DMCA Takedown Notices: Never Enough, Always Too Much

picture1By Ari Robbins

Digital Millennium Copyright Act (“DMCA”) takedown notices are headed to the Supreme Court where they could themselves be facing a takedown. These notices are issued outside of a court process and are supposed to warn online hosts that content on their websites might constitute copyright infringement. Per the Ninth Circuit decision that is headed to the Court, Lenz v. Universal Music Corp., the sender of a takedown notice must have a subjective belief that material related to a notice is not fair use. Imposing such a standard has far reaching implications for all senders  and recipients of DMCA takedown notices.

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Fashion Police: Supreme Court Edition

varsityBy Yonah Reback

It’s not the first time the US Supreme Court has played “fashion police,” and it probably won’t be the last. In Star Athletica, LLC  v. Varsity Brands, Inc., however, the Court’s review of whether designs on cheerleading uniforms can be copyrighted promises to clarify an ambiguity that has been called “the most vexing, unresolved question in copyright law.”

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SCOTUS to Weigh in On Constitutionality of Offensive Trademarks


Another Controversial Trademark: The Washington Redskins

By Adam Roberts

Simon Shao Tam named his band ‘The Slants,’ to make a statement.  He wanted to address cultural issues and discussions regarding race in society.  This type of free speech is generally considered foundational to the protections of the First Amendment.  But, Tam was denied this right.

In In Re Tam, the U.S. Patent and Trademark Office (USPTO) denied Tam’s registration for ‘The Slants,’ finding that a “substantial composite of persons of Asian descent would find the term offensive.”  Tam appealed his case to the Federal Circuit Court of Appeals who overturned the decision.  In her opinion, Judge Kimberly Moore expressed that the statute on which the Government relied – Section 2(a) of the Lanham Act – was unconstitutional under the First Amendment.  The court held that discrimination against content-based private speech is subject to strict scrutiny, which means the Government must present a compelling interest to restrict this kind of speech.  The Government’s interest in excluding speech they determined offensive was considered illegitimate to the court, and a judgment was entered in favor of Tam.

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Justices Split on the First Patent Trial & Appeal Board Case

PTO IconBy Don Wang

In 2011 Congress enacted the Leahy-Smith American Invents Act (AIA), which established a new Patent Trial & Appeal Board (PTAB) within the Patent & Trademark Office (PTO) and instituted several new administrative proceedings to review certain issues of patentability. Ever since, patents before the Board have been perishing like Game of Throne wedding guests (or as Judge Rader puts it: PTAB are the “death squads killing property rights”). Unsurprisingly, unhappy patent owners seized their first possible opportunity to challenge various aspects of PTAB proceedings. This led to the Supreme Court hearing of Cuozzo Speed Technologies, LLC v. Lee, No. 15-446. The oral argument was conducted on April 25, 2016, and the transcript can be found here.

There are two questions on appeal, but the Court focuses almost exclusively on the first question: which claim construction standard should be used in a PTAB proceeding, the “broadest reasonable interpretation” standard (BRI) or the “plain and ordinary meaning” standard? The BRI is the claim construction standard applied by PTO during a patent examination.

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Supreme Court Clarifies Induced Infringement Standard


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By Amanda Brings

Earlier this month, in Limelight Networks, Inc. v. Akamai Technologies, Inc., a unanimous Supreme Court clarified the standard for induced patent infringement under 35 U.S.C. § 271(b). The Court held that a defendant may not be liable for inducing infringement of a method patent under 35 U.S.C. § 271(b) unless direct infringement has been committed under § 271(a). Under this standard, liability for induced infringement of a multi-step method patent can only attach when a single actor performs all the method steps. In so holding, the Court expressly rejected the Federal Circuit’s relaxed induced infringement standard, which did not require that a single actor perform all the method steps. The Court reversed the Federal Circuit’s decision that a defendant could be liable for induced infringement when it performed only some of the method steps and induced a third party to perform the remaining steps.

In Limelight, Akamai Technologies sued Limelight Networks for infringing its patent, which claimed a method of delivering electronic data using a content delivery network (CDN). Akamai operates a CDN and maintains multiple servers. Website owners contract with Akamai to deliver their websites’ content to Internet users. Akamai’s patent provides for a process known as “tagging,” wherein certain components of its customers’ websites (such as video or music files) are designated for storage on Akamai’s servers. By “tagging” files, Akamai increases the speed with which Internet users access its customers’ websites. Limelight also operates a CDN and carries out several of the steps in Akamai’s patent. Limelight, however, does not tag the components to be stored on its servers and requires its customers to perform their own “tagging.” Continue reading