Posts in Copyright Litigation

This week in Other Barks & Bites: The Federal Circuit has asked USPTO Director Andrei Iancu to brief the appellate court on deference that should be paid to precedential PTAB opinions; China announced that it will create a credit rating mechanism for patent agents; Russ Slifer Op-Ed revives 101 debate; the FCC will approve the proposed T-Mobile/Sprint merger; amicus briefs filed at the Supreme Court support the abrogation of state sovereign immunity against copyright claims; Nintendo ramps up copyright campaign against YouTube accounts using video game music; Guns N’ Roses settles trademark dispute over craft beer brand; and copyright troll entity Malibu Media faces investor lawsuit.

This week in Other Barks & Bites: WIPO launches dispute resolution service for Chinese domain names; Morrison Foerster report shows that IP litigation costs are increasing as the number of IP matters being handled are decreasing; the Federal Circuit issues precedential decisions upholding claim construction findings at the ITC and overturning a district court jury verdict finding invalidity for being unsupported by record evidence; the Second Circuit clarifies when profits can be awarded in trademark cases; Uber IP transfer creates $6.1 billion tax break for the company; major football associations call for crackdown on Saudi piracy service; OPPO inks patent agreements with Intel and Ericsson; and Broadcom acquires Symantec’s enterprise security business.

Let’s face it, intellectual property (IP) litigation is a very expensive and risky endeavor. For the accused infringer, the prospect of going to trial means high legal fees and, even worse, a substantial disruption to the business. Even in cases where an accused infringer has viable defenses, leaving a ruling in the hands of the judge or jury is nothing more than a Las Vegas roll-of-the-dice. Whether through informal settlement discussions, mediation, or court-mandated settlement conference, IP defense litigators must arm their clients with a bevy of effective, business-minded settlement strategies. Settling does not have to mean capitulating and paying the other side an arbitrary sum of money to go away. Instead, think of ways to put your client’s available settlement dollars to work. Here are a few practical concepts to set your client on a viable settlement path.

Copyright is one of the most important intellectual property rights for any individual in America. The power to grant protection of copyrights “by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” is given to Congress in Article 1, Section 8 of the U.S. Constitution. As an author and computer programmer, I find that many of my colleagues misunderstand these rights and the protections that they afford. For this reason, I think it is important to clear up some misunderstandings in the recent IP Watchdog article, “A Question of Morals: The U.S. Approach to Plagiarism, ‘Moral Rights’, and Copyright Infringement” by Dave Davis.

Does an architect, as author of an artistic work in the form of a building covered by copyright, have a right to restrain the owner of the land to demolish the building and construct another in its place? The Delhi High Court of India recently answered this firmly in the negative in the case of Raj Rewal v. Union Of India and Ors. The Delhi Court’s judgment gave preference to requirements of urban planning over the moral rights of an architect. It held that the owner of the building has full power to dispose of or destroy it. The judgment is significant in its contribution to the jurisprudence on the scope and limitations of “moral rights” in Indian Copyright Law.

This week in Other Barks & Bites: The Federal Circuit issues several precedential decisions, including one reviving the patent claims in VirnetX and another determining that America Invents Act (AIA) validity trials don’t violate the Fifth Amendment’s Takings Clause in Celgene. This week in Other Barks & Bites: The Federal Circuit issues several precedential decisions, including one reviving the patent claims in VirnetX and another determining that America Invents Act (AIA) validity trials don’t violate the Fifth Amendment’s Takings Clause in Celgene; the USPTO proposes fee increases to patent examination and AIA trials and issues a final rule on e-filing in trademark registrations; Katy Perry is ordered to pay $2.7 million for copyright infringement; free OTA TV service Locast is targeted in a copyright suit filed by Disney and other major broadcasters; Pfizer and Mylan consider creating a global giant in off-patent drugs; the University of California files patent suits against major retailers over LED light bulb technology; and patent applications listing artificial intelligence machine inventor are filed in patent offices across the world.

The Court of Justice of the European Union (CJEU) has ruled that a phonogram producer can prevent another person from taking a sample, even if it is very short, and including it in another phonogram, “unless that sample is included in a modified form unrecognisable to the ear.” The Court was interpreting certain provisions of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the 2001 Directive) in the light of the rights enshrined in the Charter of Fundamental Rights of the European Union. See Pelham GmbH, Moses Pelham, Martin Haas v. Ralf Hütter, Florian Schneider?Esleben (Case C-476/17, July 29 2019). The case concerned a two-second sample of the Kraftwerk track Metall auf Metall, which was used in the song Nur mir, composed by Pelham and Haas. Hütter and Schneider?Esleben, members of Kraftwerk, brought an action for copyright infringement in the German courts, and the Bundesgerichtshof (Federal Court of Germany) referred six questions to the CJEU.

“It was a warm and pleasant day on the beaches of Rio de Janeiro. The waves lapped at the shore and far off a sea-bird raised its plaintive cries to the sky. She looked up from her book, thinking, ‘Wait, where have I read that that before? … ‘ “ Rather than an irksome daydream on the beach, an author’s nightmare is of having her works — or parts of them—lifted from her control and passed off as those of someone else. That is exactly the allegation that bestselling novelist Nora Roberts brings in her suit, filed in late April in a Brazilian Court, against Cristiane Serruya, a lawyer-turned-author. Nora Roberts is one of the most popular living American authors. She primarily writes romance novels, as well as police procedural (crime) fiction. Her works are solid sellers, and she has received a huge number of industry awards, as well as having more than a dozen of her works adapted into film and television productions. Hers is the type of market success that every genre author dreams of. Sadly, with widespread popularity comes risk of infringement—in this case, not of copyright infringement, but a very particular violation of authorial rights. 

Happy 4th! This week Barks & Bites comes early, starting with a bite: The Federal Circuit denies rehearing of Athena Diagnostics v. Mayo Collaborative Services, shattering the hopes of many amici and diagnostic companies; Huawei warns against politicization of IP law after the Trump Administration rolls back part of its ban against Huawei’s U.S. suppliers; Chinese President Xi Jinping talks IP theft compensation at G20 summit; USPTO announces new rule for attorneys representing foreign-domiciled trademark applicants and amends its software acquisition plan; the University of California earns a seventh patent covering CRISPR-Cas9 gene editing; Toshiba registers the UK’s first motion trademark; major U.S. tech firms plan to move production away from China; and Ed Sheeran’s copyright case is stayed until the “Stairway to Heaven” case is resolved at the Ninth Circuit.

This week in Other Barks & Bites: The Supreme Court today agreed to hear two trademark cases next term; Senators Thom Tillis and Chris Coons issue a statement regarding the recent round of patent eligibility hearings by the Senate Intellectual Property Subcommittee; four bills that would impact pharmaceutical patents and practices have passed out of the Senate Judiciary Committee; Huawei publicly calls out negative impact of Senator Marco Rubio’s legislative amendment preventing it from seeking U.S. patent infringement damages, one day after losing its trade secret case against CNEX Labs; Spotify settles a pair of major copyright suits targeting its music streaming service; Intel will reportedly auction thousands of IP assets related to wireless device technology; and revised data shows that U.S. GDP grew 3.1% during the first three months of 2019.

As we anxiously await a final decision from the U.S. Supreme Court in Iancu v. Brunetti, and decisions on pending petitions for certiorari in several other IP cases, the Court agreed to hear Allen v. Cooper on June 3. The case asks whether Congress acted appropriately in relying upon its powers under Article I of the U.S. Constitution to abrogate state sovereign immunity against federal copyright claims by passing the Copyright Remedy Clarification Act (CRCA) or if, as the Fourth Circuit held, Congress improperly abrogated state sovereign immunity by passing that law.

The Eighties are in! A contagious wave of nostalgia has infected popular culture with period TV series, from shows like Stranger Things to rebirths and reboots of the era’s shows and movies. This retro cultural appropriation was bound to involve a copyright issue. Indeed, a dispute arose over a documentary on the 1985 Chicago Bears, which made an unauthorized use of the team’s landmark music video, The Superbowl Shuffle. The Shuffle’s owners claimed an infringement on the licensing market for the work. The documentarians claimed fair use. The U.S. District Court for the Northern District of Illinois, Eastern Division, ruled for the documentarians, granting them summary judgment, in Red Label Music Publishing v. Chila Productions.

This week in Other Barks & Bites: the Wisconsin Alumni Research Foundation’s petition to the Supreme Court in a case against Apple; AAG Makan Delrahim’s remarks about misuse of antitrust law by U.S. courts; Eli Lilly’s petition to the Supreme Court regarding functional claiming rule; cert granted in Allen v. Cooper to determine state sovereign immunity against copyright claims; the list of top universities receiving U.S. utility patents; Google Buys Looker For $2.6 Billion; and the ongoing Senate debate on patent eligibility.

This week in Other Barks & Bites: the Senate IP Subcommittee announces its roster of panels for its first two of three hearings on patent eligibility in America; the U.S. International Trade Commission institutes a Section 337 investigation of lithium ion batteries over trade secret claims; reports indicate that Amazon could buy Boost Mobile; Poland files a formal complaint over the European Union’s new copyright rules; Time settlement leaves open question of copyright infringement for photos embedded on social media posts; Finjan Holdings loses patent infringement claims against Juniper; VoIP-Pal.com announces positive results at the PTAB and U.S. district court; Japan’s IP court hands win to Nintendo in Mario Kart trademark case; and the Federal Circuit vacates district court over failure to consider joining relevant patentee.

This week in Other Barks & Bites: Chinese state media pushes back on the United States’ claims of intellectual property theft; a bipartisan coalition from both houses of Congress releases a draft proposal of Section 101 patent law reform; Senator Coons seeks more information on Amazon’s privacy practices for Alexa devices; the city of Baltimore files a lawsuit over a scheme to delay market entry of a generic to the Zytiga prostate cancer treatment; the USITC institutes a patent infringement investigation of Comcast after several complaints from Rovi; USPTO Deputy Director Peters files a petition brief in a Supreme Court case over USPTO personnel expenses incurred during litigation instigated by patent applicants; and Qualcomm plans to appeal adverse ruling in Northern California antitrust case brought by the FTC.