What's Changing in IP Law?

The rapid rise of emerging technology, ever-increasing global connectedness, and the constant series of disruptive developments to existing industries, have all had profound effects on the field of law.

The effects of the last five years are particularly visible in Intellectual Property Law.

Types of Intellectual Property Protection

The types of intellectual property protection covered by the field of IP Law are patents, trademarks, copyrights, and trade secrets.

Patents grant the owner an exclusive right, or monopoly, for a limited time on the claimed subject matter disclosed in the issued patent. They are a powerful form of intellectual property protection. A significant distinction for patents compared to other types of intellectual property protection is that the published patent documentation must enable someone of ordinary skill in the art to make and use the invention.

A trademark is a word, name, logo, symbol, device, or combination thereof, used to identify the source of goods or services in the marketplace. Trademarks allow prospective customers to weigh the reputation of the manufacturer of the goods or provider of the services.

A copyright provides the copyright author with the exclusive right to reproduce and distribute copies, prepare derivative works, as well as perform or display the work publicly. The author does not need to register the work in order to have the copyright, but the author must register the copyright to sue another party for infringement.

A trade secret is any valuable information that is not publicly known and of which the owner has taken reasonable steps to maintain secrecy. These include information such as a business plans, customer lists, ideas related to research and development, specific methodology utilized, etc.

Biggest Shifts in Each Category of IP Protection

  1. Patents

Patent Law experienced a paradigm shift in 2013 with the case Oil States Energy Services LLC v. Greene’s Energy Group, LLC. In this case, the Supreme Court confirmed that the Patent Trial and Appeal Board, the Patent and Trademark Office’s internal review process, is a valid venue to strike down patents.

JD Houvener, CEO and Founder of Bold Patents says that, “The PTAB is a special Article 3, Section 2 court that solely consists of patent judges. It is a specialized forum that grants patent holders a venue where they can obtain a predictable and efficient hearing on the merits of their cases in front of experienced patent judges. It is an incredible shift for Patent Law going forward to be able to use this forum to both invalidate and validate patents.”

If a patent holder feels as though their patent is at risk due to a similar new invention or due to evolving technology, he or she can take their patent to the PTAB for a reexamination proceeding, an inter partes review (IPR), or one of several other post-grant actions.

This is an incredible new right that will remove several layers of frustration that previously existed for US patent holders.

  1. Trademarks

Trademark has evolved towards a trend of greater international enforcement.

For example, China has taken a strong stance against its own citizens who infringe on international goods. Today, their stance is that they will enforce against trademark infringement, even for US-owned rights that are being infringed on in China.

In February 2018, Under Armour won a landmark case in China against a Chinese trademark infringer. The People’s Higher Court of China ruled in favor of Under Armour, finding that the copycat’s actions constituted trademark infringement and unfair competition, and awarded Under Armour approximately US $300,000. This is a strong example of a positive trend of leadership in the international community towards greater enforcement, which is notoriously difficult as there is no universal trademark system.

Overall, as the global economy has become even more interconnected over the past five years, trademark law has began to come up to speed.

  1. Copyrights

Copyright law has started to evolve in line with the pace of artificial intelligence technology. These changes are most notable in the arts.

There has been a steady rise in music infringement cases. For example, Bruno Mars has faced several instances of copyright scrutiny over his hit song ‘Uptown Funk.’ in 2017, The rap group ‘The Sequence’ sued Bruno Mars, claiming that "Uptown Funk," violates the copyright of the their 1979 single, "Funk You Up." Then, in 2018, the band ‘Zapp’ sued Bruno Mars, claiming that Uptown Funk infringed the copyright to their 1980 hit song "Mo Bounce to the Ounce.”

To prevail on a music copyright infringement claim, a plaintiff must show that the defendant had access to the plaintiff's song and that the two songs have substantial similarity. This substantial similarity test has become much more efficient to prove with the rise of AI technology.

AI technology allows for the automation of flagging, monitoring, and testing electronic records to test substantial similarity and determine whether music is being infringed upon. This software makes it much easier for music that was recorded decades ago to come up in similarity tests, streamlining the process all digitized musical records against one another.

In addition, AI software has made it much easier to track activity revolving around illegal downloads for not only music, but also for movies, TV shows, and images. This software has streamlined the process of seeing where people are are using bit torrents, pirating, and streaming illegally. Software can now track bits as they move around, using blockchain or hash identifiers, which will move towards a trend of greater enforcement against copyright infrimgement.

  1. Trade Secrets

In 2016, Congress passed the Defend Trade Secrets Act, which created a federal cause of action for trade secret misappropriation. Prior to the Act, the owner of a trade secret seeking to file a claim for misappropriation could only go to State Court. This was inefficient and effectively gave plaintiffs a ‘venue shopping’ issue- in which they had to track down defendants, get jurisdiction over them, serve them with process, get discovery, and then potentially get it moved to a more suitable venue.

The Act streamlined the process and created greater efficiency to keep up with rapid technological changes that threaten intellectual property safety.  Federalizing trade secret law was a way for Congress to codify greater predictability in an area of law that was previously subject to the patchwork law of 50 states.

Moreover, this new federal right of action follows the increasing trend of American companies creating enhanced shareholder value through the protection of their intellectual property with a combination of patent infringement and trade secret misappropriation actions.

Shifts for IP Attorneys

Finally, the last major shift in the last five years is seen in how IP attorneys operate.

According to the American Bar Association, the most prosperous attorneys in 2020 will be those who successfully adjust their business models to use artificial intelligence tools, while at the same time promoting and delivering the valuable legal services that machines are unable to provide.

The past five years have seen technology transform the legal profession. IP attorneys now face greater transparency in their work, see escalating demands of their time, and feel heightened expectations from internal business units or clients.

However, looking forward, IP attorneys have the unique potential to bridge the gap between the technological revolution and the (often seen as antiquated) legal industry.

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