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Cantor Colburn | February/March 2026 Ideas on Intellectual Property Law
First-filer vs. second-filer
Federal Circuit clarifies AIA derivation proceedings
More than a decade after the America Invents Act (AIA) shifted the U.S. patent system from a “first-to-invent” to a “first-to-file” system, the U.S. Court of Appeals for the Federal Circuit has weighed in for the first time on a derivation proceeding under the law. The ruling sheds valuable light on the proper framework for such proceedings under the AIA. This article discusses the law and why the case provides yet another reason for inventors to promptly file their patent applications. It also highlights the need to maintain careful documentation of invention conception to corroborate inventor testimony. A brief sidebar covers whether actual reduction to practice is always necessary for complete conception to occur.
Global Health Solutions LLC v. Selner, No. 23-2009, Aug. 26, 2025, Fed. Cir.
Bayh-Dole Act
How patent march-in rights really work
Back in 1980, the Bayh-Dole Act established a federal patent policy that allows recipients of federal funding to retain ownership of patent rights in inventions created with such funding. Certain restrictions apply, though, including “march-in rights.” The law and this particular restriction have been the subject of much misinformation lately, leading to a fear of heightened federal scrutiny over inventions subject to it. This article reviews what federal funding recipients need to understand about the basic aspects of the Bayh-Dole Act if they wish to avoid running afoul of its requirements and retain ownership of the patent rights.
35 U.S.C. §§203, 204
Are NFTs “goods” for trademark purposes?
The U.S. Court of Appeals for the Ninth Circuit recently ruled in a case of critical importance to creators of nonfungible tokens (NFTs) and other digital offerings. This article highlights the ruling that extends to NFT creators potentially valuable trademark rights in NFT names, logos and other protectible elements.
Yuga Labs, Inc. v. Ripps, No. 24-879, July 23, 2025, 9th Cir.
Understanding the derivative works exception to copyright’s termination right
The drafters of the Copyright Act thought ahead in ways authors might not. They included a termination right to free authors from the consequences of granting their copyright rights before they understood the true value of their works. The termination right is subject to what’s called the derivative works exception, though. This article reviews a recent case in which one grantee tried to push the boundaries of that exception, with the U.S. Court of Appeals for the Second Circuit closing the book on the claim.
Atticus Limited Liability Co. v. The Dramatic Publishing Co., No. 23-1226, July 29, 2025, 2d Cir.
