USA, Fitzpatrick, Cella, Harper & Scinto updates

Intellectual Property

Contributed by Fitzpatrick, Cella, Harper & Scinto
Second Circuit rejects fair-use defence for online service allowing users to watch Fox News content
  • USA
  • March 26 2018

The US Court of Appeals for the Second Circuit recently held that certain aspects of TVEyes's service – which allows users to watch video clips of programmes on Fox News and other channels – are not protected by the copyright fair-use doctrine under 17 USC Section 107. The Second Circuit addressed each of the four statutory fair-use factors and reversed the district court's determination that TVEyes's watch function constituted fair use.

Federal Circuit identifies circumstances militating against early or summary Section 101 determinations
  • USA
  • March 19 2018

A number of district court decisions have held patent claims to be ineligible under Section 101 during motions brought at the start of litigation or on motions for summary judgment. However, two recent Federal Circuit decisions indicate that factual disputes over aspects of the two-step test for assessing patent eligibility established by the Supreme Court, including the tangibility of claims, may hinder such early or summary Section 101 determinations.

'Repeat infringers' under Digital Millennium Copyright Act not repeat infringers as adjudged by court
  • USA
  • February 26 2018

In a recent case, the US Court of Appeals for the Fourth Circuit held that an internet service provider (ISP) was not entitled to the safe harbour of 17 USC Section 512(a) of the Digital Millennium Copyright Act. In so holding, the Fourth Circuit rejected the ISP's argument that the safe harbour requires that an ISP take action only against subscribers who are adjudged in court to be 'repeat infringers'.

Federal Circuit clarifies that wilful infringement must be decided by jury
  • USA
  • February 05 2018

The Federal Circuit recently handed down a decision in which it clarified that wilful infringement is an issue to be decided by a jury, rather than a district court. It held that the district court had erred in excluding as unreasonable prior art evidence concerning the defendant's litigation defences, because that evidence may also have been relevant to its subjective intent or knowledge at the time of the alleged infringement.

Federal Circuit holds that time bar determinations for inter partes reviews may be appealed
  • USA
  • January 22 2018

The US Court of Appeals for the Federal Circuit sitting en banc recently issued a majority opinion holding that a determination made by the Patent and Trademark Office concerning whether a petition for an inter partes review is time barred is subject to judicial review. Specifically, the majority held that the limit on judicial review pertaining to institution decisions does not apply to time bar determinations under 35 USC Section 315(b).


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