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When Is Trade Secret Protection the Right Choice?

Companies rely on intellectual property (“IP”) rights to protect their valuable information, creations, and branding. IP rights come in several forms: copyrights, trademarks, patents, and trade secrets. As the U.S....more

Alleged Co-Inventor Not Bringing Home the Bacon This Time

Many of us have said, “Bacon makes everything better.” Can you imagine the accolades someone would receive if they contributed to an invention that improves bacon? Well, it turns out that not all contributions count when it...more

Award-Winning AI Art Not Copyrightable

Last year, Jason M. Allen won first place at the Colorado State Fair (the “Competition”) for the two-dimensional artwork entitled Théâtre D’opéra Spatial (the “Work”), which he produced with the aid of Artificial Intelligence...more

Don’t Ask Judges to Be Archaeologists

In response to Google L.L.C.’s (“Google”) and other’s petitions for inter partes review (“I.P.R.”) of two patents owned by Parus Holdings, Inc. (“Parus”), the Patent Trial and Appeal Board (“PTAB”) of the United States Patent...more

Attorney Fees Denied Due to Lack of Support in Cannabis Litigation Record

In 2018, United Cannabis Corporation (“UCANN”) sued Pure Hemp Collective (“Pure Hemp”) for infringement of U.S. Patent No. 9,730,911 (the “‘911 patent”), entitled “Cannabis Extracts and Methods of Preparing and Using the...more

USPTO Patent Fees Reduced for Small Businesses

The United States Patent and Trademark Office (“USPTO”) has reduced the patent fees for small businesses and certain other applicants. This fee reduction is part of an effort to reduce financial burdens and resulting barriers...more

Does Displaying a Flowering Plant Preclude Patenting It?

It’s not surprising to hear talk of flowers in February, but it is unusual when that discussion is in a Federal Circuit opinion. This month the Federal Circuit decided a case involving whether the display of a flowering...more

Delaware Judge Seeks to Expose Patent-Litigation Funders

Do defendants and the court have the right to ask who is funding a particular patent litigation? Chief Judge Connolly in Delaware says they do, and in In re Nimitz, the Federal Circuit denied a request to stop the judge’s...more

Do Employees Working from Home Impact Venue in Patent Litigation?

In patent infringement cases, venue is proper under 28 U.S.C § 1406(a) where either (1) the company accused of infringement is incorporated or (2) where the company has committed acts of infringement and has a “regular and...more

Tips for Avoiding Copyright Infringement

Copyright protection automatically attaches to a work when it is created. Specifically, copyright protection attaches to the original, creative work when it is fixed in a tangible medium, such as when it is written, drawn,...more

AI Systems May Invent, But Are They Inventors?

Previously, the Court of Appeals for the Federal Circuit (“Federal Circuit”) has found that a non-human may infringe patents. Arguably, an AI system, which is a non-human, can also create or invent. But can an AI system be a...more

When Can a Patent Claim Positively Include the Negative?

Most patent claims describe an invention using positive claim limitations that expressly recite the required elements or features of an invention. Sometimes, however, it is necessary, or desirable, to use a negative claim...more

Can Copyright Law Prevent Cheating on Exams?

The recent opportunities for remote work and learning have provided improvements in lifestyle for a number of employees and students. Many of those able to work or study from home have benefited from more flexible schedules,...more

Be Careful Not to Unintentionally Bargain Away the Right to File IPRs

When entering into contracts, parties commonly include forum selection clauses to govern future litigation between the parties. When doing so, parties need to actively consider whether they intend that forum selection clause...more

Preliminary Injunction Upheld in Trade Secret Dispute Despite Prior Publication

Publication of an algorithm prevents the algorithm from being a trade secret, right? Not necessarily. The Federal Circuit just reminded us that under certain circumstances that may not be the case. ...more

Will the Supreme Court Unravel the Patent-Eligibility Tangle?

Since the Alice v. CLS Bank and Mayo v. Prometheus decisions, district courts and the Court of Appeals for the Federal Circuit has struggled to determine and navigate the boundary between what is and what is not...more

Federal Circuit Clarifies Standards for Willful Patent Infringement and Enhanced Damages

Willful patent infringement can result in enhanced, and in some case treble, damages but not in every instance. Because the standard for finding willful infringement has traditionally been lower than that for enhancing...more

Juries Will Play Role In Some Questions Of Patent Eligibility

In ruling on motions to dismiss and motions for summary judgment, courts have found a number of patents ineligible under 35 U.S.C. § 101 as a matter of law. However, in Berkheimer v. HP, the Court of Appeals for the Federal...more

USPTO Requests Input On Patent Eligibility From Critical Sectors Impacted By Current Law

In recent years, the Supreme Court has decided a number of cases, including Bilski v. Kappos, Mayo Collaborative Servs. v. Prometheus Labs., Ass’n for Molecular Pathology v. Myriad, and Alice Corp. v. CLS Bank Int’l, which...more

Beer: You Know It When You Taste It, Or Maybe Not

Hard seltzer first hit the marketplace about five years ago and rapidly grew in popularity with sales exceeding $4.5 billion in 2020. Wanting to ride the wave of success, many companies have introduced hard seltzers into...more

Fair Use Shields Google In Its Copyright Battle With Oracle

Finding Google’s copying a fair use, the Supreme Court ended Oracle’s decade-long attempt to recover copyright damages. The battle began between these tech giants when Google designed its Android software platform for mobile...more

Can The U.S. Government Be Liable For Patent Infringement?

The answer is “Yes” because the U.S. government has waived sovereign immunity for claims of patent infringement. This means the U.S. government can be sued for patent infringement in at least some instances. However,...more

No Right To Appeal Even When IPR Institution Denied On Non-Substantive Grounds

One way to challenge the validity of a patent at the United States Patent and Trademark Office (“USPTO”) is through a petition for inter partes review (“IPR”). The USPTO Director has delegated responsibility to the Patent...more

Football, Beer, And Court Fights

When it comes to football, I am a huge fan and love watching games on TV. However, I do not typically pay attention to the commercials during games, with one major exception: the Super Bowl. Like most everyone, I am always...more

No Judicial Estoppel In The Case Of The On-Again, Off-Again Patent Inventor

The case of Egenera, Inc. v. Cisco Systems, Inc. raised the question of whether inventors named on a patent can be repeatedly changed as litigation strategy changes. Because of judicial estoppel, the district court said no...more

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