Intellectual Property Report: November 2017

Firm Thought Leadership

Has Copyright Protection Expanded for Useful Articles?
Patrick K. McClay
Recent cases present a possibility that copyright protection under the Copyright Act has expanded in certain circumstances involving useful articles. The Copyright Act provides protection for “pictorial, graphic, or sculptural features” of the “design of a useful article” only if those features “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” However, in deciding cases involving artistic features within useful articles, courts have struggled to provide a consistent separability analysis. In an attempt to enable a more reliable approach, the Supreme Court in Star Athletica, L.L.C. v. Varsity Brands, Inc. provided a new test. However, this new test has presented an opportunity for interpretation and application that could expand copyright protection in cases where artistic features have some partial utility. As such, this new test necessitates interpretation by lower courts. Indeed, the Southern District of New York has already interpreted the Star Athletica test in deciding Jetmax Ltd. v. Big Lots, Inc., a case involving an artistic feature with a partial utility. In not rendering the feature uncopyrightable, the Southern District’s interpretation of Star Athletica furthers the possibility that copyright protection has expanded.

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Litigating Biotechnology Patents: The Next Frontier for Patent Litigation in the United States*
Paul R. Morico
Computer-related inventions have dominated the landscape of patent litigation over the past 30 years in the United States, and likely will continue to wield influence over patent litigation in the coming decades, albeit in a somewhat different way. The hot area of patent litigation in the late 1980s through the early 2000s was semi-conductors, in particular high-speed processors and memory storage devices, such as DRAMs (dynamic random access memory devices) and flash memory devices. These micro-devices were responsible for the personal computer boom. They enabled these devices to get smaller, faster and cheaper, thus bringing the power of computers to the masses. As the industry matured, litigation in the area, however, began to quiet.

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*This article first appeared in Wolters Kluwer’s IP Law Daily, October 30, 2017.

Hot Topics at the USPTO: A Conversation with Baker Botts’ Eliot Williams
Eliot D. Williams IP reporter Scott Graham breaks down some hot topics at the U.S. Patent and Trademark Office with Eliot Williams, an IP partner at Baker Botts.

To listen to the interview, click here.