Search Results for: GitHub-Foundations Online Prüfung 🍃 GitHub-Foundations Übungsmaterialien 🐝 GitHub-Foundations Testing Engine 🤹 Öffnen Sie 【 www.itzert.com 】 geben Sie ⮆ GitHub-Foundations ⮄ ein und erhalten Sie den kostenlosen Download 🕑GitHub-Foundations Tests

USDOJ: Contributory Infringement Requires Conscious and Culpable Acts

Patent

The Supreme Court is being asked to resolve a high-stakes battle over when Internet Service Providers (ISPs) can be held liable for their users’ copyright infringement. Two petitions — Cox Communications, Inc. v. Sony Music Entertainment (No. 24-171) and Sony Music Entertainment v. Cox Communications, Inc. (No. 24-181) — stem from a Fourth Circuit decision involving a $1 billion jury verdict against Cox for music piracy on its network. In November 2024, the Court invited the Solicitor General (SG) to weigh in. In late May 2025, SG John Sauer filed the government's brief, recommending that the Supreme Court grant Cox’s petition to clarify—and  ultimately narrow—the standard for contributory infringement.

For this post, I take a step back and talk through some of the legal doctrines at issue — contributory & vicarious liability — in the context of ISP copyright infringement and then delve into how they might apply in Cox.

Background: The litigation began when a consortium of record companies and music publishers (including Sony Music) sued Cox Communications for copyright infringement based upon actions by Cox’s internet subscribers. The alleged infringements occurred in 2013–2014, when Cox users engaged in massive peer-to-peer file sharing of music over networks like BitTorrent. At the time, anti-piracy agent, MarkMonitor, sent Cox hundreds of thousands of infringement notices identifying Cox subscribers by IP address. But, Cox’s internal policy was to follow an admittedly lax “thirteen-strike” system: repeat infringers would receive warnings and temporary suspensions, but Cox often declined to permanently terminate paying customers’ accounts. Evidence presented in the case showed Cox implemented its policy haphazardly—terminating only 33 subscribers for copyright abuse while tolerating many more—because it “wanted to avoid losing revenue” from monthly subscriber fees.

To continue reading, become a Patently-O member. Already a member? Simply log in to access the full post.

By all Means: When Software Functions Lack Correspnding Structure

Patent

by Dennis Crouch

In a case highlighting the ongoing challenge of claim construction in software patents, the Federal Circuit has affirmed the district court’s determination that Fintiv’s asserted claims are invalid as indefinite. Fintiv, Inc. v. PayPal Holdings, Inc., No. 2023-2312 (Fed. Cir. Apr. 30, 2025).  In the software-element two-step, the court first held that the claim terms “payment handler” and “payment handler service” should be treated as “mean-plus-function” limitations under 35 U.S.C. § 112(f) because the claim terms used lacked inherent structural meaning; and then as a result found the claims invalid as indefinite because the specification lacked sufficient structural support.   U.S. Patent Nos. 9,892,386, 11,120,413, 9,208,488, and 10,438,196.

The Statutes at Issues:

  • 35 U.S.C. 112(b) Conclusion. The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
  • 35 U.S.C. 112(f) Element in Claim for a Combination.
    An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.

(more…)

When Five Years of Use Isn’t Enough: The High Bar for Highly Descriptive Marks

Patent

by Dennis Crouch

Federal Circuit has affirmed the Trademark Trial and Appeal Board's (TTAB) finding that "iVoterGuide" and "iVoterGuide.com" are highly descriptive terms that failed to acquire distinctiveness. Heritage Alliance, AFA Action, Inc. v. The American Policy Roundtable, No. 2024-1155 (Fed. Cir. Apr. 9, 2025). The ruling maintains the dismissal of Heritage's opposition to American Policy Roundtable's (APR) applications to register "iVoters" and "iVoters.com" as trademarks.

This case presents a classic trademark problem: When is a mark distinctive enough to receive protection, especially when it describes the service being offered?

To continue reading, become a Patently-O member. Already a member? Simply log in to access the full post.

Non-Tariff Countermeasures to U.S. Tariff Hikes: IP, Services, and Investment Implications

Patent

by Dennis Crouch

In April 2025, President Trump took initiative to sharply increased tariffs on imports, citing trade imbalances and reciprocity. In response, major trading partners such as the European Union (EU), China and others are considered countermeasures that go beyond tit-for-tat tariffs. President Trump's actions were ostensibly driven by the large U.S. trade deficit in goods, but it also threatens key areas of U.S. strength – namely services, intellectual property (IP), and foreign investment where the U.S. runs global surpluses that far outpace the goods deficit. This asymmetry means that broad U.S. tariffs on goods can be met by partners' retaliation in areas where U.S. firms rely heavily on foreign markets. Non-tariff measures (NTMs) can include a variety of impediment to open markets reducing access without raising a customs duty. NTMs have been a major aspect of global trade initiatives over the past several decades--with the U.S. most often pushing our global partner nations to reduce barriers and provide open markets with free trade. That world has now changed.

To continue reading, become a Patently-O member. Already a member? Simply log in to access the full post.

Blurring the Line Between Law and Fact in Patent Eligibility

Patent

by Dennis Crouch

The well-worn advice to trial lawyers, famously captured by Carl Sandburg, has long been: "If the law is against you, pound on the facts. If the facts are against you, pound on the law. If both are against you, pound on the table."

This traditional dichotomy between law and fact reflects a fundamental principle of American jurisprudence - that certain questions are reserved for judges (law) while others are reserved for juries (fact).  And, even in cases where the judge serves both roles, the law provides for a strict separation of role. See FRCP 52(a).  But patent law doctrine often defies this clean separation. Take patent eligibility as an example: while courts characterize the atextual eligibility doctrine as ultimately a question of law, the analysis may require underlying factual determinations about what was conventional in the relevant field at the time of invention. And, even the "legal" aspects of eligibility analysis - like whether claims are "directed to" an abstract idea - require their own form of proof and evidence. The difference is that because courts have labeled these as questions of law, they bypass traditional evidentiary standards. This creates a peculiar framework where some elements of proof are subject to strict evidentiary requirements while closely related elements are left to judicial reasoning without similar constraints.  The problem has been further complicated in the eligibility area because the Federal Circuit has not generally required district courts to carefully separate their analysis between law and fact -- even at the pretrial stage where judicial factual conclusions are usually avoided.  These issues are raised to some extent in BBiTV's newly filed petition for certiorari, which challenges how courts handle disputed factual issues when deciding patent eligibility on summary judgment.

For me, BBiTV's argument raises deeper questions about how courts have arrived at this procedural framework for handling patent eligibility determinations. In my view, several historical developments in patent law have contributed to the current state of affairs, where judges increasingly make what appear to be factual determinations under the guise of eligibility legal analysis. These developments, combined with institutional pressures and uncertainties about the role of the Seventh Amendment in patent eligibility determinations, have somewhat blurred the distinction between law and fact. After reviewing the BBiTV case in particular, I move on to examine these contributing factors and their implications for how courts handle disputed facts in patent eligibility cases.

To continue reading, become a Patently-O member. Already a member? Simply log in to access the full post.

Voluntary Dismissals and Attorney Fees

Patent

by Dennis Crouch

The Copyright Act and the Patent Act each include an attorney fee provision — permitting the district court to award “a reasonable attorney’s fee to the prevailing party.”  Because of similarities in the provisions, they tend to be interpreted together — at least with regard to what qualifies as a “prevailing party” under the statute.  (Unlike in copyright law, the patent law limits fees to “exceptional case[s]”).

On the Copyright side, there is a growing circuit split on the issue of whether defendants can recover attorney’s fees after a plaintiff voluntarily dismisses under Rule 41(a)(1).   That rule permits for voluntary dismissal and does not require a court order.  Affordable Aerial Photography, Inc. v. Property Matters USA, LLC, 108 F.4th 1358 (11th Cir. 2024), the 11th Circuit held that “some judicial action rejecting or rebuffing a plaintiff’s claim is necessary to endow a defendant with prevailing party status.”  In a parallel decision, the 11th Circuit clarified that a plainttif’s voluntary dismissal does not create a prevailing party status even if made “with prejudice.” Affordable Aerial Photography, Inc. v. Reyes, No. 23-12051, 2024 WL 4024619 (11th Cir. Sep. 3, 2024).

The Federal Circuit has developed a body of law holding that voluntary dismissals with prejudice can support prevailing party status and fee awards in patent cases. See O.F. Mossberg & Sons, Inc. v. Timney Triggers, LLC, 955 F.3d 990 (Fed. Cir. 2020). However, the Federal Circuit generally denies prevailing party status after Rule 41(a)(1) dismissals without prejudice.  The Ninth Circuit approach looks to the general question of preclusion – asking whether the plaintiff is “judicially precluded from refiling the claim.”  If so, then the defendant qualifies as the prevailing party. Cadkin v. Loose, 569 F.3d 1142 (9th Cir. 2009). So, we have something of a split here between the various circuits. (more…)

From Chief Judge Markey’s Promise to Rule 36: We Do Not Just Render One-Worded Decisions

Patent

by Dennis Crouch

The Supreme Court currently has before it a unique opportunity to address a longstanding problem with the Federal Circuit’s practice of issuing no-opinion summary affirmances in patent cases. The recently filed ParkerVision petition presents a compelling argument that the Federal Circuit’s heavy reliance on Local Rule 36 judgments violates 35 U.S.C. § 144’s requirement that the court “shall issue… its mandate and opinion” when deciding appeals from the Patent Office. This violation has become particularly acute given the surge in appeals from Patent Trial and Appeal Board (PTAB) decisions in recent years. ParkerVision vs. TCL Indus., 24-518.  While appellate opinions serve fundamental interests of human dignity and the rule of law — interests that take on special significance as here when no other Article III court has addressed the dispute — this case presents an even clearer problem because Congress has specifically mandated through Section 144 that the Federal Circuit ‘shall issue’ an opinion in appeals from USPTO decisions.

The ParkerVision petition arises from the Federal Circuit’s summary affirmance of PTAB decisions that invalidated the patentee’s claims related to wireless communication technology. After TCL and LG Electronics successfully challenged the patents via inter partes review (IPR), ParkerVision appealed to the Federal Circuit raising procedural questions about whether the PTAB improperly relied on arguments that had been waived. Rather than addressing the merits of the arguments, the Federal Circuit instead disposed of both appeals without any opinion and rather simply an “AFFIRMED” judgments under Rule 36, providing no explanation for its decisions.

The question presented thus asks:

Whether 35 U.S.C. § 144, which requires the Federal Circuit to issue ‘opinion[s]’ in PTAB appeals, is a reason-giving directive that prohibits the Federal Circuit’s practice, under Federal Circuit Rule 36(a), of summarily affirming PTAB decisions without issuing opinions.

ParkerVision vs. TCL Indus., 24-518 (petition for writ of certiorari).

More reading:

(more…)

Federal Circuit Issues Twin Decisions in Cellspin Cases: Procedure and Timing Matter

Patent

by Dennis Crouch

The Federal Circuit today issued two related opinions in long-running patent litigation between Cellspin and various technology companies including Fitbit, Nikon, Nike, and others. The decisions highlight important procedural issues in patent litigation while also addressing the timing requirements for judicial recusal motions.  Collectively, they highlight the reality that the outcome of complex civil litigation often turns on procedural issues.

(more…)

2nd Innovator Diversity Pilots Conference: Advancing Inclusion in Innovation

Patent

Coming up just before the big IPO conference in Chicago, Emory Law in Atlanta will be hosting the 2nd Innovator Diversity Pilots Conference.  This event looks excellent, and I wish I could attend. (I'll be in the woods at a "ManKind Project" retreat).

Details: Friday, September 20, 2024, 8:45 a.m. - 5:30 p.m.  In person or online. https://law.emory.edu/impact/conferences/innovator-diversity-pilots-conference.html.

USPTO Dir Kathi Vidal and other Biden Administration officials have been very open to trying well designed pilot programs that offer some promise to effectively increase participation and engagement of underrepresented groups within the innovation ecosphere.  Although many of the pilots focus on gender and race/ethnicity, the mindset of most really seems to be thinking about ways to make sure that everyone feels that patent-incentive -- adding fuel to the fire of genius.  I expect that the pilots that really work will be rolled-out as deliverables to everyone.

Key topics:

- Lessons learned from recent innovator diversity pilots
- Practical insights from the Diversity Pledge and other law firm diversity initiatives.
- The future of patent drafting and prosecution in the age of AI
- Strategies for retaining diverse talent in the patent profession

It is a mix of academic research presentations and practical discussions.

To continue reading, become a Patently-O member. Already a member? Simply log in to access the full post.

Lovevery Argues that APEX Jurisdiction Holding Undermines Anti-Counterfeiting Efforts

Patent

by Dennis Crouch

This is my third post about SnapPower (SnapRays) v. Lighting Defense, and the Federal Circuit's holding that patentee's who use Amazon's patent enforcement process (APEX) to block infringing product sales open themselves to personal jurisdiction in the home state of the accused infringer. SnapPower v. Lighting Def. Group, 100 F.4th 1371 (Fed. Cir. 2024). In my view, the Federal Circuit has gone too far with aggressive personal jurisdiction in this case, and the patentee Lighting Defense has petitioned for en banc rehearing on the issue.

Most recently, toy-maker Lovevery has filed an amicus brief supporting en banc review.

To continue reading, become a Patently-O member. Already a member? Simply log in to access the full post.

Patentees Out of Luck Again: CAFed Sides with DraftKings that Remote Gambling Patent Ineligible

Patent, , , , ,

by Dennis Crouch

The Federal Circuit has affirmed a D.N.J. court's dismissal of patentee Beteiro's infringement complaints against DraftKings, et al., agreeing that the asserted claims are directed to patent ineligible subject matter under 35 U.S.C. § 101. Beteiro, LLC v. DraftKings Inc., No. 2022-2275 (Fed. Cir. June 21, 2024). The patents at issue were directed to methods of facilitating remote gambling activity using devises equipped with GPS. 

To continue reading, become a Patently-O member. Already a member? Simply log in to access the full post.

Mishandled Disclosures: A Greek Tragedy in IP Law

Patent, , , , , , ,

by Dennis Crouch

Neuropublic S.A., a Greek technology company, has filed a federal lawsuit against the law firm Ladas & Parry LLP, with several claims stemming from the firm's alleged mishandling of Neuropublic's confidential invention disclosure -- sending it out to a third party ("PatentManiac") for a preliminary novelty search which then (again allegedly) further leaked the disclosure. Although the case does not involve submission to AI algorithms, some of the questions here are similar to those many  IP attorneys are considering when onboarding new AI tools.

To continue reading, become a Patently-O member. Already a member? Simply log in to access the full post.

Gorsuch’s “Dead Letter” Prophecy: Hearst v. Martinelli may Settle Copyright’s Discovery Rule following the Warner Chappell Avoidance

Patent, , , , , , , ,

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

To continue reading, become a Patently-O member. Already a member? Simply log in to access the full post.

The Design Law Treaty and the Struggle for International Harmonization of Industrial Design Protection

Patent, , , , , , ,

By Dennis crouch

The international IP community is moving toward further harmonizing legal protection for industrial designs. For almost twenty years, member states of the World Intellectual Property Organization (WIPO) have been negotiating a Design Law Treaty (DLT) that would streamline and align procedural requirements for obtaining registered design rights across jurisdictions. If successful, the DLT would make it "significantly easier for small and medium-sized enterprises to obtain industrial design protection overseas as a result of simplified, streamlined and aligned procedures and requirements."[1]  The DLT can be seen as parallel to the Patent Law Treaty (PLT) adopted in 2000 that helped to harmonize and standardize the formal patent procedures such as the filing requirements sufficient for obtaining a filing date.

Throughout this time, it has been difficult to implement almost any global IP treaty because

To continue reading, become a Patently-O member. Already a member? Simply log in to access the full post.

When is a Government Official’s Social Media a State Action?

Patent,

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:

  1. possessed actual authority to speak on the State's behalf on the particular matter at issue, and
  2. purported to exercise that authority when speaking in the relevant social media posts.

To continue reading, become a Patently-O member. Already a member? Simply log in to access the full post.

Banning TikTok: Protecting Americans from Foreign Adversary Controlled Applications Act

Patent

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.

To continue reading, become a Patently-O member. Already a member? Simply log in to access the full post.