By Jeffrey Echert

The ongoing saga of Robin Thicke, one marked by bizarre admissions, inconsistent statements, and general incredulity, continues. On October 30, Judge John Kronstadt, sitting in the Central District of California, denied Thicke’s motion for summary judgment in a highly publicized case against the heirs of Marvin Gaye.

We first reported on the suit nearly a year ago–-the Gaye family claims that two songs by Robin Thicke, “Blurred Lines” and “Love After War,” infringe on the copyrights of two Gaye compositions, “Got to Give It Up” and “After the Dance,” respectively. Both sides submitted their dueling musicologists, and the conclusion is this: the possibility of substantial similarity between the songs is high enough to go to trial. Given that direct evidence of copying is exceedingly rare in copyright cases, courts allow plaintiffs to show copyright infringement by (1) showing that the defendant had access to the work purportedly copied, and (2) that substantial similarity exists between the works at issue. The first point, access, wasn’t contested, but the dispute over the second, with Kronstadt’s ruling, warrants trial. Continue reading →

By Miriam Swedlow

Apple Inc. recently filed a writ of certiorari with the Supreme Court requesting that the Court review the Federal Circuit’s ruling in Ancora Tech., Inc. v. Apple, Inc. in light of recent and pending decisions from the high court. The case underscores the need for clarification of the standard of review for patent construction in light of complex technology.

Apple’s petition, filed on October 20, presents the following issues: (1) Whether review of Ancora should wait until after the Court’s ruling in Teva Pharm. USA, Inc. v. Sandoz, Inc., which will determine whether review of patent claim construction should be done de novo, because the Federal Circuit applied de novo review in rejecting the district court’s claim construction of a key term in the case; and (2) Whether the Court should grant, vacate, and remand Ancora for reconsideration after the Court’s June 2, 2014 rejection of the Federal Circuit’s patent indefiniteness standard in Nautilus, Inc. v. Biosig Instruments, Inc.

Ancora holds a patent on an anti-piracy process that checks software and determines whether it is operating within the scope of a license. Unlicensed software is prevented from operating. Ancora filed suit against Apple, alleging that Apple’s iOS mobile operating system infringes on this patent. A key issue in the case is the scope of the term “program” within the patent claim. The district court held that the claim construction of the term “program” described “a set of instructions for software application that can be executed by a computer.” Applying this definition, the district court dismissed the claim on summary judgment. Ancora appealed and the Federal Circuit applied de novo review of the claim construction. It rejected the district court’s construction of “program” as limited to application programs and ruled that Apple’s iOS program violates Ancora’s anti-piracy patent. Continue reading →