August / September 2021 IP Newsletter
Don’t copy that
Lack of implied license results in copyright infringement
The Internet continues to generate new twists and issues in copyright law, forcing courts to apply traditional legal concepts to technologies not contemplated when the Copyright Act was enacted. In one recent case, the U.S. Court of Appeals for the Eleventh Circuit considered whether the publication of material on a blog or “really simple syndication” (RSS) feed granted an implied license to use the material. This article reviews why the court found that the plaintiff’s conduct didn’t constitute consent to an implied license. A brief sidebar summarizes why the court refused to reverse the jury’s rejection of the defendant’s fair use defense.
MidlevelU, Inc. v. ACI Information Group, No. 20-10856 (11th Cir. March 3, 2021); Latimer v. Roaring Toyz, Inc. (2010).
Functional color scheme isn’t protected trade dress
A product’s trade dress — the design and shape of the product or its packaging — isn’t subject to trademark protection if it is deemed functional. The word “functional” may conjure visions of parts and components, but courts can find a product’s color functional, too. This short article reviews a case involving dental products that involved just this question.
Sulzer Mixpac AG v. A&N Trading Co., No. 19-2951 (2d Cir. Feb. 18, 2021)
Can you hear us now? SCOTUS says app developers needn’t reinvent the wheel
After more than a decade of litigation, the U.S. Supreme Court has resolved a dispute between tech giants in a way that has software developers breathing a sigh of relief. The Court held that the copyright doctrine of fair use permits developers to continue to build off of the work of others in many cases without fear of infringement liability — which, in this case, could have meant billions of dollars in damages. This article summarizes the Court’s broad reading of fair use in the application programming interface context.
Google LLC v. Oracle America, Inc., No. 18-956 (U.S. April 5, 2021)
Patentee falls short on proving willful infringement
The U.S. judicial system acknowledges that patent infringement is bad — and willful patent infringement is even worse. So much so that a finding of willful infringement allows a court to increase damages up to three times the amount assessed by the jury. This article reviews a case in which a patentee discovered that willfulness isn’t easy to prove.
Bayer Healthcare LLC v. Baxalta Inc., No. 2019-2418 (Fed. Cir. March 1, 2021).