By: Sloane Kyrazis
In TCL Comm’n Tech. Holdings v. Telefonaktiebolaget LM Ericsson, 943 F.3d 1360 (Fed. Cir. 2019) (“Ericsson”), the Federal Circuit held that Ericsson’s Seventh Amendment rights guaranteed a jury trial in its suit against TCL involving the royalty dispute between the two parties related to the fair, reasonable, and non-discriminatory (“FRAND”) licensing of Ericsson’s patent portfolio. The case was closely watched because many thought it was finally the time when the Federal Circuit, and possibly the Supreme Court, would provide some guidance over what constitutes a FRAND licensing scheme for standard essential patents. Instead of providing much needed guidance, the Federal Circuit reversed the district court decision below, holding that the district judge’s announcement of a FRAND royalty in a bench trial violated Ericsson’s Seventh Amendment right to a jury trial. The Supreme Court denied certiorari on appeal. This blog post discusses why such a denial was well-founded.
By: Jake Knanishu
Advances in advertising delivery and targeting technology pose a new, unique, and rapidly developing threat to individual privacy. Now, you can safely assume any advertisement you see on television or on a webpage has in some way been targeted at you—and so can anyone else who happens to see the ad. The finer points of this interaction among an advertiser, you, and a secondary audience prevent this invasion of privacy from being actionable under traditional common-law theories. The novelty, scope, and probabilistic nature of the harm suggest that regulation should be handled by an administrative agency, but which one? And how? Although not quite an “unfair or deceptive act or practice” in the familiar sense, this seems to be a modern twist on exactly the kind of thing the FTC was commissioned to police. Regardless of whose responsibility it becomes, something must be done before this practice gets too far out of hand.
By: Kristen Van Dyke
Halloween stores sell costumes that clearly mimic the appearance of well-known fictional characters. Profiting from consumers’ association of these costumes with the fictional characters they resemble potentially infringes trademark rights. So why haven’t these Halloween stores been sued yet? This blog explores how the uncertainty of fictional character trademark law and additional non-legal considerations may be tipping the scales away from litigation.
By: Taylor Pernini
The Supreme Court recently received a petition for a writ of cert from the Moodsters Company, which sued Disney for copyright infringement over the emotional characters from the movie “Inside Out”. The Supreme Court has never ruled on character copyright, making the jurisprudence a mess of conflicting circuit tests. The Moodsters lost at the Ninth Circuit under the stringent Towle test and now allege that none of the current circuit tests fit the key purposes of copyright. They might be right—the Supreme Court’s focus should be on uniqueness and originality—but it is still unlikely that they win under that standard. This blog will address the differing circuit tests, why each one suffers weaknesses in copyright law, and what the appropriate standard should be going forward.
By: Abbey Duhé
Cloud computing, whether that refers to data storage or service models like Software as a Service (SaaS) offers businesses an attractive cost-saving opportunity but leaves users at risk of losing valuable trade secrets. This blog post argues that the current avenues for legal recourse, though bountiful, are not enough to actually protect the value of these assets. The cloud computing industry imposes expanding demands on the reasonableness requirements to keep trade secret information confidential, but merely provides as a default the opportunity to litigate once the trade secret has already been lost. Solutions for companies may include keeping trade secret information out of the cloud altogether, but also more formalized standards to adapt to growing cybersecurity concerns.