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Intellectual Property Report

Client Updates

First Quarter 2021 Federal Circuit Law
Michael Hawes
Since serving as a Federal Circuit clerk, Mr. Hawes has monitored that court's precedential opinions and prepares a deeply outlined index by subject matter (invalidity, infringement, claim construction, etc.) of relevant legal points - in order to assist clients seeking to identify recent law relevant to a particular problem.
To read the full article, click here.

How Companies Should Respond to Patent Diversity Bill
Margaret Welsh
Last month, a bipartisan coalition of U.S. senators and representatives reintroduced the Inventor Diversity for Economic Advancement, or IDEA, Act. The IDEA Act's purpose is to collect demographic data from patent applicants to narrow the gender and diversity gap of inventors named on patents. With the reintroduction of this bill and its potential momentum, companies should begin to consider whether and how they will comply with the proposed data collection. Further, there are several steps companies can take — independently of the IDEA Act's potential passage — to increase the diversity of their patent inventors.
To read the full article, click here.
*This article was previously published in Law360 on April 15, 2021.

Copyright Fair Use – Context is Everything
Seth Todd
Recent decisions from the Supreme Court and the Court of Appeals for the Second Circuit reveal the complex nature of the doctrine of fair use and how its contextual application can lead to opposite results. In Google v. Oracle, the Supreme Court found Google’s copying of Oracle’s Java API was fair use, while in contrast, just several days prior, the Second Circuit determined that a series of Andy Warhol illustrations of the musician Prince were not a fair use of a photograph on which the series was based. This article analyzes the two high profile decisions as they address each of the non-exclusive factors of the fair use doctrine.
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Should I Stay or Can I Go: Recent Developments Regarding Venue Transfer in the Western District of Texas
Thomas B. Carter, Jr.
Judge Alan D. Albright took the bench in September 2018, creating a surge in the number of patent infringement cases filed in the Waco Division of the United States District Court for the Western District of Texas. His default standing order for patent cases have significantly streamlined patent litigation in one of the busiest patent courts in the country. Parties on both sides might find aspects of these practices favorable to them—while plaintiffs might appreciate the expedited trial schedule, defendants would likely find the reduced discovery demands favorable as they minimize early expenses prior to obtaining a claim construction order. Many defendants sued in the Western District of Texas, however, have filed transfer motions. Recently, litigants have pushed the appellate courts to step in to address transfers for convenience in this court. This article provides an update on a couple of recent developments in this area.
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Employee Inventors and Patent Ownership: Whose Rights Are They Anyway?
Fred Carbone
To properly protect its intellectual property, a company should ensure that all employee-inventors have properly assigned ownership in their patents to the company. Indeed, all owners of a patent are required to voluntarily join as plaintiffs in order for there to be standing to bring a patent infringement action, and inventors are presumed to be owners unless they have assigned their rights.
To read the full article, click here.
*This article was previously published in the American Bar Association on March 31, 2021.
*To read PatentlyO's coverage of this article, click here.

Supreme Court Unanimously Holds That FTC Act Section 13(b) Does Not Authorize Equitable Monetary Relief
Maureen Ohlhausen, Julie Albert
On April 22, 2021 the Supreme Court issued a unanimous ruling in AMG Capital Management, LLC v. FTC, finding that Section 13(b) of the FTC Act does not authorize the Commission to seek, or a court to award, equitable monetary relief such as restitution or disgorgement. 539 U.S. ___ (2021), Slip Op. at 1. This ruling not only forecloses the FTC’s ability to obtain monetary remedies in deception cases without an administrative order but also stops its burgeoning efforts to obtain large disgorgement remedies in antitrust matters, which have often been in the hundreds of millions of dollars and reached over one billion dollars in one settlement.
To read the full article, click here.

April 2021 Intellectual Property Report Recap
In case you missed it, here is a recap video of our April 2021 Intellectual Property Report that looked at:
• Crypto & Cyber
• Trade & Sanctions
• Communicating with Clients

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