

The name and shame list was created as a result of the ASA Influencer Monitoring report, which found inconsistent ad disclosure by influencers on Instagram through Stories, posts and Reels, with the disclosure rules being followed only 35% of the time (see here). The influencers listed on the webpage are subject to enhanced monitoring and remain on there for a minimum of three months.

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Federal Circuit Rules AAPA in Challenged Patent Does Not Qualify as Prior Art Under 35 U.S.C § 311(b) but Signals AAPA Can Play Role in §103 Analysis

On 1 February 2022, the Federal Circuit released its decision in Qualcomm v. Apple1 providing guidance on the treatment of Applicant Admitted Prior Art (AAPA) under 35 U.S.C § 311(b) in Inter Partes Review (IPR) proceedings. In doing so, the Federal Circuit vacated two IPR decisions2 of the Patent Trial and Appeal Board (PTAB) where the PTAB had found several claims of U.S. Patent No. 8,063,674 (“the ’674 patent”) unpatentable under 35 U.S.C. § 103. In doing so, the Federal Circuit remanded the case to allow the PTAB to address the specific issue of whether the AAPA cited by Apple improperly formed the “basis” of Apple’s § 103 challenge or was simply ancillary.

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Substance Over Form: The Importance of Substantive Grounds in Parallel District-Court Litigation and Prior Petition IPR Denials in OpenSky Indus., LLC v. VLSI Tech. LLC

On 23 December 2021, the Patent Trial and Appeal Board (“the Board”) instituted inter partes review (IPR) of U.S. Patent No. 7,725,759 B2 (“the ’759 patent”). See OpenSky Indus., LLC v. VLSI Tech. LLC IPR2021-01064, Paper 17 (Dec. 23, 2021). Petitioner OpenSky Industries, LLC (“OpenSky”) relied on expert declarations of Dr. Sylvia D. Hall-Ellis and Dr. Bruce Jacob originally filed by Intel Corporation in two other IPR proceedings (“Intel IPRs”).1 Indeed, the declaration included the same coversheet that accompanied the declaration in the Intel IPR. The Board analyzed OpenSky’s Petition under §314(d) and §325(d), declining to deny institution, finding, in part, that since Fintiv and General Plastic did not warrant discretionary denial, the arguments, which were almost identical to those made in the Intel IPRs, deserved to see their day in court at the PTAB.

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PTAB Decisions Can Now Be Nominated Anonymously

The Patent Trial and Appeal Board (“PTAB”) now allows “individuals to anonymously nominate any routine decision of the Board for designation as precedential or informative.” (Click here for PTAB Decision Nomination form.)

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Can’t “Shake It Off” Yet: Court Denies Taylor Swift’s Motion to Dismiss Copyright Infringement Lawsuit

On September 2, 2020, a California federal judge denied musician Taylor Swift’s motion to dismiss copyright infringement claims related to the lyrics in Swift’s hit song Shake It Off. On remand from the Ninth Circuit, the district court held the merger doctrine did not apply at this stage and that plaintiffs Nathan Butler and Sean Hall sufficiently alleged a protectable sequence of creative expression and substantial similarity in the lyrics at issue. This ruling comes nearly three years after Hall and Butler originally filed suit, and nearly one year after the Ninth Circuit breathed new life into the case by reversing the district court’s prior dismissal of this lawsuit.

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