Recently, the Second Circuit held that it was not fair use for an artist (“Andy Warhol”), who was licensed to create an artist reference for a 1984 Vanity Fair article based on an iconic photograph of Prince, to also create a 15-work series based on the iconic photograph. Andy…
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 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.
On November 24, 2021, the Court of Appeals of the Federal Circuit (“CAFC”) affirmed a Patent Trial and Appeal Board (“PTAB”) decision invalidating most of the claims of a patent on opioid addiction treatment because the amounts of compounds described in the patent and ranges listed in the claims…
Recently, the Court of Appeals for the Federal Circuit (“CAFC”) took the rare opportunity to describe the pleading requirement as it relates to direct patent infringement. Plaintiff Bot M8 LLC (“Bot M8”) sued Sony Corp. of America (“Sony”) alleging that Sony’s products, including its Playstation 4 videogame console (the…
In a 363-page final initial determination of a Section 337 of the Tariff Act of 1930, as amended (19 U.S.C. § 1337), action, publicly released on October 13, 2021, Administrative Law Judge (“ALJ”) David P. Shaw addressed a number of arguments with respect to several patents owned by Overhead…
The Supreme Court’s 2014 decision in Alice Corp. v. CLS Bank International continues to trip up patentees, as the Federal Circuit, (“CAFC”), and the District of Arizona invalidated two separate patents for claiming unpatentable subject matter last week. Cardionet involved U.S. Patent No. 7,099,715 (“the ’715 patent”), which was…
The Federal Circuit (“CAFC”) affirmed an award of exceptional case attorneys’ fees under 35 U.S.C. § 285 (“§ 285”) over Appellant Heat On-The-Fly (“HOTF”)’s arguments that the district court erred in failing to consider certain factual findings, and that it mis-weighed the strength of HOTF’s litigation positions and a purported lack…
On October 13, 2021, the Federal Circuit (“CAFC”) held that any financial interest administrative patent judges (“APJs”) have in instituting AIA proceedings did not violate a patentee’s due process rights. Mobility Workx (“Mobility”) brought an infringement suit against T-Mobile and Verizon Wireless, shortly afterwards Unified Patents LLC (“Unified”) filed…
On September 28, 2021, the Federal Circuit, (“CAFC”), reinstated an enhanced damages award against Cisco Systems Inc. (“Cisco”), holding that both substantial evidence supports the jury’s finding of Cisco’s willful infringement after May 8, 2012, and that Cisco’s conduct rises to the level of “wanton, malicious, and bad-faith behavior”…
On August 23, 2021, the 9th Circuit found that under California common law and statutory copyright law, owners of pre-1972 sound recordings do not have an exclusive ownership right in public performances. This holding means that owners of pre-1972 sound recordings are entitled only to royalties for the public…
Covers select developments in patent and trade secret law between 2014 and 2016, including changes to the standard of patentability and patent infringement damages, as well as the federal Defend Trade Secrets Act….
On September 23, 2021, the Third Circuit reversed dismissal of a newscaster’s statutory Pennsylvania Right of Publicity claim. It held that there was no immunity under the Communications Decency Act (“CDA”) for said claim because the CDA’s carve out for intellectual property protections are not limited to federal intellectual…
On September 9, 2021, the Court of Appeals for the Federal Circuit (“CAFC”) found that use of a catalog description of a prior art product as a prior art reference in an IPR proceeding does not create 35 U.S.C. § 315(e)(2) estoppel as to the underlying prior art product. Further,…
On September 8, 2021, the Federal Circuit, (“CAFC”), found that the Patent Trial and Appeal Board’s (“PTAB”) decision to institute inter partes review (“IPR”) of four MaxPower patents, despite an agreement to arbitrate disputes regarding those patents, was unappealable. The CAFC also denied granting a writ of mandamus to…
Artificial Intelligence (“AI”) has come a long way in recent years and has allowed people to automate many tasks, but one task AI cannot do is be a named inventor on a patent, at least not yet. Stephen Thaler tried to file a patent application naming his AI machine…
The Court of Appeals for the Federal Circuit (the “CAFC”) recently held, again, that the Patent Trial and Appeal Board (“PTAB”) erred in finding U.S. Design Patent Nos. D612,646 and D621,645, directed to gravity feed soup can dispensers, not obvious. The decision underscores that design patents are subject to…
On August 11, 2021, the Court of Appeals for the Federal Circuit (“CAFC”) held that the Patent Trial and Appeal Board (“PTAB”) erred in construing a key term—“fixed”—in the patent claims too narrowly. After construing the term to have special meaning, and relying on extrinsic evidence to support that…
The Federal Circuit’s (“CAFC”) recent decision in CommScope Techs. provides an important reminder regarding proving literal infringement, as well as some tips on preserving an issue for appeal. At trial, both CommScope and Dali alleged infringement of multiple patents. Following trial, both parties appealed several decisions. The CAFC, however,…
On August 2, 2021, the Court of Appeals for the Federal Circuit (“CAFC”) held that an employment agreement stating that an employee’s future patents “shall be the property of the University [of Michigan]” did not create a present automatic assignment of the asserted patents to the University. Thus, the…
The Court of Appeals for the Federal Circuit (CAFC) has again ordered a judge from the Western District of Texas to transfer a patent case into the Northern District of California. Specifically, the CAFC held that courts should disregard plaintiff’s pre-litigation attempts to manipulate venue when determining whether an…
In the latest trademark case spurred by Covid-19, the District Court of Arizona (“the court”) denied Arizona Board of Regents’ (“ASU”) motion for default judgment for a permanent injunction against an Instagram user because the vulgar Covid-related messages from the user (“John Doe”) did not rise to the level…