Paul Devinsky
New York
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Articles by Paul Devinsky
En Banc Federal Circuit Cools Damages Award Because of Improper Expert Testimony | JD Supra
In an en banc decision in EcoFactor, Inc. v. Google LLC, the US Court of Appeals for the Federal Circuit concluded that the district court abused its discretion by admitting testimony from a damages expert that a lump-sum payment in EcoFactor’s license agreements reflected a certain per-unit royalty rate because the testimony was not based on sufficient facts or data. In Depth EcoFactor sued Google over its Nest thermostats that allegedly infringed EcoFactor’s HVAC patent.
Copyright, AI, and Politics
In early 2023, the US Copyright Office (CO) initiated an examination of copyright law and policy issues raised by artificial intelligence (AI), including the scope of copyright in AI-generated works and the use of copyrighted materials in AI training. Since then, the CO has issued the first two installments of a three-part report: part one […]
CFPB Narrows State Enforcement Powers by Rescinding 2022 Interpretative Rule
Skip to main content May 22, 2025 Volume XV, Number 142 Legal Analysis. Expertly Written. Quickly Found. Trending News CFPB Narrows State Enforcement Powers by Rescinding 2022 Interpretative Rule Print Mail Download />i Facebook Twitter Linkedin Pinterest Reddit Facebook Messenger Email Digg Print X Buffer Flipboard On May 15, the CFPB rescinded its May 2022 interpretive rule that had expanded state enforcement authority under Section 1042 of the Consumer Financial Protection Act (CFPA).
Copyright Law and Artificial Intelligence Training
In early 2023, the US Copyright Office (CO) initiated an examination of copyright law and policy issues raised by artificial intelligence (AI), including the scope of copyright in AI-generated works and the use of copyrighted materials in AI training. Since then, the CO has issued the first two installments of a three-part report: part one on digital replicas, and part two on copyrightability.
Federal Circuit Issues Decision in Navy Copyright Infringement Ca
In a long-standing copyright dispute on its second visit to the US Court of Appeals for the Federal Circuit, the Court affirmed the modest damages award from the US Court of Federal Claims, ruling that a hypothetical negotiation between the parties would have resulted in a license in the amount awarded by the claims court. Bitmanagement Software GmBH v. United States, Case No. 23-1506 (Fed. Cir. Jan.
Data Mining For AI Systems Training Permitted Under German Law
In a landmark decision, a German district court recently decided that copying images to create a data set that can potentially be used for training generative artificial intelligence (AI) systems does not infringe German copyright law. Robert Kneschke v. Large Scale Artificial Intelligence Open Network, Case No. GRUR-RS 2024, 25458 (Hamburg District Court Sept.
When 'Patented' Goes Beyond Inventorship In False Ad Cases
By Karen Gover and Paul Devinsky ( November 6, 2024, 3:03 PM EST) -- When a shoe manufacturer falsely advertises that the primary material in their foam footwear is "patented," "proprietary" and "exclusive," is it a claim about the shoe's inventorship, or about attributes of the shoes themselves? According to the U.S. Court of Appeals for the Federal Circuit: both, at least sometimes.... Law360 is on it, so you are, too.
Final Rule On DMCA Grants Circumvention Exemptions
On October 25, 2024, the Librarian of Congress Carla Hayden adopted a final rule granting exemptions to a Digital Millennium Copyright Act (DMCA) provision that prohibits circumvention of technological measures that control access to copyrighted works. The new final rule went into effect October 28, 2024. In 1998, as part of the DMCA, Congress added § 1201 to the Copyright Laws (Title 17) to provide greater legal protection for copyright owners in the then-emerging digital environment.
Final Rule on DMCA Grants Circumvention Exemptions | JD Supra
On October 25, 2024, the Librarian of Congress Carla Hayden adopted a final rule granting exemptions to a Digital Millennium Copyright Act (DMCA) provision that prohibits circumvention of technological measures that control access to copyrighted works. The new final rule went into effect October 28, 2024. In 1998, as part of the DMCA, Congress added § 1201 to the Copyright Laws (Title 17) to provide greater legal protection for copyright owners in the then-emerging digital environment.
New DMCA Exemptions Expand Access for Research and Repairs
On October 25, 2024, the Librarian of Congress Carla Hayden adopted a final rule granting exemptions to a Digital Millennium Copyright Act (DMCA) provision that prohibits circumvention of technological measures that control access to copyrighted works. The new final rule went into effect October 28, 2024. In 1998, as part of the DMCA, Congress added § 1201 to the Copyright Laws (Title 17) to provide greater legal protection for copyright owners in the then-emerging digital environment.
Jurisdiction "Found": Navigating E-Commerce Boundaries In Copyright Disputes
In a copyright case, the US Court of Appeals for the Tenth Circuit determined that the district court had jurisdiction over two Chinese companies that consented to jurisdiction in any judicial district in which a third-party e-commerce company could be "found." The Tenth Circuit concluded that whether an e-commerce company is "found" in a district for purposes of jurisdiction is determined based on whether its officers or agents carry out the company's business there, not on the manner in...
The Conversation Continues: Some Post-Patent-Termination Royalties Are Acceptable
For the second time in less than two weeks, a circuit court decided an appeal hinging on the Brulotte rule, which holds that patent royalties are impermissible when based on payments for the use of expired patents. Like the US Court of Appeals for the Ninth Circuit, the Fourth Circuit upheld a royalty agreement that purported to require payments after patent expiration. Ares Trading S.A. v. Dyax Corp., Case No. 23-1487 (4th Cir. Aug.
Arguing Internet Availability To Establish Copyright Infringement Is Bananas
In an unpublished opinion, the US Court of Appeals for the Eleventh Circuit affirmed a district court's decision finding that a pro se Californian artist failed to establish that an Italian artist had reasonable opportunity to access the copyrighted work simply because it was available to view on the internet. Morford v. Cattelan, Case No. 23-12263 (11th Cir. Aug. 16, 2024) (Jordan, Pryor, Branch, JJ.) (per curiam).
Federal Circuit vacates TTAB decision in dispute between two religious organisations
In response to a motion appeal from the TTAB, the US Court of Appeals for the Federal Circuit admonished the board on remand to “furnish a reasoned explanation” when departing from its “established practice” on the issue of waiver (Universal Life Church Monastery Storehouse v American Marriage Ministries, Case 22/1744, 22 November 2023, Chen, Cunningham, Stark, JJ).
Word From on High: Provide Reasoned Explanation When Departing From Established Practice
In a decision on motion in an appeal from the Trademark Trial & Appeal Board, the US Court of Appeals for the Federal Circuit admonished the Board on remand to “furnish a reasoned explanation” when departing from its “established practice” on the issue of waiver. Universal Life Church Monastery v. American Marriage Ministries, Case No. 22-1744 (Fed. Cir. Nov. 22, 2023) (Chen, Cunningham, Stark, JJ.) (unpublished).
Federal Circuit rules that fraud after registration is not a basis for cancellation
In a split panel decision, the US Court of Appeals for the Federal Circuit has overturned the TTAB and ruled that a fraudulent declaration under Section 15 of the Lanham Act is not a basis for cancellation of an otherwise incontestable registered mark (Great Concepts LLC v Chutter Inc, Case 22/1212, 18 October 2023, Dyk, Stark, JJ, Renya, J, dissenting).
Here’s a Great Concept: Fraud After Registration Is Not a Basis for Cancellation
In a split panel decision, the US Court of Appeals for the Federal Circuit overturned the Trademark Trial & Appeal Board and ruled that a fraudulent declaration under Section 15 of the Lanham Act is not a basis for cancellation of an otherwise incontestable registered mark. Great Concepts, LLC v. Chutter, Inc., Case No. 22-1212 (Fed. Cir. Oct. 18, 2023) (Dyk, Stark, JJ) (Renya, J., dissenting).
Enabling and Amending Medytox v. Galderma
In a post-grant review appeal, the US Court of Appeals for the Federal Circuit explained that patent claims reciting a range must enable the full scope of that range and, under the Administrative Procedure Act (APA), the Patent Trial & Appeal Board is not bound to decisions rendered in a Preliminary Guidance. Medytox, Inc. v. Galderma S.A., Case No. 22-1165 (Fed. Cir.
Patent Office to Raise Application Fees
On May 8, 2023, the US Patent & Trademark Office (PTO) announced proposed trademark fee increases. The proposed fee increases are the result of lower revenue than previously forecasted and higher-than-expected inflation. Aggregate PTO operating costs are projected to exceed aggregate fee revenue beginning this fiscal year.
Analogous Art Must Be Compared to Challenged Patent
The US Court of Appeals for the Federal Circuit reversed a Patent Trial & Appeal Board obviousness decision, finding that a prior art reference relating to automotive engine parts was not analogous art to the challenged patent, which related to injection devices used for drug delivery. Sanofi-Aventis Deutschland GMBH v. Mylan Pharmaceuticals Inc., Case No. 21-1981 (Fed. Cir.
The National Law Review
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Supreme Court to Consider Whether Lanham Act Reaches Foreign Defendants’ Extraterritorial Conduct
Thursday, November 10, 2022 The Supreme Court of the United States agreed to review the geographic scope of the Lanham Act and the extent to which trademark owners can use US trademarks to police foreign sales. ., Case No. 21-1043 (Supr. Ct. Nov. 4, 2022) ( granted).
EU Unified Patent Court Announces Intent to Launch on April 1, 2023 | JD Supra
The EU Unified Patent Court (UPC) announced a launch date of April 1, 2023, however, the announced date should be regarded as a statement of intent for it could change. The launch timing has been the subject of various delays and setbacks, several due to unresolved legal issues. Future UPC judges are set to receive special training starting in March 2023, only one month prior to the announced launch date of the UPC, leading many to doubt that the April 1 date will be met.
And the Band Played On: Reviewing Rule 54(b) Partial Summary Judgment Based on Who Did What to Whom and When | JD Supra
In a case where the cast of characters on both sides of the v.
And the Band Played On: Reviewing Rule 54(b) Partial Summary Judgment Based on Who Did What to Whom and When
Thursday, October 6, 2022 In a case where the cast of characters on both sides of the v.
Play It Again and Again (Sam): Meanwhile No Injunction, No Fees
Thursday, September 15, 2022 In its third opportunity to review the district court’s decision in this trade secret case involving flooring, the US Court of Appeals for the Eleventh Circuit again reversed, this time vacating a permanent injunction and an award of attorneys’ fees. The Eleventh Circuit noted that the district court failed to make the findings required to support an injunction and abused its discretion in awarding full fees notwithstanding prior reversal of relief awarded.
MADE IN NATURE v NATURE MADE: a primer on practice at the Trademark Trial and Appeal Board
United States of America Legal updates: case law analysis and intelligence The Trademark Trial and Appeal Board took the lawyers for each side to task for ignoring TTAB rules in the presentation of their case. Register for limited access Register to receive our weekly newsletter and access two of our subscriber-only articles per month. Register now Subscribe and start reading now Subscribe for unlimited access to articles, in-depth analysis and research from the WTR experts.
A Primer on Practice at the Trademark Trial & Appeal Board | JD Supra
In a precedential decision rendered in an opposition proceeding, the Trademark Trial & Appeal Board (Board) took the lawyers for each side to task for ignoring Board rules in presentation of their case, but ultimately decided the case on a likelihood of confusion analysis. The Board found that the parties’ marks and goods were “highly similar” and sustained the opposition. Made in Nature, LLC v. Pharmavite LLC, Opposition Nos.
TTAB Intellectual Property Practice, Made in Nature, LLC v. Pharmavite LLC
Legal Disclaimer You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
Drink up, but not with the Lehman brand
United States of America Legal updates: case law analysis and intelligence The Federal Circuit upheld a Trademark Trial and Appeal Board refusal to register a trademark based on likelihood of confusion with a famous - but expired - mark. Register for limited access Register to receive our weekly newsletter and access two of our subscriber-only articles per month.
Drink Up, but Not with Lehman Brand | JD Supra
In the context of an opposition proceeding, the US Court of Appeals for the Federal Circuit upheld a Trademark Trial & Appeal Board (Board) refusal to register a trademark based on likelihood of confusion with a famous but expired mark, notwithstanding the applicant’s assertion of abandonment of the mark by the original registrant. Tiger Lily Ventures Ltd. v. Barclays Capital Inc., Case Nos. 21-1107;- 1228 (Fed. Cir.
This Case Is Both Hot and Exceptional—Attorneys’ Fees and Inequitable Conduct
Thursday, October 28, 2021 In a second visit to the US Court of Appeals for the Federal Circuit, after the Court affirmed a finding of unenforceability due to inequitable conduct based on “bad faith” non-disclosure of statutory bar prior sales on the first visit, the Court affirmed a remand award of attorneys’ fees based on a finding of exceptionality under 35 U.S.C. § 285. Energy Heating, LLC v. Heat On-The-Fly, LLC, Case No. 20-2038 (Fed. Cir. Oct.
Supreme Court to Consider Fraudulent Intent in Copyright Registration | JD Supra
The Supreme Court of the United States agreed to consider whether a copyright registration accurately reflecting a work can nevertheless be invalidated without fraudulent intent. Unicolors Inc. v. H&M Hennes & Mauritz LP, Case No. 20-915 (Supr. Ct. June 1, 2021) (certiorari granted) The US Court of Appeals for the Ninth Circuit reversed a district court decision awarding Unicolors a copyright infringement award of $800,000 as well as attorneys’ fees.
Supreme Court to Consider Fraudulent Intent in Copyright Registration
Legal Disclaimer You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
New Perspective on Specific Personal Jurisdiction in Patent DJ Venue | JD Supra
The US Court of Appeals for the Federal Circuit concluded that the minimum contacts or purposeful availment test for specific personal jurisdiction was satisfied where a patent owner sent multiple infringement notice letters and other communications to a resident of California who then filed for declaratory judgment of non-infringement in federal district court in California. Trimble Inc. v. PerDiemCo LLC, Case No. 19-2164 (Fed. Cir.
New Perspective on Specific Personal Jurisdiction in Patent DJ Venue
Legal Disclaimer You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
The Future of Skinny Labeling in Patent Litigation Will be Reconsidered | JD Supra
The US Court of Appeals for the Federal Circuit has now vacated its prior ruling finding induced infringement based on so-called skinny labeling on a pharmaceutical product. GlaxoSmithKline LLC v. Teva Pharmaceuticals USA Inc., Case no.18-1876 (Fed. Cir. Feb. 9, 2021) PER CURIAM. The case concerns communications regarding generic approvals and “skinny labels,” which permit companies to sell pharmaceutical products that omit certain patented uses. On Oct.
The Future of Skinny Labeling in Patent Litigation Will be Reconsidered
Legal Disclaimer You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
The Naked Truth About Trademark Cancellation: Only Harm, No Proprietary Interest Required
Amol Parikh is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm's Chicago office. He focuses his practice on IP litigation, counseling and prosecution. Amol has been recognized as a 2011 Illinois Rising Star in Intellectual Property by Law & Politics. Rising Stars are lawyers under the age of 40 that have been in practice for 10 years or less. No more than 2.5 percent of the lawyers in Illinois are named as Rising Stars.
Too Early To Hang Up On Click-to-Call
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Too Early to Hang Up on Click-to-Call | JD Supra
In the wake of its six-week-old decision in Thryv, Inc. v. Click-to-Call Technologies, LP, the Supreme Court of the United States has now granted certiorari in an appeal of another case arising from a Federal Circuit appeal from a Patent Trial and Appeal Board (PTAB) institution decision; this time, an institution decision as to whether a patent qualifies for covered business method (CBM) review. Emerson Electric Co. v. Sipco, LLC, Case No. 19-966 (Supr. Ct. June 15, 2020).
Click-to-Call Technologies for CBM Review
You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
Too Early to Hang Up on Click-to-Call
In the wake of its six-week-old decision in Thryv, Inc. v. Click-to-Call Technologies, LP, the Supreme Court of the United States has now granted certiorari in an appeal of another case arising from a Federal Circuit appeal from a Patent Trial and Appeal Board (PTAB) institution decision; this time, an institution decision as to whether a patent qualifies for covered business method (CBM) review. Emerson Electric Co. v. Sipco, LLC, Case No. 19-966 (Supr. Ct. June 15, 2020).
Computer Fraud And Abuse Act Set For Initial Supreme Court Review
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Computer Fraud and Abuse Act Set for Initial Supreme Court Review | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
Computer Fraud and Abuse Act Set for Initial Supreme Court Review
In the wake of a 5-4 circuit court split, the Supreme Court of the United States granted certiorari to review the 1986 Computer Fraud and Abuse Act(CFAA) and specifically whether a person who is authorized to access information on a computer for certain purposes violates the CFAA if he accesses the same information for an improper purpose. Van Buren v. United States, Case No. 19-783 (Supr. Ct., Apr. 20, 2020) (certiorari granted).
Decisions Applying the § 315(b) Time Bar When Instituting IPR Proceedings Nonappealable | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
No Disclaimer, No Problem – Terms Limited by Consistent Statements
Amol Parikh is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm's Chicago office. He focuses his practice on IP litigation, counseling and prosecution. Amol has been recognized as a 2011 Illinois Rising Star in Intellectual Property by Law & Politics. Rising Stars are lawyers under the age of 40 that have been in practice for 10 years or less. No more than 2.5 percent of the lawyers in Illinois are named as Rising Stars.
Supreme Court to Consider When a Mark Is Too Generic for Protection | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
Supreme Court to Weigh In on Google-Oracle Copyright Dispute | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
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