On day one of the new year, we continue the IPWatchdog tradition of asking readers what they would like to see happen if their every IP wish could come true. Some commenters stuck with more realistic asks, such as for patent eligibility reform to move forward or that an extension of the waiver of IP rights under the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS) will be opposed. Others went out on a limb by pulling for a new central patent court based in Hawaii or that congress will get its act together, for instance. Of course, the most popular dream articulated below is once again that patent eligibility certainty will be restored, either by the courts or congress.

We are less than 24 hours out from 2024 and, after reflecting on what mattered in 2023 and other year-in-review recaps, it is now time once again to ponder what lies ahead. From exciting patent legislation to Supreme Court trademark and copyright cases that could have big implications, here is what the IPWatchdog community will be keeping on its radar in the new year. 

Arbitration, including international arbitration, can be a beneficial tool for the enforcement of patent portfolios, license agreements and infringement disputes. When entering into agreements/licenses (including commercial supplier, distributor and partnership agreements), parties may deem it useful to include an arbitration provision to resolve any disputes arising from those agreements. As such, parties can take advantage of the numerous benefits of international arbitration in the event of a dispute relating to intellectual property, in contrast to relying on district court proceedings.

In Part I of this article, we recapped some of the most notable trade secret cases of the past year that dealt with issues such as proving secrecy and exercising reasonable efforts, as well as the publication of a key judicial resource for trade secret cases. Below, we continue with some of the top trade secret cases and subject matter the courts addressed in 2023.  

On December 26, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision in K-fee System GmbH v. Nespresso USA, Inc., reversing a claim construction ruling and summary judgment of noninfringement issued by the Central District of California. In construing the claim term “barcode” de novo, the Federal Circuit found that the district court erred in finding that its definition expressly excluded “bit codes” in light of the patent owner’s representations during European patent opposition proceedings.

Yesterday, the U.S. Court of Appeals for the Federal Circuit (CAFC) stayed the International Trade Commission’s (ITC’s) October 26 Limited Exclusion Order (LEO) against certain Apple Watches that the ITC found infringed on two Masimo patents that covered technology related to reading blood-oxygen levels. The CAFC does not appear to have published the order on its public website but it is widely available online.

Many IP attorneys have expressed concerns about complying with confidentiality duties while using large language models (LLMs). For example, in a recent panel at the U.S. Patent and Trademark Office (USPTO), multiple panelists expressed the opinion that attorneys should not perform LLM queries because LLM queries are stored remotely while Internet searches are not. The goal of this article is to explore, as examples, Google’s and OpenAI’s data retention policies and the intersection of those policies with attorneys’ confidentiality duties.

The most significant development in IP in Europe in 2023—indeed arguably the most significant in nearly 30 years—was the launch of the Unitary Patent and Unified Patent Court on June 1. The full implications of this are explored here. Beyond the UP and UPC, however, there were a number of. important developments in Europe affecting all the main IP rights.

In Part I of our year end summary of key developments regarding patents subject to a commitment to license on a Fair Reasonable and Non-Discriminatory (FRAND) or Reasonable and Non-Discriminatory (RAND) basis, we looked at various developments involving patent pools and reviewed some interesting damages awards and interlocutory decisions. In this installment, we consider a pair of antitrust cases dismissed in 2023 and explore what may come next on the policy front.

Trade secrets in the United States have a fascinating history, during which courts shaped the common law tort as a way to enforce confidential relationships. Now the legal framework is statutory, with some version of the Uniform Trade Secrets Act (UTSA) in effect in every state except New York, and with uniformity in the federal system thanks to the Defend Trade Secrets Act of 2016 (DTSA). Nevertheless, the law continues to evolve much as it did a century ago—that is, through the opinions of judges deciding individual cases on their facts. What follows is a selection of those decisions, along with other resources, which have come out during the past year and which I believe provide helpful guideposts about important aspects of trade secret law and practice.

This year has seen a bonanza of significant trademark decisions, including several high- profile decisions from the Supreme Court. Courts ruled on issues ranging from First Amendment and parody considerations to the extraterritorial reach of U.S. trademark law, yet in most cases returned to basic principles of trademark law to resolve the open issues. Below is a selection of a few of those significant cases from the previous year.

The complex rules of copyright and trademark law are designed so that creators of popular expressive works and companies marketing authentic branded products are properly protected. This Christmas, we’re looking at a series of rulings from U.S. federal courts on intellectual property (IP) issues involving holiday ornaments, public displays with light sculptures, as well as one of the most popular Christmas songs ever. These cases don’t simply show that a Santa Claus can be designed with non-generic copyrightable elements; they also show members of the U.S. federal judiciary working diligently to properly dispense justice on IP questions between the adverse parties arguing before them.

Another year of IP is behind us, and it is time to reflect on what mattered most—what decisions will affect practice for years to come and/or continue to play out in the courts as we move into 2024? Below are reflections on milestones from this past year—some positive, some negative, and some neutral–at least for now.

Copyright exits everywhere—from books on a library shelf to music playing on the radio, to the software running the electronic device on which you are reading this article. Copyright’s broad scope and extensive reach foster a varied and fascinating landscape of copyright cases. From cases involving the use of a celebrity photograph, animated dancing video game characters, to artificial intelligence (AI) infringement inquiries, the number and type of matters copyright touches is seemingly infinite. This provides an evergreen bounty of copyright cases to digest. The following highlights some of the top copyright decisions of 2023.

On this episode of the Clause 8 podcast, Patrick Kilbride and returning guest Brad Watts join Eli Mazour to talk about the U.S. Chamber’s new initiative, the current narrative on IP rights and the forces that shaped it, the themes of the IP Principles document, and what they hope to accomplish. They also discuss why the U.S. Chamber cares so much about IP issues, whether patents are underappreciated compared to other IP rights, and much more!