Publications

Irwin IP Publications is the go-to resource for the latest updates and insights in the world of intellectual property. Over 250 articles are published on cases addressing unique issues, all of which can be found using the search tool above. Additionally, there is a collection of articles/papers and presentations that cover a wide range of topics. Whether you’re a legal professional, business owner, or simply someone passionate about IP, our publications page will provide you with all the knowledge needed to navigate this dynamic field.

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September 15, 2023

The Functionality Bar is “Low” Hanging Fruit

Choose your trade dress carefully, if the design as a whole has any function, your trade dress may be invalid. On September 7, 2023, the Third Circuit held that a candy’s trade dress consisting of a wedge shape with red, white, and green colors was functional because the combination…

September 11, 2023

Obviousness-Type Double Patenting is Alive and Well

In a recent decision, the Court of Appeals for the Federal Circuit (“CAFC”) resolved district court splits regarding obviousness-type double patenting (“ODP”) by holding that ODP is still a valid challenge to patent validity and that the application of ODP is not dependent on intent of the patentee. ODP…

September 1, 2023

Ownership≠Authorship: No Copyright for AI System Owner

The U.S. District Court for the District of Columbia affirmed the Copyright Office’s denial of a copyright registration for a work of art created by an artificial intelligence (AI) computer system. Plaintiff Stephen Thaler sought to register a copyright based on visual art his computer system created, and the…

August 14, 2023

Not Just One Size Fits All in Brandy Melville Decision: Ninth Circuit Opines on a Trio of Trademark First Impressions

Addressing not one but three matters of first impression, the Ninth Circuit held that willful blindness giving rise to contributory trademark infringement requires a defendant to have specific knowledge of specific infringers or acts of infringement and without specific knowledge there is not a duty to search whether third…

August 8, 2023

Mahindra’s Not-a-Jeep Finds Redemption in Redesign

On remand from the Sixth Circuit, the Eastern District of Michigan (“District Court”) declined FCA US LLC’s (“Jeep”) motion to enjoin importation of rival automaker Mahindra’s post-2020 ROXOR utility terrain vehicle (“UTV”). The Sixth Circuit had reversed the District Court for failing to analyze the factors for applying the…

July 31, 2023

Supreme Court Drives Train Through Jurisdiction Loophole

Be cautious when deciding whether to do business in a state in a way that requires you to register in that state; you may be consenting to general personal jurisdiction in that new state by doing so. On June 27, 2023, the Supreme Court held that Pennsylvania’s consent statute—which…

July 12, 2023

Olé! CAFC Rules Patent Bullfight Must Go On

The Court of Appeals for the Federal Circuit (“CAFC”) recently revived a patent infringement suit dismissed in the Western District of Wisconsin brought by Inguran, LLC (“Inguran”) against ABS Global, Inc. (“ABS”). The CAFC held that Inguran was not barred by claim preclusion from asserting claims of induced infringement…

July 5, 2023

The Not So Long Arm of the Law: Limits on the Lanham Act

The Supreme Court decided the extraterritorial reach of two provisions of the Lanham Act prohibiting trademark infringement. Abitron appealed the Tenth Circuit’s decision that the Lanham Act extended to Abitron’s foreign infringing conduct. The Supreme Court vacated and remanded the decision, explaining that the provisions of the Lanham Act…

June 26, 2023

Experts Walk the Line: Avoiding Exclusion of Testimony as Legal Opinions

Courts continue to measure that fine line between reliable expert testimony and legal opinion that patent experts constantly walk on. In a recent opinion, the Eastern District of Texas denied a patentee’s motion to exclude the accused infringer’s expert testimony holding that the expert was merely doing his job,…

June 22, 2023

Malicious, Threats, and Malware: Objective Facts, Not Subjective Opinions

On June 2, 2023, the Ninth Circuit reversed a dismissal of Plaintiff Enigma Software Group’s (“Enigma”) Lanham Act false advertising and related state law claims against its competitor, Defendant Malwarebytes, Inc. (“Malwarebytes”). The primary basis for the reversal was that designating Enigma’s products as “malicious,” “threats,” and “malware” were,…

June 19, 2023

Supreme Court Tightens the Leash on Parody

On June 8, 2023, the Supreme Court vacated a Ninth Circuit decision holding that a poop-themed chewable dog toy resembling a Jack Daniel’s whiskey bottle was protected by the First Amendment and did not infringe Jack Daniel’s trademark rights. This case makes the use of the parody exception defense—which…

June 15, 2023

SCOTUS Stills Courts’ Inner Art Critic

In a highly anticipated ruling, the Supreme Court found that the Andy Warhol Foundation (“AWF”)’s licensing of “Orange Prince” to Condé Nast was not “fair use” of a Lynn Goldsmith photograph that served as the basis for Andy Warhol’s Prince Series. In affirming the Second Circuits’ ruling that the…

June 12, 2023

Confess Yourself Before You Wreck Yourself: When Failing to Meet the Duty of Candor Results in Stiff Penalties

In a stark order, the Patent Trial and Appeal Board (PTAB) invalidated patents because a patent owner failed to disclose test results that were inconsistent with the patent owner’s arguments, underscoring the PTAB’s focus on holding parties accountable when they fail to meet their duty of candor and fair…

May 30, 2023

Sanctions for Attorney Misconduct at a Dep: Fact or Fiction?

Few litigation events cause tempers to flare as surely as depositions, but only once in a blue moon, it seems, will a Court take action against an attorney for violating the rules. However, the planets aligned over the District of Colorado on May 5 when counsel for a defendant…

May 15, 2023

Amended Complaint Gives Plaintiff a Do-Over, Not the Defendant

While it is accepted that filing an amended complaint supersedes the original complaint rendering it without legal effect, a defendant may waive certain defenses by not raising them as to the original complaint. The District Court of Nevada is the latest court to find that a defendant may assert…

May 12, 2023

Federal Circuit Cooks District Court’s Decision to Add Bacon-Prep Inventor

This week, the Federal Circuit reversed the United States District Court for the District of Delaware’s (“District Court”) decision to add David Howard as a joint inventor on Hormel Food Corporation’s (“Hormel”) U.S. Patent No. 9,980,498 (“the ’498 patent”). Despite the District Court finding the opposite, the Federal Circuit…

May 8, 2023

Automating Without Innovating: Patents Held Invalid

In an appeal before the Federal Circuit, plaintiff People.ai argued to no avail that the Northern District of California erred in its finding of invalidity for a set of business-analytics software patents under 35 U.S.C. § 101. The plaintiff appealed, claiming that its patents did not contain patent ineligible…

May 5, 2023

Publishers Take a Hatchet to Free Digital Libraries

On March 24, 2023, the Southern District of New York held that the Internet Archive (“IA”)’s digitization and lending online of the Hatchette Book Group (“Publishers”)’s copyrighted physical books infringed Publishers’ copyrights and was not a fair use. IA is a non-profit organization that allows patrons to check out…