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Constitutional Law Intellectual Property

Read Constitutional Law updates, alerts, news, and analysis from leading lawyers and law firms:

Claim Is Gone With The Wind At Death

Two time academy award winner Olivia de Havilland seeks an expedited trial for the lawsuit involving her right of publicity. Olivia de Havilland, DBE v. FX Networks, et al, BC667011 (Superior Ct. Calif., June 30, 2017). The...more

Buyer Beware: Make Sure Your Copyright Assignment Is Valid

by Payne & Fears on

You are in negotiations with a copyright owner to obtain a license to her work, which you want to publish, distribute, and/or license yourself. You want to ensure that you have the right to enforce the copyright against...more

Fresh From the Bench: Precedential Patent Cases From the Federal Circuit

In Allied v. OSMI, the Circuit affirms dismissal of a declaratory judgment action even though Allied’s Mexican distributors had been sued in Mexico on a corresponding Mexican patent. In a first Waymo v. Uber case, the panel...more

Allergan and the Saint Regis Mohawk Tribe Enter Patent Agreement to Defend Against IPR of RESTASIS® Patents

by Knobbe Martens on

In a creative move to take advantage of recent PTAB decisions regarding Sovereign Immunity, (see e.g., Covidien LP v. University of Florida Research Foundation, IPR2016-01274 and Neochord, Inc. v. University of Maryland,...more

Allergan Avails Itself of Sovereign Immunity

The 11th amendment to the Constitution reads: The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of...more

Judge or Jury?: The Federal Circuit Holds that Patent Litigants Do Not Have a Seventh Amendment Right to a Jury Trial on...

by K&L Gates LLP on

In AIA America, Inc. v. Avid Radiopharmaceuticals, the Federal Circuit considered whether the Seventh Amendment provides the right to a jury trial to determine entitlement to attorneys’ fees. During the case on the merits,...more

Pharma Patents Assigned to Indian Tribe to Thwart Inter Partes Review

by Foley & Lardner LLP on

As we have previously reported, sovereign immunity of state universities (who are instruments of state government) has been used to avoid IPRs under the immunity clause of the US Constitution (“Sovereign Immunity of State...more

Federal Trademark Registration, the First Amendment, and Freedom of Speech: Part II

As the drum roll proceeds to the upcoming Midwest IP Institute in Minneapolis and sharing the podium with Joel MacMull of the Archer firm (and Simon Tam fame) on Thursday September 28, in a few days, I’ll be making a stop...more

A Special Thank You to Suzan Shown Harjo

Today marks the 25th anniversary of the filing of the petition to cancel the R-Word registrations held by Pro-Football, Inc., the NFL franchise playing near the Nation’s capital....more

Federal Circuit’s Amicus Brief in Oil States

Although the Federal Circuit already passed on the constitutionality of Inter Partes Reviews, considering some of its recent decisions, it appears that the Federal Circuit questions the competence of the PTAB to conduct...more

Preemption is “Part and Parcel” of the §101; But Lack of Preemption Does Not Necessarily Establish Patentability

In Return Mail, Inc. v. United States Postal Service, [2016-1502] (August 28, 2017), the Federal Circuit affirmed the PTAB’s decision that the US Postal Service had standing to challenge Return Mails patents in an CBMR, and...more

It Pays to be Persistent if PTAB Rulings Violate Due Process Ultratec v. CaptionCall and Matal (Fed. Cir. 2017)

by Brinks Gilson & Lione on

In Ultratec, the Federal Circuit cited several problems with the Board’s permissive rules of trial proceedings and held the Board abused its discretion in its consideration of supplementary evidence. The Board’s regulations...more

Gavel to Gavel: Scandalous and immoral (trademarks)

by McAfee & Taft on

Since 1946, federal law has prohibited registration of scandalous, immoral and disparaging trademarks. This summer, the U.S. Supreme Court found the prohibition on disparaging trademarks to be unconstitutional, creating...more

Are Offensive Trademark Registrations On The Rise?

by Fox Rothschild LLP on

In direct response to the U.S. Supreme Court’s decision striking down the constitutionality of section 2(a) of the Lanham Act, which as enacted barred the registration of disparaging trademarks, there is reason to believe...more

The Washington Redskins Win Their Trademark Battle in Overtime

by Garvey Schubert Barer on

Simon Tam of the Asian rock band, The Slants, probably was not envisioning an 8-year-long legal battle when he chose the group’s name. Slant is known as a racial slur for Asians. Tam hoped to strip the term of its derogatory...more

Zazzle Fizzles: Website Operator Denied Copyright Safe Harbor Protection for Its Sale of Physical Products Featuring...

We discussed last year the trend toward companies seeking to monetize user-generated content. A recent Central District of California decision in Greg Young Publishing, Inc. v. Zazzle, Inc. serves as an important reminder of...more

Sovereign Immunity Cannot Protect Patent Co-Owned by Private Party

by McDermott Will & Emery on

Addressing for the first time the issue of whether an inter partes review (IPR) may proceed where one of the co-owners was entitled to sovereign immunity under the 11th Amendment, the Patent Trial and Appeal Board (PTAB) held...more

Federal Circuit Rules in Favor of Public Interest Group Standing at PTAB

by Jones Day on

In Personal Audio, LLC. v. Electronic Frontier Foundation, No. 2016-1123 (Fed. Cir. Aug. 7, 2017), the Federal Circuit reviewed a Patent Trial and Appeal Board (“PTAB”) decision invalidating claims of U.S. Patent No....more

Ninth Circuit Construes Family Movie Act and Affirms Injunction Against Streaming Service

by Snell & Wilmer on

In December 2016, a California federal court issued a preliminary injunction against VidAngel, Inc.’s custom-filtered video streaming service. Thursday, in Hollywood Studios v. VidAngel, Inc., a Ninth Circuit panel affirmed...more

Texas Supreme Court Announces New Rule for Exemplary Damages

by Strasburger & Price, LLP on

The Due Process Clause of the Fourteenth Amendment prohibits the imposition of excessive exemplary damages. Whether an award comports with due process is measured by three guideposts...more

More Details on Matal v. Tam: Are Other Parts of The Lanham Act at Risk?

by Revision Legal on

As we recently discussed in June, the US Supreme Court declared the disparagement clause of the Lanham Act unconstitutional as a violation of the free speech clause of the First Amendment. In general, the disparagement clause...more

AD-ttorneys@law

by BakerHostetler on

“Iron Mike” Tyson is a controversial sports figure who seems in equal parts loved and loathed by the public. Celebrated for a genuine world-class talent and derided for his behavior in and out of the ring, Tyson has a public...more

In Matal V. Tam, Scotus Rules Prohibition On Disparaging Trademarks Unconstitutional

The Asian American members of the band the Slants adopted that name to “reclaim” and “take ownership” of the derogatory term. The United States Patent and Trademark Office (“USPTO”) refused to register a trademark application...more

Standing to Appeal PTAB Decision to Federal Circuit is Measured for the Appellant, Not the Appellee

by Knobbe Martens on

The Federal Circuit determined that Article III standing was not necessary for an appellee to participate in a judicial appeal of an IPR final written decision because the appellant had Article III standing in Personal Audio,...more

Check Each Link in the Chain of Title; The Time to Find Out Your Assignor Does Not Exist is Before you Sue

In In re Certain Thermoplastic-Encapsulated Electric Motors, 337-TA-1052, (August 11, 2017), Administrative Judge Dee Lord dismissed Intellectual Ventures II LLC complaint asserting infringement of U.S. Patent Nos. 7,154,200;...more

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