Growing frustration in the fashion community regarding weak or non-existent intellectual property laws has finally caught the attention of some nations. Nigeria is one nation that currently is trying to alleviate this frustration by reforming its intellectual property laws. This reform is driven, in part, because, Lagos, Nigeria has quickly risen as a fashion hub, and has been compared with such fashion centers as London, Paris, Milan, and New York. Nigerian designers have recently experienced great global success and visibility. For example, Amaka Osakwe has been pushing the limits of Nigerian fashion and has gained the attention of fashionistas in the United States and abroad. In 2014, she was invited to the White House by Michelle Obama, an admirer of her work, and her “Maki Oh” designs have been worn by Lupita Nyongo and other A-list celebrities. Last year, Ms. Osakwe was named a LVMH Louis Vuitton Moët Hennessy Finalist, placing her among the most notable young fashion designers in the world today. Other talented Nigerian designers include Duro Olowu, Deola Sagoe, Lisa Folawiyo, and Lanre DeSilva-Ajayi. As these designers continue to gain worldwide recognition, they must protect their designs from infringement both within Nigeria and globally. Continue Reading
Cryptocurrencies and blockchain technology are rapidly emerging as disruptive technologies. As has happened with many new technologies, particularly disruptive ones, a patent arms race is occurring. The number of patents being filed for these technologies is rapidly increasing.
The number of published applications shows roughly a tenfold increase over the number of issued patents.
Despite this increase in patent filing activity, many companies are unaware of what aspects of this technology can be patented and many myths and misconceptions exist. In addition to the usual misconceptions about patents (detailed below), the open source aspect of many blockchain-based inventions leads to greater confusion. The patentability of software and technology platforms does not cease just because some or all of the software is open source or built on a known protocol. Continue Reading
Federal district courts continue to apply the Supreme Court’s ruling in B&B Hardware, Inc. v. Hargis Indus., Inc., 135 S.Ct. (2015) with unpredictable results. The latest such example comes from the Southern District of New York, where Judge Buchman, in reliance on B&B Hardware, precluded the defendant from contesting likelihood of confusion. Cesari S.R.L. v. Peju Province Winery L.P., 1:17-cv-00873-NRB (S.D.N.Y. Dec. 11, 2017). Continue Reading
A summary of the European Commission’s Policy Document on standard essential patents (SEPs).
After considerable preparations and consultation the European Commission has on 29 November 2017 issued a Communication  “setting out the EU approach to standard essential patents”. This Communication is part of the wider Europe’s Digital Single Market initiative. Notably, however, this long-awaited paper is not likely to change the current landscape of FRAND litigation and licensing, and intentionally does not address the most controversial issues of the current debate. Continue Reading
A few months ago, we brought to your attention a case initiated by The Turtles, seeking royalties in New York for the unauthorized performance of their pre-1972 sound recordings. In that decision, the Court of Appeals of New York decided, on a question certified to it by the Second Circuit, that New York state law did not recognize a public performance right in pre-1972 sound recordings. We observed that other courts considering this issue, most notably the Supreme Courts of California and Florida (likewise on certified questions respectively from the Ninth and 11th Circuits) may decide likewise, namely, that under their own state laws, there is no public performance right in pre-1972 sound recordings. We now have the most recent pronouncement from the Florida Supreme Court, handed down on October 26, 2017, confirming our observation by failing to find a public performance right in pre-1972 sound recordings under Florida state law. The Court found that Florida never recognized such a right and that it would be inappropriate for a state court to create a new common law right that should normally be the province of the legislature. Continue Reading
The U.S. Copyright Office is making changes to the Digital Millennium Copyright Act (DMCA) safe harbor agent registration process. The changes impact both new online service providers as well as existing online service providers who have already registered an agent. Read on for details about what you will need to do. Continue Reading
Musical scores incorporated into films are usually produced with the specific film in mind. In the U.S., we call such works “works made for hire,” meaning that the artist does not retain authorship rights to the music. Instead, the commissioning party, which is typically the film producer or music publisher, is the author of the musical score for copyright purposes.
Internationally, however, most countries attribute authorship only to natural persons. To permit the exploitation of collaborative works, like motion pictures, the legal regimes of most of these countries grant the commissioning party the right to exclusively exercise the economic rights in the work. This does not, however, change the status of each individual creator as the “author” of his or her distinct contribution to the work. Continue Reading
This article was originally published on PatentlyO.com.
In Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., the Federal Circuit had its first opportunity to address the impact of the “or otherwise available to the public” clause contained in post-AIA 35 U.S.C. § 102. In finding that the AIA “did not change the statutory meaning of ‘on sale’ in the circumstances involved here,” the Federal Circuit provided insight into the continued relevance of the forfeiture doctrine of Metallizing Engineering v. Kenyon Bearing. Continue Reading
Section 411(a) of the Copyright Act generally requires copyright registration, or a refusal of registration, before a copyright action may be filed. This has led to a variety of decisions from the Circuit and District Courts interpreting the meaning of “registration.” It has even led to an intriguing gloss from the Supreme Court, Reed Elsevier, Inc., v. Muchnick, 559 U.S. 154 (2010), holding that Section 411(a) is not a jurisdictional requirement but merely a precondition. The Circuit Courts are now split into three groups, namely, “registration” (registration means what is says…a certificate or refusal in hand), “application” (all elements necessary for registration – an application, deposit copy and fee filed in the Copyright Office) and undecided. None of these positions can easily be harmonized potentially leading to inconsistent results and forum shopping. Continue Reading
Yesterday, in TC Heartland LLC v. Kraft Foods Group Brands, No. 16-341, the United States Supreme Court significantly changed the geography where future patent infringement suits can be filed. The patent venue statute, 28 U.S.C § 1400(b), provides that a patent-infringement lawsuit may be brought either (1) in a State where the defendant resides or (2) where the defendant has committed acts of infringement and has a regular and established place of business. In TC Heartland, the Supreme Court concluded that the “residence requirement” of the patent venue statute refers only to the State of incorporation of domestic corporations. By interpreting “resides” as “is incorporated,” the Supreme Court has significantly restricted where patent owners can file infringement lawsuits.