As it seems to do every few years, the Supreme Court has again waded into personal jurisdiction waters. The Court issued Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017 (2021), on March 25, 2021. Ford is significant for a few reasons.
“[I]t is entirely irrelevant to [the fair use] analysis that each Prince Series work is immediately recognizable as a ‘Warhol.’ Entertaining that logic would inevitably create a celebrity-plagiarist privilege.” Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, No. 19-2420-CV, 2021 WL 1148826 at *9 (2d Cir. Mar. 26, 2021) (internal citations and quotations mostly omitted).
In Vidstream, LLC. v. Twitter, Inc., No. 2019-00734 (Fed. Cir. Nov. 25, 2020), the Federal Circuit affirmed a decision by the PTAB holding Vidstream’s patent unpatentable over a reference submitted by Twitter. In doing so, the Federal Circuit addressed two issues that come up regularly in IPR practice: when the PTAB can consider evidence submitted by the petitioner on reply, and the date to which a prior art reference is entitled.
On December 27, 2020, bipartisan legislation was signed into law that will usher in significant changes to copyright and trademark law. We highlight below some of the key aspects of the new Copyright Alternative in Small-Claims Enforcement Act of 2020 (or CASE Act of 2020) and the Trademark Modernization Act of 2020 (or TM Act of 2020).
On December 7, 2020, the Federal Circuit issued a decision holding that a U.S. court can compel a party to transfer ownership over foreign patents and patent applications. The decision is SiOnyx LLC v. Hamamatsu Photonics K.K. et al., Case Nos. 2019-2359 & 2020-1217 (Fed. Cir. Dec. 7, 2020).
In Beyond Blond Productions, LLC v. Edward Heldman III et al., (C.D. Cal., CV 20-5581, August 14, 2020), the plaintiff owner of video compilations obtained an injunction directing the defendant, a copyright owner, to withdraw the takedown notices the defendant sent to non-party Amazon under the Digital Millennium Copyright Act (DMCA). The case provides an interesting example of how a party wrongfully accused of copyright infringement, after having its products removed by a competitor using the DMCA takedown process, might regain the right to offer products on Amazon or other platforms. Under the DMCA statutory scheme, once a party whose content is removed provides a “counter-notification,” the service provider retains its liability exemption only if it timely replaces the removed content on its service, unless the party who sent the takedown notice informs the service provider that it has filed a copyright infringement action.
Given the recent growth in practical applications of artificial intelligence (AI), it is not surprising that patent filings covering AI inventions have increased dramatically in the past several years. As reported last year by the World Intellectual Property Organization, more AI patent filings published in the past six years than had published in the prior 50+ years. Despite this explosive growth in AI patent filings, and despite the present importance of deep learning and other AI techniques to technological advancement, a scarcity of judicial precedent specific to AI-related patents leaves many open questions regarding whether and how best to patent AI inventions.
On October 1, 2020, the Ninth Circuit joined several other circuits in holding that the Lanham Act requires a specific finding of a likelihood of confusion to support a trademark counterfeiting claim. The panel affirmed the district court’s summary judgment of no likelihood of confusion despite the use of an identical mark on a competing product. The case is Arcona, Inc. v. Farmacy Beauty, LLC.
On September 15, 2020, the Federal Circuit granted HP Inc.’s writ of mandamus overriding another attempt by the Eastern District of Texas (EDTX) to hold onto a patent infringement lawsuit with few ties to EDTX. The Federal Circuit issued its nonprecedential opinion in Largan Precision Co., Ltd. v. HP Inc., et al., Case No. 2020-140 (nonprecedential).
Recycling a car involves separating the valuable stuff from the garbage. So does patent litigation. On September 15, 2020, in IQASR LLC v. Wendt Corp., Case No. 19-2227 (nonprecedential), the Federal Circuit affirmed a decision finding that a patent directed to car recycling separation technologies fell into the latter category because the claim term “magnetic fuzz” was indefinite.