June 5 / Article, Technology

Liability of Tesla’s Autopilot System Under California Tort Law

Abstract: Imagine riding across the country in the comfort of your own car and from it, admiring the country’s most beautiful cityscapes, beaches, natural forests, and mountain ranges without even having to get behind the wheel. Imagine not having to spend countless, frustrating hours trying to brake in response to the dozens of cars weaving in and out of the lanes around you, and instead, being able to catch up with friends and family over drinks, meals, and movies while your car drives itself. None of this is too good to be true. Many car manufacturers like Ford and Toyota are racing to develop the first fully autonomous vehicle by 2020.

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April 3 / Uncategorized

IPTF Podcast Episode 3: Steve Ayr

March 8 / Article, Other Intellectual Property

Dilemma of Trade Dress, Informational Values and Enigmatic Distinctiveness; Semiotics Illuminating the Status of Distinctiveness

Abstract: From info-economic point of view, the growing kinds of interactions between producers and consumers have occupied a large extent of commercial dialogues. The way by which a trade dress as an example of trademarks could promote the quality of an info-commercial system is our first question. At the same time, we know that the trademark law system, each of word mark and trade dress plays its own communicational roles based on laws which govern each of lingual and visual systems of communication. However, as a matter of fact, assimilating the concepts “trademark” and “trade dress” has invariably been posing the fundamental question of determination of “distinctiveness”. In this article we have tried to analyze and streamline the question of distinctiveness of trade dress based upon semiotics. Reaching at the conclusion that in terms of distinctiveness trade dress should be treated as a “pre-occurred” and explore-able event in relation to consumers not as a “presume-able” matter in relation to trade dress itself.

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February 7 / Blogs, Patent

Titans of Industry: The Frazier v. Ali of Patent Litigation

Abstract: The two largest individual shareholders in the smartphone industry, Samsung and Apple, have engaged in patent litigation that includes ten countries and millions of dollars in damages. Both companies have tried to get the other’s product pulled from the market with very limited success. In the United States, Apple, Inc. v. Samsung Electronics Co. has progressed all the way to the Supreme Court (“SCOTUS”). The SCOTUS has not heard a patent design case in 120 years which signals the increasing importance technology and its implications are playing in our society.

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February 7 / Blogs, Copyright

The Baby That Won’t Stop Dancing: The Effect of Lenz Case on DMCA

Abstract: In February 2007, Stephanie Lenz recorded a twenty-nine second video of her two young children dancing to the famous song “Let’s Go Crazy” by recording artist Prince. Lenz posted the video titled “Let’s Go Crazy #1” to YouTube.com (“YouTube”). At the time of the posting, Universal Music Group (“Universal”) was Prince’s publishing administrator and was responsible for his copyright enforcement. To enforce their copyrights on YouTube, Universal’s head of business affairs assigned the task of monitoring YouTube videos to a single employee. This employee would enter the titles of the most popular Prince songs into the YouTube search field and review the video to determine if it used one or more of Prince’s songs. Where a Prince song was used in the video, company policy required the employee to include the video on a removal list if the composition was the “focus of the video,” as it was in this case. This removal list was sent to another Universal employee, who emailed the removal list (“Takedown Notice”) to YouTube on June 4, 2007. The Takedown Notice was sent to copyright@youtube.com, the email address YouTube identified in its Terms of Service as intended solely for receiving notifications of alleged infringements under the Digital Millennium Copyright Act (“DMCA”).

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February 7 / Blogs, Other Intellectual Property, Technology

Friend or Foe: Legal Rights of Artificial Intelligence

Abstract: As technology develops around the world, various forms of artificial intelligence are beginning to appear in every aspect of our daily lives. Robotic technology, such as drones and driverless cars, assist us in the transportation, military, and security sectors. Scientists predict that human jobs will be outsourced to machines and robots in the near future. Consequently, certain questions have arisen about the legal status of robots and whether robots may require constitutional rights. If robots are given legal rights, should they also be held liable for any illegal acts that they commit? If not, then who should be held liable for their conduct? In anticipation of these questions, certain countries have initiated the process of drafting and proposing legislation regarding robots and other types of artificial intelligence. It is likely advantageous for other countries to follow this lead because artificial intelligence, specifically robots, will be intertwined with humanity in the near future.

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February 7 / Article, Patent

The Role of Patents in the Fight Against Superbugs: Are Patent Laws Discouraging Investment in Promising Superbug Treatments?

Abstract: Pharmaceutical companies invest significant resources in identifying and developing treatments for a variety of infectious diseases, including the current worldwide threat of superbugs. It is essential that these companies commercialize these treatments and recoup their investments. Therefore, as a policy matter, it is important to incentivize pharmaceutical companies to reap these financial rewards in order to motivate innovation and research. Patents provide an incentive—a twenty-year term of marketing exclusivity. However, as a result of the Mayo/Alice eligibility criteria that distinguish patent-ineligible laws of nature, natural phenomena, and abstract ideas from patentable inventions, the United States Patent and Trademark Office is likely to reject patents for many superbug treatments, such as antibiotics found in nature. Consequently, other methods of incentivizing the development of superbug treatments, such as delinkage mechanisms, may be necessary.

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February 7 / Blogs, Patent

The Biologics Price Competition and Innovation Act: Commercial Marketing in the Spotlight

Abstract: The Biologics Price Competition and Innovation Act (BPCIA) was enacted by Congress in 2010 as part of the Affordable Care Act. The BPCIA was intended to help innovators and pharmaceutical drug developers by streamlining the regulation of biologics, much as the Hatch-Waxman Act of 1984 did with respect to small molecule generic drugs. Unlike the Hatch-Waxman Act however, which only covered small molecule generic drugs, the BPCIA regulates large molecule drugs with “no clinically meaningful difference” to the reference product. Biologics, under the BPCIA, are complex molecules such as viruses or therapeutic serums produced for the purpose of preventing, treating, or curing human diseases or conditions. In enacting the BPCIA, Congress sought to facilitate the development and marketing of biosimilars and increase competition amongst drug developers as well as provide a specific process for potential patent infringement claims. Biosimilars are biologics that are “highly similar” to a reference product with no clinically meaningful difference between the biosimilar and the reference product in terms of “safety, purity, and potency of the product.” Recognizing biosimilars as a separate class of products allows drug development companies to produce a drug that is clinically equivalent to a drug already patented and on the market, thus spurring innovation and competition between drug developers and pharmaceutical companies. Because the biosimilar has a reference drug, under the BPCIA, the developer of the biosimilar is able to use clinical data already collected for the reference drug and apply that data for approval from the FDA for their biosimilar. Since the biosimilar developer, referred to as a subsection (k) applicant in 42 USC § 262, does not have to compile its own clinical data regarding the safety, purity, and potency of its drug, the path towards FDA approval is consequently faster, more certain, and less expensive. However, as a result of this streamlined process, the BPCIA also raises issues involving patent infringement and patent litigation, as several cases have been filed primarily concerning the interpretation of the BPCIA and its specific biosimilar approval process requirements.

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February 7 / Blogs, Computing, Other Intellectual Property, Technology

Selfies in Court: Snapchat as Admissible Evidence

Abstract: Social media is now a widely accepted and important medium of evidence in court. Yet Snapchat, a new and popular image messaging app among the youngest generation of smartphone users threatens to upend the field of social media evidence. Snapchat is unique among social media platforms because it functions to avoid permanence. Such is the appeal to today’s teenagers: a normal “snap” (a picture or video captured through the app) can only be viewed for a maximum of ten seconds before it deletes. Users may also choose to upload a snap to their “Story,” which posts the picture or video for all their contacts to view multiple times within a twenty-four hour period. The deleting function unique to Snapchat presents inherent difficulty in saving images taken through the app. In fact, recipients of snaps are left with only one method of saving the images they see: the “screenshot.” A screenshot is a smartphone function not related to Snapchat which captures what the viewer sees on their phone screen at that moment and can be saved. While it has been these screenshots which have allowed Snapchat to enter the world of admissible evidence, it is now use of the app itself as evidence which have signaled courts’ acceptance of Snapchat and its greater value to justice in the near future.

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February 6 / Blogs, Copyright, Other Intellectual Property

The Long Arm of the National Football League: Is The NFL’s Copyright Policy Violating the Rights of Its Fans and Franchises?

Abstract: As the highest grossing sports league in the world, the National Football League (NFL) operates with expansive and unprecedented reach. Each Super Bowl broadcast from 2010 to 2016 ranks as one of the seven most viewed programs in American television history and Sunday Night Football was the most watched weekly program in four of the past five years. Unsurprisingly, the NFL is intent on protecting their immensely popular product through aggressive intellectual property protections, though few are as pervasive as the telecast warning that accompanies every NFL game: “This telecast is copyrighted by NFL Productions for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited.” Does the NFL’s copyright warning truly preclude fans from talking about a game with coworkers or from posting about it on their social media pages? How far does it extend? Given recent coverage by outlets such as ESPN in October 2016, there are indications that the NFL’s aggressive copyright tactics extend to its franchise teams as well. According to sourced league memoranda, the NFL has prohibited its Member Clubs from shooting or streaming video inside the stadium during a game and posting it on any form of social media, punishable by an initial fine of $25,000 and up to $100,000 for additional offenses.6 Further, teams are prohibited from taking video from broadcasts and creating their own highlights or moving images, including Graphics Interchange Format images (popularly known as GIFs). Essentially, the NFL has severely limited a Member Club’s ability to use media content its organization had an essential role in creating and, debatably, authoring.

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