Insights

Washington – January 10, 2024: Crowell & Moring has published Litigation Forecast 2024: What Corporate Counsel Need to Know for the Coming Year. The 12th-annual Litigation Forecast focuses on trends in intellectual property, regulatory and other U.S. litigation, with special coverage of supply chain recovery and international litigation.

The United States Patent and Trademark Office (USPTO) issued a Federal Register Notice on February 13, 2024 explaining how it will analyze patent inventorship issues for inventions that utilize artificial intelligence (AI) systems. Overall, the USPTO concluded that AI-assisted inventions are not categorically unpatentable, but that a human must have made significant contributions in every aspect of the invention, and reminds applicants of their duty of candor to disclose information that could evidence that an individual may not be an inventor where her/his purported contribution was the result of an AI system. 

On August 30, 2023, the Copyright Office announced it would be seeking public comment on the use of copyrighted works to train Artificial Intelligence (“AI”), the copyrightability of AI outputs, whether AI-generated works infringe existing copyrights, and how to treat generative AI.

It seems most everyone has been closely monitoring Taco Bell’s cancellation proceedings directed to federal trademark registrations covering the TACO TUESDAY trademark.  On July 15, 2023, one of the registrants, Spicy Seasonings, LLC, withdrew its registration after decades of ownership, supporting Taco Bell’s allegations that the phrase is generic and therefore not protectable as a trademark.

Washington, D.C.-based partners, Terry Rea, of Crowell & Moring's Intellectual Property Group, and Keith J. Harrison, of the firm's Labor & Employment and Litigation groups, weigh in on two important cases in the life sciences arena. Harrison discusses Teva Pharmaceuticals USA, Inc.'s challenge of a California appellate decision that a generic-drug manufacturer can be held liable for failing to warn consumers of the side effects listed on the equivalent brand-name drug, which may potentially be taken up by the U.S. Supreme Court. "This is going to be a case that is going to further define the scope of federal preemption," Harrison said. Additionally, Rea talks about the Cuozzo Speed Technologies LLC suit, which argues that the Patent Trial and Appeal Board uses the incorrect standard during America Invents Act (AIA) proceedings, making it difficult for inventors to retain their patents. "Everybody is going to be very, very careful how they handle this [case]," Rea said of the suit, which may upend new IPR standards.

The U.S. Supreme Court on June 25 ruled that online television streaming service Aereo Inc. violates copyright law by retransmitting over-the-air programming without authorization. John Stewart, IP partner in the firm's Washington, D.C., office and co-head of the firm's member of the firm's global TLD and Domain Name Practice, tells Law360 why the decision in American Broadcasting Companies Inc. v. Aereo Inc. is significant. "America's unique system of free broadcasting provides unparalleled programming service. The Copyright Act carefully balanced the interests of creators, distributors and viewers to sustain this service. The court's decision was plainly driven by the transparency of Aereo's attempts to evade Congress's balance. Even the dissent agrees it 'ought not to be allowed.' The court's opinion reinforces the balance, without impinging on new methods of program delivery developed in cooperation with content owners. The court's analysis of the Transmit Clause and users' prior rights in stored content may affect the remand on Aereo's delayed-transmission services, notwithstanding prior court of appeals decisions."

A 2023 U.S. Supreme Court decision limiting the reach of U.S. trademark law outside of the country could lead to further litigation by trademark holders looking to push back on those boundaries, says Crowell & Moring partner Preetha Chakrabarti, a member of the firm’s Technology & Intellectual Property Department and the Advertising & Brand Protection Group.

Learn basic principles of copyright, trademark, trade secret, and patent law, with emphasis on how micro-entrepreneurs should be advised as they develop their business ideas and confront the need to protect their own intellectual property assets and avoid infringing the intellectual property rights of others. The session will include discussion of the advantages of timely registration, practicalities of various search options, strategies for obtaining federal registration, and issues raised when the micro-entrepreneur’s business includes an online presence.

This webcast presentation will provide key insights into the top parties, courts, and firms driving trademark and copyright litigation.  Panelists will discuss how legal analytics provides the winning edge for trademark and copyright.