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Gorsuch’s “Dead Letter” Prophecy: Hearst v. Martinelli may Settle Copyright’s Discovery Rule following the Warner Chappell Avoidance
by Dennis Crouch
The pending Hearst v. Martinelli case may be the "dead letter" offered by Justice Gorsuch. This time, the Supreme Court might actually decide whether the "discovery rule" applies to the Copyright Act's statute of limitations.
Copyright law provides
The Design Law Treaty and the Struggle for International Harmonization of Industrial Design Protection
When is a Government Official’s Social Media a State Action?
by Dennis Crouch
Lindke v. Freed, 601 U.S. ___ (2024) 22-611_ap6c.
This recent decision from the Supreme Court case grapples with the issue of when a public official's social media activity constitutes state action for purposes of a First Amendment claim under 42 U.S.C. §1983. I've been following the case as part of my work on internet and media law issues.
The case arose after James Freed, the city manager of Port Huron, Michigan, deleted comments and blocked a Port Huron citizen (Kevin Lindke) from commenting on Freed's personal Facebook page after Lindke used the forum to criticize the city's handling of the COVID-19 pandemic. Lindke sued Freed, arguing that Freed had violated his free speech rights by censoring him in a public forum.
In a unanimous opinion authored by Justice Barrett, the Supreme Court created a two step test, holding that that a public official's social media conduct only qualifies as state action under §1983 if the official:
- possessed actual authority to speak on the State's behalf on the particular matter at issue, and
- purported to exercise that authority when speaking in the relevant social media posts.
Banning TikTok: Protecting Americans from Foreign Adversary Controlled Applications Act
by Dennis Crouch
Along with my work in intellectual property, I also spent a lot of time focusing on internet law issues and their interrelation with AI, privacy, speech and security. We have seen growing calls for action surrounding Section 230 modifications and social media censorship, and several pending Supreme Court cases could reshape the legal landscape governing online platforms.
Banning TikTok: The U.S. House of Representatives passed a bill this week, with a vote of 352-65, that could potentially ban TikTok in the United States. The bill, called the Protecting Americans from Foreign Adversary Controlled Applications Act, would require TikTok to divest from its China-based parent company ByteDance or face consequences such as being cut off from app stores and hosting services in the U.S.
LKQ Corporation v. GM Global Tech: Design Patent En Banc
See you Soon: Three Upcoming Events
ITC: Apple is an “Adjudicated Infringer” Improperly Seeking “Permission to Continue Infringing”
by Dennis Crouch
This article analyzes some of the latest developments in the ongoing legal battle between medical device company Masimo and tech giant Apple regarding Apple's adjudged infringement of Masimo's pulse oximetry patents in its Apple Watch. The basic question is whether Masimo's pulse-oximetry patents will be strong enough to stop the Apple juggernaut.
Patent Law Exam 2023: Are you Smarter than a Law Student?
by Dennis Crouch
The following is my patent law exam from this past semester. As in years past, the exam was worth less than half of the final grade because the students did other substantial work during the semester, including a major moot court competition. Students were permitted access to their book/notes/internet, but were barred communications with another human during the exam.
This year's exam is very loosely based upon an interesting patent that I found associated with the Tow Whee product created by Eric Landis. See US11167164, US11731470, and US11724148. But, the events described are entirely my creation.
= = =
Artificial Intelligence and Copyright in China: Lessons from a Recent Court Case
Federal Circuit Appellate court Grants Emergency Stay of Apple Watch Ban
by Dennis Crouch
The patent battle between Masimo and Apple over pulse oximetry technology in the Apple Watch took a new turn on December 27th. Despite the recent import ban imposed by the U.S. International Trade Commission (ITC), Apple was granted a temporary stay by the U.S. Court of Appeals for the Federal Circuit. For now, this emergency ruling blocks the government from enforcing the exclusion order on certain Apple Watch models through at least mid-January. However, the legal fight is far from over. For Masimo, this short-term win for Apple weakens its bargaining position as the two companies continue their protracted patent dispute in courts and before regulatory agencies.
The Battle Over Domicile Disclosure by Trademark Applicants
by Dennis Crouch
In the pending appeal of In re Chestek, PLLC, No. 22-1843, a trademark applicant is opposing the USPTO requirement that all applicants must disclose their domicile address. This requirement, referred to as the “domicile address rule,” has been controversial since the USPTO adopted it in a 2019 rulemaking. For individuals, this rule requires an actual residential address. See Requirement of U.S. Licensed Attorney for Foreign Trademark Applicants and Registrants, Final Rule, 84 Fed. Reg. 31498 (July 2, 2019). The outcome could have significant implications for privacy and transparency in the trademark registration system. For a variety of reasons, many people do not publicly disclose their place of residence. In the US, the most common reasons stem from domestic violence and stalking. Although the USPTO is attempting to offer a mechanism to protect domestic residence from public view, it also recently had a major data loss of that information -- and effectively all domestic residence information is available in various sources online. A decision favoring the petitioner would also be seen as bolstering the Administrative Procedure Act’s notice and comment requirements.
The best place to begin any analysis is probably with the statute.