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This week in Other Barks & Bites: the Supreme Court grants a copyright case; the Writers Guild of America reaches an agreement with Hollywood studios that offers writers some copyright protections from AI-generated scripts; the CAFC affirms a PTAB decision that invalidated a medical alarm patent; and Getty Images releases a commercially safe AI generative tool.
Supreme Court Grants Warner Music’s Petition on Retroactive Relief Under Copyright Act
The U.S. Supreme Court on Friday, September 29, granted Warner Chapell Music, Inc.’s petition for certiorari, limited to the question: “Whether, under the discovery accrual rule applied by the circuit courts and the Copyright Act’s statute of limitations for civil actions, 17 U. S. C. §507(b), a copyright plaintiff can recover damages for acts that allegedly occurred more than three years before the filing of a lawsuit.” The case arises out of a U.S. Court of Appeals for the Eleventh Circuit ruling that held “when a copyright plaintiff has a timely claim under the discovery accrual rule for infringement that occurred more than three years before the lawsuit was filed, the plaintiff may recover damages for that infringement.”
Vidal Updates Stakeholders on USPTO AI Efforts
U.S. Patent and Trademark Office Director (USPTO) Kathi Vidal published a Director’s
Blog today providing a comprehensive update on the Office’s recent initiatives surrounding artificial intelligence, from enhanced searching capabilities to how AI should be assessed for inventorship. According to the blog, examiners have conducted over 1.3 million searches using AI search tools and the Office is exploring ways to make these tools publicly available.
CAFC Rejects Masimo’s Appeal to Overturn Invalidation of Medical Alarm Patent
On Thursday, September 28, the U.S. Court of Appeal for the Federal Circuit (CAFC) affirmed a Patent Trial and Appeal Board (PTAB) decision that invalidated claims in a Masimo Corporation medical alarm patent. The patent covered an alarm system that can be used in combination with pulse sensors to alert medical services of emergencies. Masimo argued that the Board erred in two claim constructions and abused its discretion when evaluating an argument brought forward by Sotera, the company that filed the inter partes review (IPR) with the PTAB. Ultimately, the appeals court agreed with the PTAB and found that the decision was supported by substantial evidence.
Gene Quinn Named Leading IP Strategist by IAM Strategy 300
On Thursday, September 28, IPWatchdog Founder and CEO Gene Quinn was listed as a leading strategist in the IAM Strategy 300, The World’s Leading IP Strategists 2023. According to the publication’s methodology, the guide “identifies the individuals who are leading the way in the development and implementation of strategies that maximise the value of IP portfolios.” Strategists must be nominated “by at least three people from outside of their own organization” and then further vetted for “exceptional skill sets, as well as profound insights into the development, creation and management of IP value.”
VirnetX Asks SCOTUS to Review Proper Time Limits for Joined Parties in IPR Petitions, Director Review Authority
In a petition docketed Wednesday, September 27, VirnetX has asked the Supreme Court to review: 1) whether the U.S. Court of Appeals for the Federal Circuit properly upheld joinder of a party to an inter partes review (IPR) where the joined party did not properly file a petition for IPR within the one year statutory time limit; and 2) whether VirnetX’s petition for Director Review was properly denied since the Commissioner for Patents was exercising the Director’s review authority at the time, which VirnetX argues violated the Federal Vacancies Reform Act.
Jury Slaps Adobe with $33.8 Million Penalty for Infringing on Software Company’s Patent
On Wednesday, September 27, a Delaware jury agreed that Adobe must pay $33.8 million to ViaTech Technologies for infringing on a patent regarding a digital content system. Adobe previously used the patented technology to allow users to activate copies of their popular software including Photoshop. The jury also agreed that ViaTech proved by a preponderance of evidence that Adobe infringed on its patent.
Eli Lily Wins Reversal of $176.5 Million Ruling in Patent Dispute with Teva
On Tuesday, September 26, a Massachusetts district court overturned a jury verdict that awarded Teva Pharmaceutical $176.5 million in damages in its patent dispute with Eli Lily. Teva claimed Eli Lily’s migraine medication infringed on three of its patents, however, the Massachusetts judge ruled that Teva’s patents “are invalid on the basis of inadequate written description and lack of enablement.” Eli Lily also argued that the future lost profits figure brought forward by Teva’s expert should be overruled for being too speculative, but the judge did not agree. While the court noted it did not need to reach the issues of enablement or future lost profits given the invalidity finding, it chose to “undertake the analysis” anyway because “this decision will doubtless be reviewed” and “for the sake of completeness.”
Getty Images Releases Commercially Safe Generative AI Tool
On Monday, September 25, Getty Images announced the launch of what it deems a commercially safe generative AI tool. Getty trained the new tool in collaboration with NVIDIA using Getty Images’ library of images fully indemnified for commercial use. “We’re excited to launch a tool that harnesses the power of generative AI to address our customers’ commercial needs while respecting the intellectual property of creators,” said Craig Peters, CEO at Getty Images. Those using the tool will receive a royalty-free license “Getty Images’ standard royalty?free license, which includes representations and warranties, uncapped indemnification, and the right to perpetual, worldwide, nonexclusive use in all media,” and Getty Images contributors will be compensated.
Hollywood Writers Accept Tentative Agreement that Includes Copyright Protection from Generative AI
On Wednesday, September 27, the Writers Guild of America accepted a tentative agreement with studios to end their strike with extra copyright protections for writers. One of the biggest sticking points for the writers was the potential for studios to use generative AI to write scripts based on previous scripts. The agreement includes provisions that AI-generated work must be disclosed, and that writers cannot be mandated to work with AI or not included on a project because they refuse to do so. Thus, the agreement does not ban the use of AI with studios expressing interest in using the technology.
USCO Publishes Modifications to Proposed Rulemaking on Royalty Payments
On Tuesday, September 26, the U.S. Copyright Office (USCO) published a supplemental notice of proposed rulemaking that modifies an earlier proposal regarding exceptions to termination rights under the Copyright Act. The new modifications expand the scope of the proposed rule to additionally address the identification of the proper payee to whom the mechanical licensing collective must distribute royalties. Initial written public comments can be submitted to the USCO before the October 26 deadline with replies due on November 13.
USPTO Issues 1 Millionth Design Patent
On Tuesday, September 26, the USPTO issued its one-millionth design patent to Agustina Huckaby, a licensed cosmetologist, for an ornamental design for a comb. The Office keeps a running track of milestones in U.S. patenting on its website. “Small businesses like Agustina’s have valuable intellectual property that they can protect and license – if they so choose – through design patents. From the original Coca Cola bottle to the Statue of Liberty to the Medal of Honor and beyond, design patents protect iconic and unique designs, and help businesses grow and prosper,” said Kathi Vidal, Under Secretary of Commerce for Intellectual Property and Director of the USPTO.
Netflix Loses Video Coding Patent Case in Germany
On Monday, September 25, Broadcom announced that a German court issued Netflix an injunction asking the streaming company to cease and desist its violation of a Broadcom video coding patent. The court found that Netflix was infringing on Broadcom’s patent in order to deliver Ultra HD content. The legal dispute began in 2018, and now Netflix is banned from streaming content that uses technology related to the patent.
Judge Tosses Out Copyright Lawsuit Against Jay-Z
On Monday, September 25, a New York district court judge dismissed a copyright lawsuit filed against rapper Jay-Z, producer Timbaland, and singer Ginuwine. The soul singer Ernie Hines accused the trio of infringing on his copyright when they made two songs “Paper Chase” and “Toe 2 Toe.” The accused trio admitted to copying notes from Hines’s song without permission, but they argued it was not original enough to be eligible for copyright. In the end, the district court agreed with Jay-Z, Timbaland, and Ginuwine, and dismissed the case.
This Week on Wall Street
FTC and 17 States Sue Amazon for Anticompetitive Actions to Maintain a Monopoly
On Tuesday, September 26, the Federal Trade Commission (FTC) and 17 state attorneys general filed a lawsuit against Amazon accusing the online retail giant of “anticompetitive and unfair strategies to illegally maintain its monopoly power.” Additionally, the lawsuit claims that Amazon’s actions prevent rival companies from lowering prices and fairly competing with the conglomerate. “The complaint sets forth detailed allegations noting how Amazon is now exploiting its monopoly power to enrich itself while raising prices and degrading service for the tens of millions of American families who shop on its platform and the hundreds of thousands of businesses that rely on Amazon to reach them,” said FTC Chair Lina M. Khan.
JP Morgan CEO Warns 7% Interest Rate May Cause Stagflation
On Tuesday, September 26, JP Morgan CEO Jamie Dimon told The Times of India that the world economy is not ready for 7% inflation. The Federal Reserve kept the interest rate steady last week between 5.25% and 5.5%. The comments come as many analysts are predicting a light at the end of the tunnel when it comes to interest rate hikes. On the U.S. economy, Dimon said, “I would be cautious. I think we are feeling pretty good because of all the monetary and fiscal stimulus, but it may be a little more of a sugar high.”
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