Hot "off the presses" trademark news...

 

According to the PBS news story (https://lnkd.in/eerRKVJD) and main other media sources, many are steaming mad that a company (Momofuku) could trademark "chili crunch" for a historic Asian cuisine condiment (generically known as "chili crisp." While this PBS news story is a bit vague as to the real beef, a little poking around and it appears the issue of this hot topic is that many believe the U.S. Trademark Office should not have granted a trademark registration for "chili crunch" based on the mark being descriptive of the product (i.e. its chili and it crunches when chewed) and not a sufficient recognition of the trademark registrant (Momofuku) as the recognized origin of the condiment.

What do you think?

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© Stephen J. Weyer 2024

(* Disclaimer: All views expressed are exclusively those of the authors and do not reflect the views of Stites & Harbison, PLLC)

Does Alice [Work] Here Anymore?

Determining whether computer-implemented technology is eligible for U.S. patent protection continues to be an endeavor subject to scholarly disputes and patent litigation.  For example, a dispute over patent eligibility of claims to a system and method for processing (transmitting and visualizing) three dimensional images from two dimensional images is the subject of a recent U.S. Federal Circuit decision.   AI Visualize, Inc. v. Nuance Communications, Inc.

Distilling the two competing arguments (for and against patentability) were (1) improved functionality of a computer vs (2) abstract idea without an inventive concept transforming the abstract idea to something more.

The Court found the claims were the later and not the former using the U.S. Supreme Court’s two step analysis of Alice Corp. v. CLS Bank Int'l :: 573 U.S. 208 (2014).  In a nutshell, the Court found the claims essentially directed to non-patent eligible data manipulation.

After you read the decision, see if you…

            (1) agree with the Fed. Cir. and find the claims are directed to an abstract idea and nothing more, or

            (2) disagree with the Fed. Cir. and believe the claims improve the function of a computer and therefore should be considered patent eligible.

Then, please opine if you find the two-step analysis works or if you find “Alice Does Not [Work] Here Anymore.”

I have some thoughts to improve a likelihood patent claims will satisfy the current Alice test for subject matter eligibility but would like to hear what others have to say before adding what I consider to be a successful strategy.

Also, comments on improvements of claim language that would be more likely to establish “something more” than data manipulation.

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© Stephen J. Weyer 2024

(* Disclaimer: All views expressed are exclusively those of the authors and do not reflect the views of Stites & Harbison, PLLC)

"Paradise Lost" ... failed attempt to assert AI generated painting

 "Paradise Lost" 

... a failed attempt to assert copyright registration for AI generated painting 

In an attempt to assert copyright registration for an AI generated painting, facts matter.  Computer system ("Creativity Machine") owner ("plaintiff"), asserted in a U.S. copyright registration application that his computer system, generated the work, "A recent Entrance to Paradise," (shown here) on its own and without any human involvement.

The U.S. Copyright refused the registration on the grounds that it lacked authorship (i.e. a human author).   See THALER V. PERLMUTTER, 1:22-cv-01564, (D.D.C.).

The computer owner (plaintiff) appealed the Copyright Office's rejection to federal court.  In his appeal, he asserted new facts not in the copyright registration or before the Copyright Office, including that he..

1. "provided instructions and directed his AI to create the Work",
2. "the AI s entirely controlled by [him]", and 
3. “the AI only operates at [his] direction.”

However, since these facts were not asserted in the copyright application, the court rejected their consideration in its decision.  As a result the court agreed with the U.S. Copyright Office's refusal to grant copyright registration for the AI generated work. See THALER V. PERLMUTTER, 1:22-cv-01564, (D.D.C.).

Some commentators hail this copyright ruling as a victory for authors, artists, actors, and the like, over AI generated content for "would be" copyrightable works.  The thinking is that if AI generated content is not copyrightable, then the AI generated content could be copied.  And, without copyright protection, studios, publishers, television networks, etc., would be less likely to replace writers and actors with AI generated content.

Well, not so fast.... While this case underscores the principle that for U.S. copyright registration, the work must be the authorship of humans, the court did not dismiss the notion that AI generated content, that was directed to be produced by a human and controlled by a human could be subject to copyright registration. 

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© Stephen J. Weyer 2023

(* Disclaimer: All views expressed are exclusively those of the authors and do not reflect the views of Stites & Harbison, PLLC)

"Bad Spaniels Silly Squeaker" Dog toy....Trademark infringement or is Jack Daniel's barking up the wrong tree ?

(AP Photo/Jessica Gresko)

Does the dog toy, "Bad Spaniels Silly Squeaker" (left) infringe Jack Daniel's trademark (see its bottle, right)?

Jack Daniel's says YES.

"VIP" (manufacturer of the Bad Spaniels toy) says NO.

The ninth Circuit Court of Appeals says NO.

Now the U.S. Supreme Court will review the trademark dispute with a hope that it will provide clarity of what is and is not trademark infringement under U.S. federal trademark law when one endeavors to incorporate elements in its product that reassemble another's trademark.

The specific legal issues and legal procedure at the heart of this trademark dispute that the U.S. Supreme Court will likely address are surely interesting to trademark attorneys, legal scholars, law professors, and law students to name a few. 

But, since OP-IP is directed to the general business community and not what my Constitutional Law professor referred to as the "egg heads," a more interesting topic for consideration here is whether the arguable parody of the Jack Daniel's bottle (marks) (Bad Spaniel's toy) should be permissible or whether the Bad Spaniel's toy should be considered a trademark infringement.  

The talking heads on both sides of the debate have weighed in for and against trademark infringement.

What do you say....

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© Stephen J. Weyer 2022

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(* Disclaimer: All views expressed are exclusively those of the authors and do not reflect the views of Stites & Harbison, PLLC)

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Section 101: The Wrath of Rader

Analysis by former Federal Circuit judge, Randall Rader about the Federal Circuit’s blundering of the application of 35 U.S.C. § 101 (in layperson's language, determination subject matter eligible for patenting)"Rader Calls Out Fed. Circ.'s Role In Patent Law Confusion” - Law360) is spot on.  Many followers to OP-IP have heard me rag on the Federal Circuit for making the determination of patent eligibility under § 101 more confusing than less. Rader was quoted as saying "Sadly, the Federal Circuit, the court that should be identifying problems, is instead doing exactly the opposite and perpetuating them."  To that I say, Amen!

Rader did not limit his ire to the Federal Circuit.  Rather he purportedly also acknowledged that the Supreme Court is no friend to those trying to understand what is and is not patent eligible, figuratively assigning “poor grades” to the unworkable Supreme Court decisions in Alice v. CLS Bank and its other subsequent judicial decisions directed to establishing patent eligibility.  As someone who had a front row seat at the oral augments in Alice, (click for OP-IP analysis) the Supreme Court whiffed at an opportunity to define and clarify the metes and bound of an "abstract idea."  The lack of guidance is even more disheartening when you consider that the Supreme Court, itself, created the judicial exception disqualifying "abstract ideas" from patenting.  See Le Roy v. Tatham, 55 U.S. 156 (1852).  In other words, the Supreme Court's own precedent established "abstract ideas" as disqualifying an invention (subject matter) from patent eligibility, yet, the Supreme Court refuses to define what is or is not an abstract idea, how to identify an abstract idea, and when an idea is abstract and when an idea is not abstract.  

But, all hope is not lost.  Judge Rader has called for all that care about protecting patent rights of inventors and startups to step up and do what needs to be done to effect change.  

So what does that mean?  For some that may be becoming more active in trade organizations that present their challenges to Congress.  For legal organizations, e.g. ABA, AIPLA, etc. that may be to continue efforts to propose legislative reforms to clarify patent eligibly so that its determination is not subject to an unworkable algorithm.

We would love to hear what others propose for making the determination of patent subject matter eligibility easily, more consistently and much more objectively determined.

I'll get that conversation going.  Consider the following possible revision to the §101 patent eligibility statute language...

35 U.S. Code § 101 - Inventions patentable 

Whoever invents or [discovers] creates any [new and] useful process, machine, manufacture, or composition of matter, or any [new and] useful improvement thereof, may obtain a patent therefor, SUBJECT TO THE CONDITIONS AND REQUIREMENTS OF THIS TITLE.* 

(* subject to the conditions...allows for the deletion of "new" as this concept is covered by §§ 102 and 103, and more importantly, has led to patent eligibility test(s) that included a novelty, newness or level of innovation analysis; deletion of "discovers" seen as possibly problematic leading to the consideration of things "discovered" that exist in nature, naturally occurring or mathematical phenomena and were not invented, created or implemented by inventors, i.e. humans**)  

    (**humans...a conversation for another blog post)

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© Stephen J. Weyer 2022

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Ba da ba ba ba ♫ ... I'm NOT Lovin' it...

The world is watching in horror as one country, Russia, has invaded another country, the sovereign nation of Ukraine.  Countless thousands of lives have been lost and more will die as the war wages on.  The vast and overwhelming majority of the world is behind Ukraine and against the unprovoked invasion by Russia, standing for peace over the aggression of Russia.

Countries in solidarity against Russia have imposed sanctions against Russia knowing that doing so may have economic and other consequences from Russian retaliation.  One form of Russian’s retaliation has been to suspend enforcement of patents owned by companies and individuals from “unfriendly countries.”  Not surprisingly, the U.S. and those of the European Patent Organization (EPO) are on the Russia “unfriendly” list.

What this means for U.S. patent owners is that they cannot enforce their Russian patents.  Accordingly, such Russian patents held by U.S. companies and individuals can be infringed by anyone in Russia rendering the patents worthless to U.S. companies and individuals.

And, while as of this post, U.S. owners of trademarks and copyrights have not had their intellectual property rights rendered worthless, it seems like it's only a matter of time.

For example, many are aware that several U.S. companies have closed restaurants and businesses in Russia including McDonald’s which closed around 850 locations.  Not allowing these store fronts to go abandon, a Russian burger joint, Uncle Vanya has applied for trademark protection of a logo that can only be characterized as confusingly similar to the iconic golden arches. To the right is a copy of the trademark application’s logo for registration.  The party line explanation (a.k.a. propaganda) for the logo is that it is to represent the Cyrillic letter “B” which is the English equivalent of the letter “V,” representing the initial for Vanya. 

Needless to say, McDonald’s cannot be happy with an interloper burger joint using a clearly intentionally similar mark to mislead Russian consumers.  Stated differently, McDonald’s is not singing the phrases of this attempt to usurp its trademark or to paraphrase (and taking liberties of) one of McDonald’s trademark phrases, “Ba da ba ba ba ♫ ... I'm [NOT] Lovin' it...”

We will continue to work with our clients now and in the future to protect and preserve their intellectual property rights in Russia.

 

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© Stephen J. Weyer 2022

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MUNCHIES FOR THE STONE AGE

If you're like me, you love a good salty or sweet snack, right?  And, no judgment here, but there are those who also enjoy "recreational" products as well.  Up to now, if you wanted to have your snacks combined with your recreational products, you had to make the combination yourself.  

But what if you could have "two great tastes that taste great together" prepared for you that you could simply buy at the store or even better, online?

Lucky for you, you live now, in the "stone age" where you can purchase cannabis-laced snacks.  And, just in time of Halloween, cannabis-laced candy is available that gives a new meaning to "fun size" candy.  As a result, states are warning parents to be on the lookout for knock-off candy such as Sour Patch Kids candy (labeled "STONEY PATCH" shown above) and Oreo cookies (e.g. "Double Stuf STONEO" shown on the right).

To be very clear, these cannabis-laced snacks and candy are unauthorized, knock-off products, and in no way associated with the respective famous products' manufacturers.  The makers of these cannabis-laced products are violating numerous laws and regulations.  Accordingly, multiple states' attorneys general are actively perusing the manufacturers of these cannabis-laced products.  

In addition, these cannabis-laced product manufacturers and distributers are infringing the better known (original) products manufacturers' valuable intellectual property rights which include but not limited to trademark infringement, tarnishment, dilution, unfair competition, passing off, etc.

Finally, I'd be remiss if I didn't acknowledge the fact that I have been away from blogging for a while.  But in the timeless words of Frank Costanza, I'm back baby!

© Stephen J. Weyer 2021

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