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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 below. 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. 

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,…
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,…
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…
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…
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…
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…
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…
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…
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…
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…
On April 4, 2023, in a case of first impression, the Federal Circuit reversed the Trademark Trial and Appeal Board (TTAB) and held that a trademark applicant cannot use the priority date of a prior application when the goods and services are not listed in the prior application.  Bertini—a…
Clever covert spy activities during active litigation may backfire.  Recently, Magistrate Judge Kathleen L. DeSoto recommended dismissing all of Site 2020’s patent infringement claims against Superior Traffic with prejudice because Site 2020 acted in bad faith and “engaged deliberately in deceptive practices that undermine the integrity of judicial proceedings.”…
The Eleventh Circuit joins the Ninth Circuit where, despite a claim of copyright infringement having a three-year statute of limitation, a plaintiff can recover damages more than three years prior to the suit.  Recently, the Eleventh Circuit weighed in on the current circuit split finding neither the Supreme Court’s…
The Court of Appeals for the Federal Circuit (“CAFC”) recently upheld a decision of the Patent Trial and Appeal Board (“PTAB”) that found some claims of U.S. Patent 8,815,830 (“the ’830 patent”) unpatentable as anticipated. The ’830 patent’s owner, the Regents of the University of Minnesota (“Minnesota”), argued before…
This week, the Fourth Circuit affirmed the United States Trademark Trial and Appeal Board’s (“TTAB”) and subsequent Eastern District of Virginia’s (“District Court”) summary judgment finding that “GRUYERE” could not be registered as a certification mark because the term had become generic.  Specifically, “GRUYERE” is generic because the “relevant…
Sticks and stones may break your bones, but don’t complain to the Court of Appeals for the Federal Circuit (“CAFC”) if a patentee calls you an infringer, claims you copied, or threatens to sue your customers.  Holding speech restrictions granted in a preliminary injunction were an abuse of discretion,…
Be careful of showing your claimed inventions at tradeshows.  On February 15, 2023, the Federal Circuit (“CAFC”) affirmed a summary judgment ruling that, by merely showcasing an embodying device at an industry event (the “Event”), Minerva Surgical, Inc. (“Minerva”) had engaged in an invalidating public use more than one…
In a patent dispute between plaintiffs ChromaDex and Dartmouth College and defendant Elysium Health over spilled milk, the Federal Circuit affirmed the Delaware District Court’s grant of summary judgment in favor of the Elysium Health, based  the subject matter of the asserted patent being patent-ineligible under 35 U.S.C. §…
On February 3, 2023, the Southern District of California found a patent infringement case exceptional under 35 U.S.C. § 285 and awarded the defendant, Cerner Corporation (“Cerner”), its attorney’s fees after the plaintiff, CliniComp International, Inc. (“CliniComp”), pursued ever-shifting infringement theories even after Cerner served it with an Octane Fitness letter. …
On January 27, 2023, a district court judge refused to grant a group of musicians class certifications in their copyright infringement efforts against their former record label, Universal Music Group (UMG).  The district court found that the need for individualized proof in a work-made-for hire copyright case, such as…