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Madeline Bugh

While most art can be protected by copyright laws, if a “new” piece of art is too similar to an original piece, then it cannot be protected. The work of art, at the very least, must be “a new and original expression of some previous work.” Davidson v. United States, No. 13-942C, 2018 Fed. Cl. WL 3213604, at *10 (Fed. Cl. Jun. 29, 2018). For instance, there lies a thin line between creating a new embodiment of artistic expression of the Statue of Liberty, and a mere replica. However, this begs the question of where exactly lays the line that separates a mere replica and a new interpretation of art?

Fortunately for us, that fine line may have gotten just a bit clearer after the United States Court of Federal Claims issued a $3.5 Million judgment in favor of an artist who created his own interpretation of the Statue of Liberty. Davidson, 2018 Fed. Cl. at *1. Mistaking it for the iconic Statue of Liberty, the United States Postal Service (USPS) created a stamp from an image of the face of Robert Davidson’s statue, which stands outside of the New York - New York Hotel & Casino in Las Vegas. Id.

The question for the court was whether Davidson’s statue constituted a new artistic expression of the Statue of Liberty, so as to be protected by copyright law, or whether it is merely a replica. Id. The answer to that question determined whether Davidson was eligible for copyright damages resulting from the USPS’s unauthorized use of Davidson’s art on the stamp. For Davidson to receive damages, his statue had to be considered an artistic interpretation of the Statue of Liberty, and not just a replica. Id. at *10; however, if Davidson’s statue was only a replica of the Statue of Liberty, and therefore not protectable by copyright law, then the USPS could not infringe. Id.  

The Supreme Court’s standard for proving an artistic work to be original is that “even a slight amount [of creativity] will suffice.” Id. Thus, in determining whether the USPS violated copyright protection of Davidson’s statue, the Federal Claims Court evaluated the culmination of differences between facial features of the original Statue of Liberty and Davidson’s re-creation. Id. at *11. Finding that Davidson’s statue “evokes a softer and more feminine appeal,” the court ruled that these differences were significant enough to validate Davidson’s copyright protection and make the USPS liable for infringement. Id.

It appears that through this decision the Federal Claims Court has helped to define, just a little bit more, the defining line between what may and may not be protected by copyright law. While that line may still be fairly murky, it is indeed an important one to distinguish properly. If you need help navigating those murky lines, consult your friendly Patent, Trademark, and Copyright attorneys at Dunlap Codding. We will be happy to help. 

Davidson v. United States: https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2013cv0942-136-0

Stamp Image (cropped and edited) from: http://fortune.com/tag/usps-2/

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Genni Ellis

I was recently contacted by Law360 to comment on the first-ever instituted derivation proceeding at the USPTO Patent Trial and Appeal Board (Andersen Corp. v. GED Integrated Solutions Inc., case number DER2017-00007). It took five years for the PTAB to institute the first one—the review of a window patent challenged by Andersen Corp. The case illustrates what it takes to successfully petition for a derivation; however, the facts of the case were perfectly teed up for the statute. So we remain unclear on the true breadth of circumstances which could lead to an instituted derivation proceeding. Here is a link to the Law360 article. For more information about derivation proceedings, see my earlier post here.

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Grant T. Gille

Over the past few years, the United States Patent and Trademark Office Patent Trial and Appeal Board (PTAB) has implemented the use of expanded panels in a number of cases, causing many to question the method of selection and objective of these panels. Critics have accused the USPTO of “panel stacking,” that is, hand selecting certain Administrative Patent Judges for expanded panels to ensure the final decision is aligned with the Director’s intentions.

Perhaps in response to this criticism, the Chief Judge of the Patent Trial and Appeal Board, David Ruschke, addressed the purpose and application of expanded panels during recent Patent Public Advisory Committee meetings. He highlighted that the Chief Judge has the discretion to expand a panel when deemed necessary with respect to four specific reasons detailed in the PTAB Standard Operating Procedure 1 (SOP1). Judge Ruschke noted that the first two reasons provided were of particular importance. These reasons relate to cases involving an issue of exceptional importance, or cases where an expanded panel is necessary in order to maintain uniformity of Board decisions. In a possible attempt to ease concerns and promote transparency regarding the intent of the expanded panel, the Chief Judge said they are now providing the reason for the expansion of the panel in the opinion.

The Chief Judge also demonstrated an adherence to the SOP’s guidelines by approving an expansion in ony four cases for fiscal year 2017. The low number of cases approved for expansion follows the intent of the SOP to minimize the use of expanded panels, and closer inspection of the particular cases also reveals that the stated reasons appear to be in line with the purposes for which expansions were intended. In each of these four cases, a unanimous three-panel decision resulted in a unanimous five or seven-panel decision. These results support the Chief Judge’s contention that expanded panels are being used to emphasize the importance of the case or to show where the jurisprudence is going.

The Chief Judge further implied that “panel stacking” has not been the intended use of expanded panels by emphasizing that the underlying result has only changed in two lines of cases. However, in 2015 an attorney for the USPTO made an admission during oral arguments in Yissum Research Development Co. v. Sony Corp. that acknowledged the practice of panel stacking was used, as well as expressing the belief it was legally permitted under the holding of In re Alappat. More recently, during oral arguments for Oil States Energy Service, LLC, v. Greene’s Energy Group, LLC, et al. when Chief Justice Roberts asked whether “panel stacking” comported with due process, the Deputy Solicitor General, Malcolm L. Stewart, stated that panels had been expanded in only three occasions and that he did not think it was illegal.  Many were upset that the Federal Circuit did not provide a substantive opinion regarding the practice of “panel stacking” in the Yissum case due to a Rule 36 affirmance; perhaps the Oil States opinion from the Supreme Court will offer more clarity.

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Ann Robl

Recently, the USPTO published their statistics for ex parte appeals, which were discussed during the February 1st Patent Public Advisory Committee (PPAC) quarterly meeting. The average time it takes for the Patent Trial and Appeal Board to issue a decision for an ex parte appeal continues to decrease. This is good news for patent applicants, who in past years had to wait two to three years for a decision. The current average of approximately fifteen and a half months, though still long, will help make timing less of a consideration in deciding whether or not to appeal examiner rejections. 

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Ann Robl

On Tuesday, January 16, 2018, the newest round of USPTO fee changes goes into effect from the final rule published in the Federal Register back in November. The USPTO has published a table that makes it easy to see the changes to fees. Notably, nonprovisional patent application filing-search-examination fees go up a total of $120, excess claim fees increase $20 for each claim in excess of 20 and $40 for each independent claim in excess of 3, design patent application examination fees are going up by $140, the design patent issue fee increases by $140, forwarding a Notice of Appeal increases by $240, a first request for continued examination increases by $100, a subsequent request for continued examination increases by $200, and the inter partes review request fee goes up $6,500 (all costs for large entities). 

For more information, see the USPTO webpage for Fee Setting and Adjusting.

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