The Medical Device Manufacturers Association (MDMA) and the Alliance of U.S. Startups and Inventors for Jobs (USIJ) sent a letter today to the leadership of the Senate Judiciary Committee and the Judiciary Committee’s Subcommittee on Intellectual Property to express their support for both the Promoting and Respecting Economically Vital American Innovation Leadership Act (PREVAIL Act) and the Patent Eligibility Restoration Act (PERA). Both PREVAIL and PERA were introduced on June 22, 2023. The PREVAIL Act aims to reform Patent Trial and Appeal Board (PTAB) practices while PERA would eliminate all judicially-created exceptions to U.S. patent eligibility law.

A spate of recent lawsuits is shining light on how some generative AI (GenAI) companies are using copyrighted materials, without permission, as a core part of their products. Among the most recent examples is the New York Times Company’s’ lawsuit against OpenAI, which alleges a variety of copyright-related claims. For their part, some GenAI companies like OpenAI argue that there is no infringement, either because there is no “copying” of protected materials or that the copyright principle of fair use uniformly applies to generative AI activities. These arguments are deeply flawed and gloss over crucial technical and legal issues. They also divert attention from the fact that it is not only possible but practical to be pro-copyright and pro-AI.

The U.S. Patent and Trademark Office (USPTO) today announced guidance for practitioners and the public regarding the use of artificial intelligence (AI) in the preparation of filings for submission to the Office. The guidance comes two months after the Office issued a guidance memorandum for the Trademark and Patent Trial and Appeal Boards (TTAB and PTAB) on the misuse of AI tools before the Boards that clarified the application of existing rules to AI submissions.

Independent Presidential candidate Robert F. Kennedy, Jr’s Vice-Presidential running mate, Nicole Shanahan, a mercurial patent analyst, intellectual property lawyer and incidentally rich entrepreneur, is in the position to influence declining patent reliability and increasing copyright abuse. But will she? This column is not intended to opine on Shanahan’s merits as an independent Vice-Presidential candidate, but to attempt to understand her motivation for running and its potential impact on IP rights, creators and assignees.

The U.S. District Court for the Central District of California ruled on Friday that Shosh Yonay and Yuval Yonay, the widow and son of Ehud Yonay, who authored a 1983 magazine article that inspired the renowned film, Top Gun, were not entitled to damages for copyright infringement related to the 2022 sequel to the film. Yonay authored a magazine article titled “Top Guns,” published in California Magazine on April 21, 1983, that was an account of the experiences of F-14 pilots in training at Navy’s Fighter Weapons School, known as “Top Gun.”

In a significant milestone for the preservation of biodiversity, Decree 11,865/2023, published in the Official Gazette on 12/28/2023, enacted the Nagoya Protocol in Brazil. The protocol, providing for access to genetic resources and the fair sharing of benefits arising from their use, is part of the renowned Convention on Biological Diversity (CBD). The Nagoya Protocol, in force since October 12, 2014, relates to the international commitment of 140 countries, including Brazil, to implement the objective of the CBD on the fair and equitable sharing of benefits from the use of genetic resources and the traditional knowledge associated with them (TK).

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Monday affirmed an International Trade Commission (ITC) final determination that said Google infringed five of Sonos, Inc.’s patents but which also found three proposed redesigns did not infringe. Sonos owns U.S. Patent Nos. 10,439,896 (“’896 patent”), 9,195,258 (“’258 patent”), 9,219,959 (“’959 patent”), 10,209,953 (“’953 patent”), and 8,588,949 (“’949 patent”). Sonos filed a complaint with the ITC alleging certain Google audio players and controllers infringed the patents and the ITC agreed, issuing a limited exclusion order and a cease-and-desist order (CDO) preventing Google from marketing the infringing products in the United States.

In the latest episode of IP Practice Vlogs, it’s time for another design patent practical exercise. We previously did a design exercise on patenting Apple’s AirPods. This time we are going to patent the lightsaber. Specifically, as an example, we will be using a custom made lightsaber from Disney which was built by my husband at an experience at Galaxy Edge called Savi’s Workshop. The lightsabers that are assembled and sold at Savi’s workshop are all customizable in which the design or physical appearance actually vary depending on the customer’s design choice. I’m going to show you why this custom-made lightsaber is actually a very good candidate for design patent protection despite its variable design.

U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal vacated and remanded a decision of the Patent Trial and Appeal Board (PTAB) on Friday that had denied institution of an inter partes review (IPR) requested by auto parts manufacturer, Mahle Behr Charleston, Inc. U.S. Patent No. RE47,494 E is owned by inventor Frank Amidio Catalano and covers “a device to prevent corrosion [in motor vehicle radiators] caused by electrolysis.” Mahle Behr requested IPR of the patent, arguing that a prior art reference called Godefroy anticipates and renders obvious certain claims.

“Many believe the root cause of the patent system’s dysfunction is that the U.S. Patent and Trademark Office [USPTO] is issuing too many invalid patents that unnecessarily drain consumer welfare, stunt productive research, and unreasonably extract rents from innovators.” That quote from Professors Michael Frakes and Melissa F. Wasserman echoes a common complaint in patent policy conversations. The USPTO is widely perceived as issuing too many bad patents.

Lowenstein & Weatherwax LLP, one of the premier IPR firms in the country, seeks a seasoned patent litigator to join its firm. Candidates should have at least three years of experience litigating patent validity whether in district court or before the PTAB. A technical background is preferred but not required. This is a full-time, permanent position located in Santa Monica, CA, or remote.

This week in Other Barks and Bites: Judge Pauline Newman responds in district court challenge to her suspension; Over 200 musical artists sign letter imploring tech companies to stop using AI to devalue artists’ work; a California district court denies a motion from tech giants, including Google and Apple, that sought to challenge USPTO IPR rule; and George Carlin’s estate successfully settles copyright infringement lawsuit with podcast that impersonated the comedian’s voice using AI.

The protection of privilege in communications between clients and lawyers is a very important one under U.S. law. The basic rule is that when a client seeks legal advice from a lawyer, the communication between the client and the lawyer is confidential and cannot be discovered during litigation. An important purpose of this rule is to encourage clients to communicate fully and freely with lawyers in the process of seeking legal help. The lawyers here include both external lawyers and in-house lawyers.

The debut episode of LexisNexis’ Evolving IP podcast features inaugural hosts Francesca Levoir, Marco Richter, Nigel Swycher, and Tim Pohlmann, who set the stage for the overarching theme of “bringing clarity to innovation.” This podcast endeavors to unravel the complexities of intellectual property (IP), tackling the intricate dynamics at the crossroads of IP, law and business.

The Air Force Civilian Service (AFCS) is looking for a Patent Attorney (NH-1222-04) to join the team at the Air Force Materiel Command Law Office at Wright-Patterson AFB, Dayton, OH. The primary purpose of this position is to provide Intellectual Property legal services including preparing and prosecuting patent applications; advising Air Force employees on rights in inventions, patents, and other intellectual property; and legal reviews of instruments for the transfer of Air Force technology.