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IP Newsletter - August / September 2018

August 1, 2018

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Can licenses limit competitors’ use?
Copyright ruling hits third-party software support providers
Purchasers of software know that it’s not just the license that can take a bite out of their wallets — it’s also the costly maintenance contracts. Third-party providers have begun offering licensees cheaper maintenance and support alternatives. But as this article shows, one software company has struck back, and the favorable ruling it obtained in its copyright infringement lawsuit against a third-party provider may make it harder for such businesses to compete. A short sidebar looks at the defense of copyright misuse and why it failed in this case.
Oracle USA, Inc. v Rimini Street, Inc., No. 16-16832, -16905, Jan. 8, 2018, 9th Cir.

Breaking news
Selling access to clips of copyrighted programming isn’t fair use
In an era that features hundreds of television channels and interactive, interconnected media, video clips have become a hot item. Not surprisingly, though, the sale of such clips by third parties raises copyright infringement concerns, as demonstrated by a recent case heard by the Second Circuit Court of Appeals and summarized in this article.
Fox News Network, LLC v. TVEyes, Inc., No. 15-3885, Feb. 27, 2018, 2d Cir.

How the on-sale bar can threaten a patent
It’s easy to understand an inventor’s urge to get a new product to market. But that urge can backfire if a patent application hasn’t yet been filed. Under the on-sale bar, the inventor could lose patent protection altogether. This article examines a case in which a pharmaceutical company learned this the hard way.
The Medicines Co. v. Hospira, Inc., No. 14-1469, Feb. 6, 2018, Fed. Cir.

Giving trade dress infringement claim a shot
The hurdle for proving trade dress infringement is high because a plaintiff must produce evidence of nonfunctionality — and product design often serves purposes beyond mere identification of the product’s source. This article reviews a case from the Sixth Circuit Court of Appeals where the court determined the plaintiff had succeeded.
Leapers, Inc. v. SMTS, LLC, No. 17-1007, Jan. 10, 2018, 6th Cir.

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