Category Archives: Intellectual Property

Defend Trade Secrets Act: Got Trade Secrets? Protect Them With Federally-Issued Gun

Trade secrets are protected, right? They cannot be stolen or misappropriated, right? You are probably shaking your head at this. Right, right. But if they are, what can you really do about it? Have the grubby thief thrown in jail? Sure, but that’s not going to restore your loss—get you back the money you are now …

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Supreme Court Defers Certiorari Decision In Amgen Sandoz

On June 20, 2016, instead of deciding whether to grant certiorari in the biosimilar patent dance dispute between Amgen and Sandoz, the Supreme Court invited the Solicitor General “to file a brief in this case expressing the views of the United States.” While this will delay any Supreme Court review of the Federal Circuit’s first decision interpreting the …

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Band Led Zeppelin Says Song Chords Too Common to Copyright

Can you say “Stairway to Heavy Royalties?” You may have imagined the old Led heads, Robert Page and Jimmy Plant, sitting in a grungy garage somewhere back in the seventies striking those iconic four chords for the first time and truly crafting the song “Stairway to Heaven” from whence there was none. Now you may …

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Patent Prosecution: “Unclean Hands” Doctrine Erases Merck’s Damage Award

In my last post on the district court’s ruling in Gilead v. Merck, I implied that Gilead had convinced the Judge that Merck had employed inequitable conduct (“IC”) in conducting its negotiations with Pharmasset, the company Gilead later purchased to obtain the rights to the HCV drug, sofosuvir or Solvaldi®. However, I was reading and …

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Supreme Court Stryker/Halo Decision Makes it Easier for Courts to Award Enhanced Damages In Patent Infringement Cases

The recent Supreme Court decisions in the Stryker and Halo cases just made it easier for courts to award enhanced damages in patent infringement cases, discarding Seagate’s “objective recklessness” test. The Seagate Test In 2007, the Federal Circuit announced a test for enhanced damages whereby a plaintiff seeking enhanced damages had to show that the infringement of his patent was …

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Short Samplings of Songs May Not Be Considered Copyright Infringement After All

The Ninth Circuit Court of Appeals just decided that song sampling without permission does not necessarily infringe the copyright. Many artists have built careers by sampling an old song to create a new work. Until now, courts have told the artist to “get a license or do not sample.” The Sixth Circuit Court of Appeals …

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Supreme Court Cert: Laches (in Patent Cases) and Copyrightable Subject Matter to Be Reviewed

Laches The Supreme Court of the United States granted certiorari to review a patent case on the law of laches. SCA Hygiene Products v. First Quality Baby Products, Case No. 15-927 (Supr. Ct., May 2, 2016). In its cert petition, SCA argued that the en banc decision of the US Court of Appeals for the Federal Circuit conflicts with the Supreme Court’s …

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Google Tries “Pretty Woman” Tactic in Oracle Copyright Suit

I’m not sure Julia Roberts’ use of that blonde wig and eighties cut-out dress when she leaned against Richard Gere’s car in Pretty Woman should be considered “fair use,” but perhaps a court might say otherwise. How does Julia’s transformation from wayward to womanly in that iconic 1990 film come into play in a fight between …

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The Federal Defend Trade Secrets Act: Impact on Employers

On May 11 2016, President Obama signed The Defend Trade Secrets Act (“DTSA” or the “Act”). Effective immediately, the DTSA creates a federal civil cause of action that allows companies to file civil lawsuits for trade secret theft under the federal Economic Espionage Act. Before the passage and signing of the DTSA, the statute only provided for criminal cases …

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Artist Formerly Known as a Trademark: Prince

I’m sure his name came immediately to mind when you read that title: Prince. That was, at least, before he changed it to the unpronounceable, androgynous “Love Symbol.” While many thought this was a marketing stunt, Prince’s “formerly known as” campaign was actually an attempt to skirt a heated legal battle with his record label, Warner …

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