Intellectual Property

A look at the latest developments in intellectual property law.

Copyright law has long struggled to keep pace with advances in technology, and the debate around the copyrightability of AI-assisted works is no exception. At issue is the human authorship requirement: the principle that a work must have a human author to be eligible for copyright protection. While the Copyright Office has previously cited this "bedrock requirement of copyright" to reject registrations, recent decisions have focused on the role of human authorship in the context of AI.

In September 2024, the Federal Circuit clarified the necessary qualifications for a technical expert to testify in a patent lawsuit, holding that while an expert must possess ordinary skill in the art, they need not have possessed such skill "at the time of the alleged invention."

When something is referred to as a "knockoff" it typically implies that the knockoff product is similar in appearance to an earlier product and is unlawful. But that is not always the case. Indeed, there can be infringing knockoffs and noninfringing knockoffs. It depends on the facts and circumstances. To appreciate the difference, a look into the general rules and some specific cases is needed.

A federal appeals court departed from five sister circuits determining damages in a copyright infringement case, taking a position the Copyright Alliance called "a cruel joke."

Federal Circuit: Falsely Claiming That a Product Feature is Patented Can Give Rise to a False Advertising Claim Under the Lanham Act Federal Circuit: A Prior Decision in an IPR Does Not Collaterally Estop the Patentee in a Subsequent Litigation Where Invalidity Must be Proven by 'Clear and Convincing Evidence'

The International Trade Commission is empowered to block the importation into the United States of products that infringe U.S. intellectual property rights, In the past, the ITC generally instituted investigations without questioning the importation allegations in the complaint, however in several recent cases, the ITC declined to institute an investigation as to certain proposed respondents due to inadequate pleading of importation.

Although pursuit of an appeal to the Federal Circuit may under some circumstances prove to be quicker and less expensive, appeals to district courts are becoming increasingly attractive given recent changes in the law and USPTO practice in defending these actions.