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February / March 2022 IP Newsletter

February 1, 2022

Is limited online access to copyrighted work a “public display”?
If no one sees an unauthorized online copy of a photo, has it truly been “publicly displayed” as required for a copyright infringement lawsuit? The U.S. Court of Appeals for the Ninth Circuit recently answered that question in the affirmative in a case brought by a plaintiff who one judge characterized as a “copyright troll.”
Bell v. Wilmott Storage Svcs., LLC, No. 19-5582, -56181 (9th Cir. Sept. 9, 2021).

Failure to mark reduces patentee’s infringement recovery
Patent holders may think that their patents mean they can recover reasonable royalty damages on all infringers’ sales of their infringing products. But this isn’t necessarily the case. This article reviews a case in which the court notes that a patent holder who hasn’t complied with the marking requirement of the federal Patent Act may be awarded limited damages — even if the defendant admits it was aware of the patent.  
Lubby Holdings LLC v. Chung, No. 19-2286 (Fed. Cir. Sept. 1, 2021).<span ">

Words matter
NDA language doesn’t protect trade secrets indefinitely
BladeRoom Group Ltd. v. Emerson Electric Co., No. 19-16583 (9th Cir. Aug. 30, 2021).

TTAB still constitutional post-Arthrex
Last year, the U.S. Supreme Court found that the Patent Trial and Appeal Board’s administrative patent judges could constitutionally perform their duties only if they were appointed by the president and confirmed by the Senate. This case summarizes the U.S. Court of Appeals for the Federal Circuit’s finding on whether this reasoning applies to the Trademark Trial and Appeal Board’s administrative trademark judges. 
Piano Factory Group, Inc. v. Schiedmayer Celesta GMBH, No. 20-1196 (Fed. Cir. Sept. 1, 2021). 

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