Features
Bankruptcy: What Happens to the Royalty Payments?
In a decision interpreting for the first time certain provisions in the Bankruptcy Code, the Third Circuit Court of Appeals concluded that royalty payments belonged to the estate of the bankrupt debtor/licensor rather than to the new owner by assignment of the underlying intellectual property covered by the licenses. <i>In re CellNet Data Systems, Inc.,</i> 327 F.3d 242 (3d Cir. 2003). The Third Circuit held that the debtor/licensor was permitted to sever the right to receive the remaining royalty payments due on the license from the transfer of the underlying intellectual property rights.
Features
Look, But Don't Touch: The Consequences of Removing, Modifying or Destructing Visual Art in Buildings
Unknowing building owners can incur substantial liability when incorporating certain artistic works within their buildings. The Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. 106A, limits the ability of a building owner to alter, move, or remove a "work of visual art." This article will provide an overview of this statute and its interpretation and application by various courts.
IP News
Highlights of the latest intellectual property news and cases from around the country.
IP News
Highlights of the latest intellectual property cases and news from around the country.
The Reverse Doctrine of Equivalents Part 1 of 2
The ability of patents to encourage innovation by granting exclusive rights is well-recognized. However, patents can serve an antithetical role as well by, in certain circumstances, deterring, rather than encouraging, innovation.
Enforcing Reverse Engineering Prohibitions in Shrink- and Click-wrap Licenses: A Report on Bowers v. Baystate Technologies, Inc.
The practice of "reverse engineering," whereby one company obtains the product of a competitor and works backwards "to divine the process which aided in its development or manufacture," has long been accepted as a legitimate (and sometimes wholly necessary) practice in the computer software marketplace. <i>Kewanee Oil Co. v Bicron Corp.</i>, 416 U.S. 470, 476 (1974).
Patent Infringement Damages: Riding The Wine Railway Can Be Expensive
When the plaintiff in a patent litigation contends that it has never made or sold the product protected by its patent, alarm bells should start clanging in the ears of defense counsel. For the odds are that the plaintiff is angling to take advantage of a little-used aspect of the law of patent damages that can lead to a windfall recovery for patent infringement. It is the <i>Wine Railway</i> exception to the well-known "notice" provision of the patent statute. Created by the Supreme Court in <i>Wine Railway Appliance Co. v. Enterprise Railway Equipment Co.</i>, 297 U.S. 387 (1936), the exception can lead to catastrophic and unforeseen patent damage awards. Such damages are unforeseen (and, some would argue, unfair and undeserved) because they arise without any notice of infringement, actual or constructive.
Features
Moseley Revisited: What the Victoria's Secret Case Means
The Supreme Court's recent Federal Trademark Dilution Act (FTDA) opinion, <i>Moseley et al. dba Victor's Little Secret v. V Secret Catalogue, Inc. et al.</i>, has a number of practical consequences. It settled an issue that had split the Circuits for years: whether actual dilution or a "likelihood of dilution" must be shown to establish an FTDA violation. Dilution law seeks to prevent the diminution or whittling away of a famous trademark's value through another's commercial use of the same or a similar mark. That somewhat abstract harm suggests the less concrete "likelihood of dilution" standard would more logically apply.
Bodily Appropriation" Of A Creative Work: Can Trademark Law Provide A Remedy When Copyright Law Cannot?
Can the victim of infringement of a creative work find relief under the trademark law, when relief under the copyright law may not be available, without the need to prove likely consumer confusion? With the Circuit courts split, the Supreme Court recently agreed to decide the issue in <i>Dastar Corp. v. Twentieth Century Fox Film Corp.,</i> U.S. NO. 02-428 (granting <i>cert.</i> on January 10, 2003)
IP News
Highlights of the latest intellectual property cases from around the country.
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