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Intellectual Property Report

Client Updates

Traditional Intellectual Property Law Still Applies in the NFT World

Lucy Soyinka

Brand owners can breathe a sigh of relief, perhaps. In Hermes Int'l v. Rothschild, Mason Rothschild’s MetaBirkins NFTs were found to have violated Hermès trademark of its famous Birkin handbags. An NFT, or Non-Fungible Token, is a unique digital identifier that cannot be copied, substituted, or subdivided, that is recorded in a blockchain, and that is used to certify authenticity and ownership. NFTs can transform digital works of art and other collectibles into one-of-a-kind, verifiable assets that are easy to trade on the blockchain. Still developing case law suggests that trademark law will remain applicable in the world of NFTs, while balanced against first amendment principals on a case by case basis. Moreover, the Supreme Court’s decision in the Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith case may provide a stronger understanding of copyright law and fair use principals that would also be relevant to NFTs.

To read the full article, click here.


Hydrogen Innovation: Challenges in the Transition to Greener Fuels

Liz FlanneryThomas Carter

Hydrogen has become one of the centerpieces of the world’s plans to transition to cleaner energy. But producing, storing and distributing hydrogen at a lower cost entails several challenges. New technologies are being developed to solve those challenges and, as the rate of innovation ramps up, so does the number of patents being filed for them.

To read the full article, click here.

*This article was previously published in Oil and Gas Investor on March 6, 2023. 


Defending Prior Software Use With 35 U.S.C. Section 273

Rob MaierMatthew Thompson

Patent infringement cases involving software products can raise a number of unique challenges. One such challenge arises in connection with 35 U.S.C. Section 273, which provides a defense to patent infringement based on prior commercial use of a product or system. Evidence of prior commercial use of a device can be fairly straightforward; but evidence of prior commercial use of software can raise different and complex challenges in connection with source code, version control, and related issues. In an increasingly software-based world, companies should be mindful of these challenges, and best position themselves to raise—as needed—this Section 273 defense.

To read the full article, click here.

*This article was previously published in the New York Law Journal on March 22, 2023. 


Texas Startups Hope to Continue Raising Capital Despite Tech Downturn

Michael TorosianChristopher Palermo 

Last year was challenging for the tech industry. Tech companies underperformed after going public amidst a scenario of overall public market declines, geopolitical issues and war, high inflation, interest rate increases, supply-chain disruptions and economic uncertainty. And if that wasn’t enough, layoffs across the tech sector became the norm as companies had grown faster than their businesses could sustain and funding became more difficult to come by.

To read the full article, click here.

*This article was previously published in The Texas Lawbook on March 9, 2023. 


March 2023 Intellectual Report Recap

In case you missed it, here is a video recap of our March 2023 Intellectual Property Report that looked at: 

  • The Upcoming EU Unified Patent Court and Unitary Patents
  • Freedom to Operate Analysis: Three Strategies to Efficiently Achieve Robust Results
  • GAO Provides Recommendations Into Oversight of USPTO Judicial Decision-Making
  • Baker Botts' IP Department Shines in LexMachina's Patent Litigation Report 2023

Baker Botts is an international law firm whose lawyers practice throughout a network of offices around the globe. Based on our experience and knowledge of our clients' industries, we are recognized as a leading firm in the energy, technology and life sciences sectors. Since 1840, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit

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