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LJN - Intellectual Property Strategist The newsletter publishing arm of ALM, publishers of The National Law Journal, The American Lawyer and legal newspapers of record throughout the U.S.

  • Fourth Circuit Rules that Website's Unauthorized Posting of Stock Photograph Was Not 'Fair Use'
    on November 1, 2019 at 5:09 am

    The decision in Brammer v. Violent Hues sheds some light on when re-posting will be a "fair use" and when it will give rise to liability.       

  • How the U.S.-China Trade War Effects IP Strategy
    on November 1, 2019 at 5:07 am

    The trade war between the United States and China has had far-reaching effects on international trade and the global economy. The dispute is slowly developing into a battle of attrition, without any immediate resolution on the horizon despite ongoing trade talks. As businesses change the way they operate in response to this unpredictable trade environment, counsel should consider the risks and potential impacts on corporate IP strategy.       

  • The California Consumer Privacy Act: Everything You Wanted to Know But Were Afraid to Ask
    on November 1, 2019 at 5:05 am

    Part One of a Two-Part Article The California Consumer Privacy Act (CCPA) is a comprehensive new consumer protection law set to take effect on Jan. 1, 2020. In the wake of the CCPA's passage, approximately 15 other states introduced their own CCPA-like privacy legislation, and similar proposals are being considered at the federal level. Part One of this article covers how the CCPA applies to businesses — both in and outside California, the revenue threshold, proposed amendments and other open issues.       

  • IP News
    on November 1, 2019 at 5:03 am

    More Than a Recitation of Hooke's Law Needed for Patent Protection A Claim for a Chair Limits the Claim to a Chair       

  • The Madrid System Turns 30: The Pros and Cons of Using the Madrid Protocol in the United States and for U.S. Based Companies
    on October 1, 2019 at 7:21 am

    This summer, the Madrid System turned 30 years old, and as two more countries prepare to join the Madrid Protocol we look at how the Madrid System has grown as it enters full adulthood.       

Planet Depos We Make It Happen

  • Planet Depos Celebrates 10 Years in Court Reporting
    by Suzanne Quinson on November 6, 2019 at 4:00 pm

    As Planet Depos turns 10, we look back over the past decade to see everything that brought us to today. It all started with a vision. The post Planet Depos Celebrates 10 Years in Court Reporting appeared first on Planet Depos.

  • At A Glance: Taking Depositions in the Middle East & South Asia
    by Suzanne Quinson on October 30, 2019 at 5:00 pm

    Between the climate and politics, the Middle East and South Asia regions are hot topics. When it comes to taking depositions, though, it's mostly cut and dry. The post At A Glance: Taking Depositions in the Middle East & South Asia appeared first on Planet Depos.

  • The Importance of the Court Reporter’s Neutrality
    by Kathy DiLorenzo on October 16, 2019 at 5:00 pm

    Court reporters are the “keepers of the record.” Their impartiality is one of the three legs upon which the American justice system stands. The post The Importance of the Court Reporter’s Neutrality appeared first on Planet Depos.

  • Divorce and Depositions: What You Need To Know
    by Planet Depos on October 2, 2019 at 5:00 pm

    Getting to the truth of the matter in a divorce is key. Guest author Russell Knight discusses divorce and the role discovery and depositions play in the process. The post Divorce and Depositions: What You Need To Know appeared first on Planet Depos.

  • Taking Depositions of Remote Witnesses in Truly Remote Places
    by Suzanne Quinson on September 25, 2019 at 5:00 pm

    To take a deposition of a remote witness, mobile videoconferencing is a great option when travel is not an option and traditional videoconferencing is tough. The post Taking Depositions of Remote Witnesses in Truly Remote Places appeared first on Planet Depos.

Director's Forum: A Blog from USPTO's Leadership Updates from America’s innovation agency

  • Collegiate Inventors Competition winners announced
    by USPTO on November 6, 2019 at 3:44 pm

    Blog by Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO Laura Peter Deputy Director of the USPTO Laura Peter meets University of Tennessee graduate student and CIC finalist Lia Winter, inventor of the EasyWhip™ double-loop stitching apparatus, which gives surgeons more control over the process of stitching grafts. (Photo by Jay Premack/USPTO) “Do not go where the path may lead; go instead where there is no path and leave a trail.” -Ralph Waldo Emerson The future of American innovation was on display October 30 at the 2019 Collegiate Inventors Competition (CIC) held at the U.S. Patent and Trademark Office (USPTO) in Alexandria, VA. Cutting-edge inventions created by the nation’s brightest young innovators from colleges and universities across the country—from improvements in surgical tools to alternative energy solutions—were showcased at the competition’s public expo, providing the students a forum to answer questions and discuss their inventions with USPTO patent examiners, patent attorneys, trademark examiners and senior officials; corporate sponsors; members of the intellectual property community; and the public. During the competition, the 23 undergraduate and graduate students from 10 teams had the opportunity to interact one-on-one with inductees of the National Inventors Hall of Fame (NIHF). These legendary innovators – who have invented many tools, processes, or devices that are now commonplace in our lives (optical fiber, implantable defibrillator, Post-it® Notes, digital camera) — served as judges for the competition, and provided advice and inspiration for the students. USPTO patent examiners also served as judges. “The ideas represented in this room – and the bright minds behind them – are the future of American innovation… You have started blazing your trail. As you continue your path changing our world as entrepreneurs, business owners, and patent holders, we will eagerly watch your progress.” -Deputy Director Laura Peter, addressing CIC finalists and winners at the evening awards ceremony The winner in the undergraduate category was Ethan Brush from the University of Nebraska- Lincoln. His invention, PE-IVT (Positively Engaged, Infinitely Variable Transmission Using Split Helical Gears), is a new type of transmission for electric vehicles which increases efficiency and reduces energy losses. The graduate winner was a team from Massachusetts Institute of Technology, comprised of Maher Damak and Karim Khalil. Their invention, Infinite Cooling, can ionize and collect water from power plant cooling towers, so it may be reused as industrial and drinking water. The undergraduate runner-up, and the Arrow Electronics People’s Choice Award winner, was a team from Johns Hopkins University for their invention PeritoneX, a mechanism to disinfect at-home peritoneal dialysis systems to prevent infection.  The graduate runner-up was a team from University of Washington for their invention, Nanodropper, a universal adapter for eyedrop medication bottles. The top undergraduate and graduate winning teams each received $15,000, and the runner-up winning teams each received $5,000. Read more about all the 2019 CIC finalists and winners. Thanks to this competition, the skills that these students gained through the process of invention and by learning about intellectual property will be assets to them as they continue with their research or commercialize their inventions. The Collegiate Inventors Competition is one of several important programs that the USPTO, with its partner NIHF, sponsors for young inventors. NIHF’s education programs impact over 165,000 children and 20,000 educators annually — promoting a better understanding of the vital role intellectual property and innovation play in our lives and our economy, and helping to build entrepreneurial skills for the next generation of inventors.

  • Spotlight on Commerce: Megan Miller, Plain Language Writer/Editor
    by USPTO on November 5, 2019 at 2:56 pm

    A post about the USPTO from the Department of Commerce. Megan Miller, Plain Language Writer/Editor, USPTO. (Photo by Jay Premack/USPTO) After earning my engineering degree and serving in the Navy for seven years, the next logical step in my career was to take a position as a writer-editor. Sounds disjointed? It's a more natural progression than you might think. Growing up, I loved math and science. Math homework was my favorite! It was so satisfying to start with a few numbers and a question, then figure out what to do with those numbers to find the answer. In science classes, I asked enough questions to try the patience of both my teachers and fellow students. Predictably, I went to college to be an engineer. I studied biomedical engineering at the University of Rochester. It was fascinating to learn about how the human body works and how the biomedical field uses technology to make it work better. I couldn't wait to graduate and use my skills to build things that would solve real-world problems. As graduation grew closer, though, I decided I wanted to explore the world of engineering from a different perspective. So, I joined the Navy to study and work in nuclear propulsion. In my training, I learned how the Navy harnesses fission to move ships. It was staggering to learn about a system that starts with a few neutrons zooming around and ends with an aircraft carrier zooming through the ocean. Again, I was awestruck at how engineering gives us systems that are cohesive, despite their complexity, to elegantly solve the world's problems. During my time in the Navy, in addition to studying nuclear power, I was also a division officer. That meant that I bridged the gap between the command's leadership and the sailors in my division. Despite being on the same ship, those two groups had dramatically different needs and perspectives. Leadership focused on accomplishing the ship's mission and keeping the ship and crew safe. My sailors, on the other hand, were concerned about maintaining and operating a complicated weapon system. When those priorities were at odds, fulfilling my role as a liaison could be quite challenging. I quickly learned that in any form of communication, it's vitally important to start by understanding the needs and perspectives of the other person. The only way to reach them is to shape your message with those needs in mind. Ignore those needs, and you'll fail. For me, a few big failures helped me learn the lesson. Seven years of smaller failures helped me hone the skill, which is fundamental to effective communication. These experiences laid the groundwork for my career as a writer-editor at the USPTO. My focus in writing and editing is plain language. That doesn't mean that I dumb things down or that I make every piece of content understandable to the general public. It means that I write and edit so my audience can easily find, understand, and use the information they need. It's all about audience; understanding their needs is the cornerstone of writing in plain language. For me, writing in plain language requires employing the communication skills I developed and refined in the Navy. So, my plain language savvy is a direct result of my service. Even if you have a clear understanding of your audience, though, writing clearly can still be quite challenging. There are many obstacles to overcome. Sometimes, you're writing to multiple audiences who have vastly different needs. Sometimes, your organization's needs conflict with your audience's needs. Legal topics add another layer of obstacles. Sometimes, when you explain legal concept in the most straightforward way, you get a statement that's only true 99% of the time, making it legally inaccurate. Communicating clearly despite these roadblocks can be difficult, but it's possible. My job is to do just that, and it's my favorite part of writing and editing. Thinking outside the box to find ways to communicate clearly within these constraints is, dare I say, fun. I never expected words to be my medium for solving problems as an adult, but it's just as satisfying as the problem sets I loved as a kid.  My job is to serve Americans by making the information they need more accessible, using words to solve problems along the way. Though I thought I'd grow up to be a distinguished scientist or brilliant inventor, now I know that it's just as fulfilling to be a word engineer. Ed. note: This post is part of the Spotlight on Commerce series highlighting the contributions of Department of Commerce military veterans in honor of Veterans Day.

  • USPTO issues second Federal Register Notice on artificial intelligence and innovation
    by USPTO on October 30, 2019 at 1:15 pm

    Blog by Under Secretary of Commerce for Intellectual Property and Director of the USPTO Andrei Iancu and Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO Laura Peter Director Iancu visits exhibits showcasing AI technologies at the “Artificial Intelligence: Intellectual Property Considerations” conference on January 31, 2019 at the USPTO. Shown above: a team from University of California, Berkeley demonstrates their patent visualization system, which enables a user to see and manipulate a three-dimensional landscape of similar patents. (Photo by Jay Premack/USPTO) Article 1, Section 8, Clause 8 of the U.S. Constitution states that Congress has the power “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” As artificial intelligence technologies (AI) quickly advance, the concepts of “authors and inventors” may not necessarily be confined to the human realm. From creating paintings and symphonies to generating advertising copy and recommending products to consumers, AI has already produced impressive artistic and commercial output. What impact will this have on our constitutionally founded IP system? The USPTO has been examining precisely these issues. One step in this process was the publication of our Request for Comments on Patenting Artificial Intelligence Inventions in the Federal Register on August 27. We have extended the comment period to November 8, so please submit your patent-related responses if you have not already done so. The fields of copyright, trademark, database protections, and trade secret law, among others, may be similarly susceptible to the impacts of developments in AI. Accordingly, the USPTO is just as interested in gathering public feedback on these issues. To facilitate that process, we issued a second AI-related Federal Register Notice on October 30 and comments will be accepted until December 16, 2019. There are thirteen questions in this notice, including:Should a work produced by an AI algorithm or process, without the involvement of a natural person contributing expression to the resulting work, qualify as a work of authorship protectable under U.S. copyright law? Why or why not? To the extent an AI algorithm or process learns its function(s) by ingesting large volumes of copyrighted material, does the existing statutory language (e.g., the fair use doctrine) and related case law adequately address the legality of making such use?  Should authors be recognized for this type of use of their works? If so, how? Would the use of AI in trademark searching impact the registrability of trademarks? If so, how? How, if at all, does AI impact trade secret law? Is the Defend Trade Secrets Act (DTSA), 18 U.S.C. § 1836 et seq., adequate to address the use of AI in the marketplace? How, if at all, does AI impact the need to protect databases and data sets? Are existing laws adequate to protect such data? We have already gleaned compelling insights from the feedback we received to date on the patent-related Federal Register Notice. But the various types of intellectual property protections work together symbiotically to create a comprehensive IP legal system that promotes creativity, development, job creation, and economic growth. As such, we are eager to hear your views on the impacts that other non-patent IP fields are or may be experiencing in the wake of AI. However fast the pace of AI development has been until now, we firmly believe that this will pale in comparison to advances yet to come. The USPTO is committed to keeping pace with this critical technology in order to accelerate American innovation.

  • National Disability Employment Awareness Month
    by USPTO on October 28, 2019 at 6:25 pm

    By Under Secretary of Commerce for Intellectual Property and Director of the USPTO Andrei Iancu October is National Disability Employment Awareness Month (NDEAM), a time to celebrate the immeasurable contributions Americans with disabilities make to the workplace and society. Individuals with disabilities create and innovate in numerous and diverse technologies. They own registered trademarks and hold patents. They are our colleagues and our loved ones, and they are a vital thread in our American tapestry.  Our work at the USPTO is enhanced by the spirit of inclusion and accessibility. Many of our employees—7% of whom self-identify as disabled—are able to perform their duties at the highest levels thanks to many of the same adaptive technologies that receive our IP protections. Diversity has been an essential component to America’s long and successful history of innovation. This is true not only of our inventors themselves, but also the diversity in the inventing process and the technologies we bring forward. One only needs to look as far as our National Inventors Hall of Fame to see several examples of remarkable inventors who work to enhance the lives of persons with disabilities while also experiencing their own physical challenges. Inducted in 2019, Chieko Asakawa used her personal experience to invent the Home Page Reader (HPR). The HPR provides internet access for users who are blind or visually impaired. Asakawa, who is herself visually impaired, has worked continually to ease communication for visually disabled users through many other inventions focused on accessibility. Bill Warner, another 2019 inductee, changed film editing forever through his invention of a digital, nonlinear editor. A true testament to innovation, Warner has also invented a telephone-based, voice-activated virtual assistant and worked to improve hand pedaled cycles. Warner’s own condition requires him to use devices such as these cycles. Left to right: John Kaplan, Director of Technology Transfer for the Department of Veterans Affairs, Andrei Iancu, Director of the USPTO, and Alois (Al) Langer, inductee to the National Inventors Hall of Fame, view and discuss technologies at the Human Engineering Research Laboratories (HERL) at the University of Pittsburgh with Dr. Garrett Grindle (right), Assistant Director of Engineering at HERL. I recently had the pleasure of visiting the Human Engineering Research Laboratories (HERL) at the University of Pittsburgh. A joint center supported by the university and the U.S. Department of Veterans Affairs, HERL was established in 1994 by inventor, bioengineer, and professor Rory Cooper. Cooper is a distinguished professor of rehabilitation at the University of Pittsburgh and a senior career scientist for Veterans Affairs. In addition, Professor Cooper himself is a competitive para-athlete and winner of a bronze medal at the 1988 Paralympic Games in Seoul. Starting with just Professor Cooper and two graduate students, HERL has grown to a team of about 70 researchers and innovators around the world. His team has developed more than 100 life-changing inventions and holds multiple patents related to wheelchairs, robotics, and wearable instruments designed to improve the lives of people with disabilities. HERL’s work has led to such patented technologies as the Surge and NaturalFit Handrims, which helped to reduce injury rates of wheelchair users from approximately 80% of patients to about 20% overall.  HERL’s other inventions include the Robotic-assisted Transfer Device, and the NextHealth Bed and Wheelchair to reduce strain on caregivers. HERL’s patented joystick and algorithms have made it possible for hundreds of thousands of older adults and people with disabilities to have independent mobility. USPTO inventor collectible card for Rory Cooper The inventive spirit of people like Chieko Asakawa, Bill Warner, and Professor Rory Cooper set inventors apart and lead to the tremendous growth of technology through innovation in America. Role models like them serve as beacons of invention to inspire us all. To learn more, read the USPTO’s latest Journeys of Innovation story on Rory Cooper, see his USPTO inventor collectible card and other USPTO inventor collectable cards on the USPTO kids pages, and read about National Disability Awareness Employment Month.

  • Your feedback is driving improvements to trademark filings and login user experience
    by USPTO on October 23, 2019 at 4:50 pm

    Guest blog by Commissioner for Trademarks Mary Denison MyUSPTO landing page As we work to strengthen security and enhance the trademarks filing experience, we continue to listen to your ideas and feedback. Among these efforts is an upcoming enhancement you should prepare for now. Beginning October 26, 2019, you'll need to log in with two-factor authentication to your USPTO.gov account to access TEAS or TEASi forms. If you haven’t yet created your account, set up your USPTO.gov account today. Filing features through MyUSPTOBy logging in to MyUSPTO for your trademark filings, you have a personalized homepage for managing your trademarks portfolios using widgets to meet your needs. MyUSPTO provides the Trademark Application Docket and Trademark Post-Registration Docket, which allow trademark owners or practitioners to create an unlimited number of trademark portfolios (or “collections”) of up to 1,000 trademarks per collection. You can also set up notifications of changes to your applications or registrations, such as to the owner address, attorney address, or voluntary amendments. The trademarks widgets on MyUSPTO also include the Trademarks Form Finder, which allows users to quickly search for a trademark form by name or locate it by action or response needed. You can stay current with the Trademark Official Gazette Watch by saving search queries as well. There are also two MyUSPTO widgets for making sure you have access to the resources and latest trademarks news. The Trademark Alerts widget provides a list of recent emails from the USPTO relevant to trademark customers. Using the Favorites widget, you can bookmark USPTO webpages and systems. This means the pages you need most often are there regardless of the device or browser you use to log in. Preventing fraud with two-factor authenticationWe need to improve the security of your information by preventing fraudulent attempts to alter your information or file documents. Adding two-factor authentication to the login process will admittedly add another step to your workflow by requiring a unique six-digit code, but it is necessary. Two-factor authentication significantly reduces the chance these malicious attempts to impersonate you will succeed because knowing your password alone is not enough to pass the authentication check. Other USPTO applications have already implemented this technology in the customer workflow. Through those efforts, we heard your feedback that the authentication code takes too long to arrive, so we’re reducing your wait time by improving the underlying email infrastructure and changing the email service we currently use. Further, the authentication code can be provided via two alternate methods — either a voice call or an authentication app. Beginning October 26, you will also have the option to receive the authentication code via text message. Improving security with shorter timeout on TEAS and TEASi formsYou will encounter another change when you use the TEAS and TEASi forms. To comply with NIST Special Publication 800-63B (June 2017) and the statutory requirements under the Federal Information Security Modernization Act (FISMA) of 2014, 44 U.S.C. § 3551 et seq. Public Law (P.L.) 113-283, “… [r]eauthentication of the subscriber SHALL be repeated following any period of inactivity lasting 30 minutes or longer.” After 30 minutes of inactivity, “[t]he session SHALL be terminated (i.e., logged out)…” As a result, your TEAS and TEASi sessions will timeout after 30 minutes of inactivity on a form, a reduction from the current 60-minute period. We recognize this likely affects some of your filing processes, such as when selecting a lengthy identification of goods and services or writing an argument in response to a substantive refusal. This is necessary to improve the security of your information and to prevent fraudulent attempts to impersonate you in a trademark filing. To help you manage your work with the reduced timeout, you'll receive a pop-up warning after 25 minutes of inactivity on a form. When you see this, select the “Yes, keep me signed in” button to reset your activity for another 30 minutes. Activity on a TEAS form that will extend your session includes uploading or attaching files and using the buttons on the forms, such as “Go Back,” “Continue,” and “Validate.” For sections of forms that take you longer than 30 minutes to complete, we also recommend gathering information and writing responses prior to logging in to a TEAS or TEASi form. Increasing system availability and responsivenessSince customers first started using USPTO.gov accounts to log in to USPTO systems, we as an agency have heard loud and clear the need to improve both system availability and performance. System availability is improving as a result of recent work to upgrade and stabilize our external applications’ infrastructure, and performance will continue to improve based on the addition of high-availability capacity and increased automated system monitoring. Please continue to share your feedback with us so we can integrate it into our development process and improve your experience. Prepare for the login requirementAlong with creating your USPTO.gov account before October 26, 2019, we also recommend that you bookmark the Log in to TEAS and TEASi page. From here, you can access the resources and contact information for technical assistance. This is also where you can watch the How to prepare for the new TEAS login requirement recorded webinar. When you’re ready to work on a filing, access the TEAS and TEASi forms through the Apply online page and Index of all TEAS forms page. Those pages will provide login information as well.  

Above the Law A Legal Web Site – News, Insights, and Opinions on Law Firms, Lawyers, Law School, Law Suits, Judges and Courts

LJN - Internet Law & Strategy The newsletter publishing arm of ALM, publishers of The National Law Journal, The American Lawyer and legal newspapers of record throughout the U.S.

  • Exploring the Nebulous Boundaries of Trade Dress
    on October 1, 2019 at 7:17 am

    Now that we are in the digital age, questions have been raised about the trade dress of websites and apps.       

  • Legal Tech: Demystifying Social Media Discovery
    on October 1, 2019 at 5:03 am

    Social Media Escapes an Easy Definition, But You Know It When You See It While it would be helpful to understand the technical details of collecting data from various social media platforms, what's more important is what parts of social media might be relevant to a dispute and what that means for both the requesting and producing parties.       

  • EU E-Commerce Proposal Aims to Eliminate Barriers; Calls for E-Signatures and Net Neutrality
    on June 1, 2019 at 5:11 am

    The European Union has put forth an ambitious proposal for how countries can eliminate barriers to e-commerce and protect businesses and consumers engaged in online transactions. But parts of the proposal, published as part of a World Trade Organization initiative that includes the U.S. and China, are likely to face opposition.       

  • Social Media Influencers: Basic Tax Issues
    on June 1, 2019 at 5:11 am

    This article discusses the basic tax issues facing social media influencers, who have become an important element in the entertainment industry.       

  • Are Online Reviews Threatening Your Online Reputation?
    on June 1, 2019 at 5:09 am

    An attorney's reputation may be one of the most important factors that clients consider before hiring counsel. In today's world of online reviews, managing your reputation can be challenging. How should you manage online reviews to ensure your reputation and trustworthiness are intact?