By: Ian Kecskes
Patent holders have the right to exclude others from their patented technology, including the U.S. government. Patent holders are given a cause of action against infringers; 28 U.S.C. § 1498 gives patent holders a cause of action against the government. § 1498 entitles the patent holder to the costs of the infringement and, if the government is not substantially justified, the costs of litigation. Recently, in Hitkansut LLC v. United States, the United States Federal Claims Court held that, when evaluating whether the government was substantially justified, the court can evaluate the prelitigation conduct, including the nature of the infringement itself. This blog will examine the underlying yet significant ramifications of this decision. Because of the incredibly high costs of patent litigation, the government can easily abuse this system. Patent holders will be more reluctant to bring a claim and risk spending significantly more on litigation costs than what the patent is worth. Ultimately though, since there has not been a significant change in government infringement since § 1498 was expanded, it is unclear how significant of an impact Hitkansut will have.
By: Lillian Fant
In Romag Fasteners, Inc. v. Fossil, Inc., the Supreme Court held that there is no requirement of showing willful infringement for a plaintiff to be awarded with profits as damages for a violation of 15 U.S.C. § 1117 (a) or (b). The Court reasoned that because Congress specifically stated that there is a willfulness requirement for a violation of section 1117(c), this meant that the willfulness was intentionally left off of the other provisions. In light of the Romag decision, the four-way circuit split on nominative fair use should be reconciled with this reasoning. Thus, this blog post argues that the proper approach to nominative fair use is that of the Second Circuit in International Information Systems Security Certification Consortium, Inc. v. Security University, LLC.
By: Lawson Turner
Following the Supreme Court’s decision in Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S.Ct. 1002 (2017), this blog argues that the aesthetic aspects of some camouflage patterns, regardless of use, should be copyrightable.
Reed Turry, Certified Information Privacy Professional/United States and former Senior Online Editor of the Journal of Intellectual Property law, shares his insight into several of the major privacy and cybersecurity risks that consumers should be aware of when participating in COVID-19 public health measures.
By: Ben Peeler
In light of vaccine development following the outbreak of COVID-19, this blog discusses the several attempts that have been made by foreign nations to steal vaccine research and the manner in which the international community should deal with COVID-19 vaccine research theft.