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IP Newsletter - October/November 2018

October 1, 2018

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Supreme Court patent update
Inter partes review survives constitutional challenge
Patent trolls are a significant nuisance to a range of industries. But the U.S. Supreme Court recently upheld a procedure that makes it easier for patent trolls’ potential victims to avoid prolonged litigation or costly settlements. This article discusses inter partes review (IPR) and the U.S. Supreme Court’s finding that this type of review is constitutional. A short sidebar highlights the Court’s decision as to whether to grant IPR of challenged patents on a claim-by-claim basis.
Oil States Energy Services, LLC v. Greene’s Energy Group, No. 16-712, April 24, 2018, U.S.
SAS Institute, Inc. v. Iancu, No. 16-969, April 24, 2018, U.S.

D.C. Circuit tunes in to streaming content copyright issues
Streaming media has opened up a vast landscape of previously unavailable content for many. It’s also triggered an array of novel copyright infringement questions. This article discusses a case involving the streaming of content originating abroad into the United States, in which the D.C. Circuit Court of Appeals has tackled two previously unsettled questions about the scope of infringement liability under the Copyright Act.
Spanski Enterprises, Inc. v. Telewizja Polska, S.A., No. 17-7051, March 2, 2018, D.C. Cir.

All tied up
Court splits over trade dress, trademark claims
In 2013, the Ninth Circuit Court of Appeals ruled that a trademark holder seeking a preliminary injunction after filing suit against an alleged infringer must establish the likelihood of irreparable harm, rather than relying on a presumption of harm. Not until this year, though, has the court elaborated on the kind of proof required. This article reviews the court’s recent ruling and sheds light on what does — and doesn’t — demonstrate irreparable harm.
adidas America, Inc. v. Skechers USA, Inc., No. 16-35204, May 10, 2018, 9th Cir.

Why the Federal Circuit voted against a ballot verification patent
The U.S. Court of Appeals for the Federal Circuit, the court that hears all appeals of patent cases, continues to invalidate patents directed to abstract ideas. It applies the test established in 2014 by the U.S. Supreme Court. In a recent case, it ruled that a patent covering voting methods and systems providing for “auto-verification” of ballots was invalid as attempting to patent an abstract idea. This article examines whether the patent was abstract and in turn decided its patentability.
Voter Verified, Inc. v. Election Systems & Software LLC, No. 2017-1930, April 20, 2018, Fed. Cir.

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