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Ingenuity Update Blog

Supreme Court Finds Copyright Protection in Cheerleader Uniform

By Bejamin Grohmann - On March 22, 2017, the U.S. Supreme Court reached a decision in the case of Star Athletica, LLC v. Varsity Brands, Inc., in which the Court held that artistic designs incorporated into cheerleading uniforms are eligible for copyright protection. Prior to this decision, artistic elements of clothing items were typically not copyrightable under the “useful article” doctrine, because they were not considered sufficiently separable from the functional clothing items to which they were attached.

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Supreme Court Strikes Down Laches as a Viable Defense to Patent Infringement

By Chris Dawson

In a 7-1 opinion authored by Justice Alito, the U.S. Supreme Court held today in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, No. 15-927, that laches is no longer a viable defense to patent infringement. SCA accused First Quality of infringing its patent directed to adult incontinence products, and, as expressly permitted under 35 U.S.C. § 286, sued for six years’ worth of damages. First Quality countered that that action was barred by the equitable doctrine of laches because SCA knew of First Quality’s alleged infringement in 2003, yet waited until 2010 to bring suit.

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Re-Register Your DMCA Agent in 2017 to Stay in the “Safe Harbor”

By Dianne M. Smith-Mismer

Internet service providers (ISPs) rely on the Digital Millennium Copyright Act’s (“DMCA”) to shield themselves from liability for infringing content posted on the websites that they host.  The DMCA’s “safe harbor” provision allows ISPs to provide interactive websites where users can exchange content, ideas and images without the risk of being liable for copyright infringement.  But to take advantage of the safe harbor provision, ISPs must register their DMCA agent with the U.S. Copyright Office and comply with other basic requirements. 

ISPs who have previously registered their DMCA agent as of December 16, 2016 must re­-register by December 31, 2017.   Though there have been no substantive changes to the safe harbor provision, ISPs must now register their agents in the new electronic DMCA Designated Agent Directory. The online process is quick, easy and costs just $6. 

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Sovereign Immunity and Patent Challenges

By Crissa Cook

The USPTO’s Patent Trial & Appeal Board (PTAB) recently dismissed a petition for Inter Partes Review (IPR) challenging the validity of a patent owned by the University of Florida Research Foundation on unusual grounds.  In a detailed decision, the PTAB ruled that the Research Foundation—a Florida state institution—had not waived its sovereign immunity under the Eleventh Amendment. 

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U.S. Supreme Court to Decide Free Speech Issue in THE SLANTS Trademark Case

By Dianne Smith-Misemer, with contributions by Aaron Vanderpool and Crissa Cook

It isn’t very often that trademark cases make their way to the United States Supreme Court (SCOTUS). But yesterday, SCOTUS heard arguments in Lee v. Tam, a high-profile case that will decide whether the First Amendment overrides the ban on federally registering offensive or disparaging trademarks.  The case was brought by an Asian-American rock band that was denied trademark registration for its band name, "The Slants."  At issue is the constitutionality of Section 2a of the Lanham Act’s prohibition against immoral, deceptive, and scandalous marks.  The United States Patent & Trademark Office (USPTO) relies on Section 2a to refuse federal registration of marks that it deems to be offensive or disparaging.  

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