Posts Tagged: "U.S. Court of Appeals for the Ninth Circuit"

Ninth Circuit Denies Review of Decision that IPR Proceedings Do Not Trigger FCA’s Public Disclosure Bar

On January 5, the U.S. Court of Appeals for the Ninth Circuit published an amended opinion and order denying rehearing and rehearing en banc, thus upholding its August reversal of the Northern District of California’s dismissal of a qui tam whistleblower action under the False Claims Act (FCA). The FCA claim was brought by patent attorney Zachary Silbersher against Valeant Pharmaceuticals, predecessor to Canadian drugmaker Bausch Health. The appellate court’s decision turned on the application of the FCA’s public disclosure bar, finding that inter partes review (IPR) proceedings did not trigger the statutory bar to qui tam actions based on evidence previously disclosed during adversarial agency proceedings “in which the Government or its agent is a party.”

Ninth Circuit Delivers Win for Instagram in Photographers’ Copyright Case

The U.S. Court of Appeals for the Ninth Circuit yesterday upheld a district court ruling that embedding images from Instagram posts in third-party websites does not constitute copyright infringement. The case has to do with two photographers’ images that were embedded and posted with articles run by Buzzfeed News and Time from the photographers’ public Instagram accounts. The district court and the Ninth Circuit both cited Perfect 10 v. Amazon as precluding relief.

Jack Daniel’s Gets Last Laugh for Now in SCOTUS’ Ruling in ‘Bad Spaniels’ Case

The U.S. Supreme Court held today in Jack Daniel’s Properties v. VIP Products that the Rogers test, used to “protect First Amendment interests in the trademark context,” is not relevant “when an alleged infringer uses a trademark as a designation of source for the infringer’s own goods.” The Court therefore vacated the U.S. Court of Appeals for the Ninth Circuit’s ruling that said VIP’s dog toy mimicking a Jack Daniel’s whiskey bottle was an expressive work entitled to First Amendment protection. Justice Kagan authored the unanimous opinion for the Court, while Justice Sotomayor, joined by Justice Alito, and Justice Gorsuch, joined by Justices Thomas and Barrett, each filed concurring opinions.

Ninth Circuit Sends Photo Copyright Case Back for Jury Trial

Last week, the United States Court of Appeals for the Ninth Circuit issued a ruling in a copyright dispute between Erickson Productions and Kraig Kast, ultimately reversing and remanding the case back to the district court for a jury trial. The appeals court ruled that the district court erred by not conducting a jury trial after a first appeal by Kast. The case began when Jim Erickson of Erickson Productions accused Kast of the unauthorized use of three copyrighted photos on his developmental website. The case was heard before a jury in the United States District Court for the Northern District of California, which awarded Erickson $450,000 in damages after finding that Kast willfully infringed on the copyright.

SCOTUS Skeptical that Bad Spaniels is Parody, But Questions Need to Overturn Rogers

At today’s hearing in Jack Daniel’s v. VIP Products, the U.S. Supreme Court Justices suggested to both sides that there might be an easier way out on the facts of this particular case than either party is proposing, but weighed the need to overturn the Second Circuit’s test in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), which some of the Justices characterized as injecting unnecessary confusion. Though the Court seemed equally concerned about retaining a way for defendants making clearly parodic use of a mark to get out of litigation quickly, which Rogers is intended to do, they questioned both sides about why in this case they couldn’t either find for Jack Daniel’s by just saying that VIP is clearly using a source identifier on a commercial product, or remand to the district court to say they failed to properly weigh the parody or proximity factors of the product, for instance. Overall, the Justices seemed skeptical that the product in question represents a non-commercial use.