The United States Patent and Trademark Office (USPTO) has proposed significant changes to patent fee structures for the 2025 fiscal year. These proposed changes mark a pivotal shift in the Office’s financial approach toward patent filings. 

The proposed fee changes are available here.

These adjustments stand out not just for their size but for the profound implications they may have on how applicants navigate the patent process. 

A key highlight from the proposed changes is the new fee regime for continuation applications. Specifically, surcharges will be applied based on an amount of time since the earliest priority date. For example, applicants will face a surcharge of $2,200 for filings that occur more than five years after the earliest priority date, escalating to $3,500 for those submitted beyond eight years.

The fee increases also extend to Request for Continued Examination (RCE) filings, with the USPTO proposing raises between 25% and 80% for second and subsequent RCEs, promoting more efficient application processes.

Other fee changes include:

  • Increasing Design Application fees to account for inflationary cost increases;
  • Increasing excess claim fees, urging applicants to present more succinct and focused patent applications;
  • Reducing extension of time (EOT) fees for provisional applications;
  • A tiered structure for Information Disclosure Statements (IDS) based on the number of references cited.  For example, fees will be $200 for more than 50 references, $500 for over 100, and $800 for beyond 200 references;
  • A 25% fee increase for inter partes review (IPR) and post-grant review (PGR) proceedings to cover the expenses of these processes; and
  • A $500 fee for participation in AFCP 2.0 (there is currently no fee for participation in this program).

These proposed changes are a strategic tool to influence patent filing practices. The new fee schedule is expected to be implemented at the start of fiscal year 2025, on October 1, 2024.

Feedback on these proposals is open until June 3, 2024, and must be submitted via the Federal eRulemaking Portal.

Keep an eye on this space for further updates on these significant changes in the patent filing arena. In view of the proposed changes, applicants should consider recalibrating their filing and prosecution strategies. This may include expediting continuation applications, accepting allowable subject matter promptly, and narrowing claims to adapt to the evolving fiscal environment.

On Thursday, April 4, 2024, Seyfarth’s Los Angeles – Century City office hosted the INTA Roundtable Discussion on Cultural Competency and Working with Foreign Counsel.  Fellow trademark attorneys, IP paralegals, and law students gathered for a spirited discussion about what “cultural competence” means to them and how understanding and respecting different customs, cultures, and even ethical considerations can make for lasting business relationships and friendships.  Ken Wilton and Amy Abeloff, who hosted the event, would like to thank all who attended and participated in the Roundtable, and look forward to hosting future Roundtables.

A whole host of creators have filed suit in the U.S. alleging that AI companies improperly used the creators’ content to train AI programs (if you need to catch up on these lawsuits, we recommend our video blog here).  In most cases, the creators don’t know for sure whether the AI companies copied their works, although they allege that copying can be inferred based on the AI programs’ outputs.  But a new law in the EU may soon provide creators with a mechanism to find out if their works have been copied, and may provide those creators with greater protections than those afforded to creators in the U.S.

On March 13, 2024, the European Parliament approved the Artificial Intelligence Act, known as the AI Act.  Formal adoption of the AI Act is expected in early Summer 2024, with implementation spearheaded by the newly-formed European AI Office.  The AI Act is the one of the first major legislative frameworks in the world to emerge in response to the spread and seeming ubiquity of the relatively new generative AI technologies. The Act aims to ensure safety and compliance with certain individual and property rights, including IP rights.

The AI Act will regulate AI programs based on the level of risk they present.  Generative AI programs that are capable of generating text, images, and other content, and may perform any number of functions with general or specific purposes, are classified as “high risk.”  The AI Act refers to these programs as “General Purpose AI” or GPAI.  The AI Act places the most stringent obligations on developers and deployers of high-risk AI systems that are put to use in the EU, even if the developer or deployer is not actually based in the EU.  This partly because the EU believes that application to non-EU companies whose programs will be used in the EU is “necessary to ensure a level playing field among providers of [GPAI] models where no provider should be able to gain a competitive advantage in the EU market by applying lower copyright standards than those provided in the [EU].”   

Under the AI Act, GPAI model providers must:

  1. provide technical documentation, including training, testing processes, and results of evaluations;
  2. provide information and documentation to supply to end providers that intend to integrate the GPAI model into their own AI system so that the latter understands the capabilities and limitations thereto and is able to comply with the AI Act’s requirements;
  3. establish a policy to abide by the EU Copyright Directive; and
  4. publish a detailed summary about the content used for training the GPAI model.

One goal of these provisions to ensure that AI developers are disclosing whether the used material subject to copyright protection to train their AI programs.  There are some exceptions, however, including for “open license” AI models, which only have to provide disclosures if their AI programs present a “systemic risk.”

For those companies required to make disclosures, they must prepare sufficiently technical summaries to encourage IP rightsholders or others with legitimate interests to exercise and enforce their rights in the EU.  The EU AI Office will not be conducting a “work-by-work” assessment to ensure that GPAI providers are abiding by copyright laws.  Instead, the Office has passed the onus on to GPAI providers to satisfactorily educate rightsholders about their enforcement rights and responsibilities vis-à-vis the use and incorporation of their content by GPAI.

Companies must also “establish a policy to abide by the EU Copyright Directive,” that “requires the authorization of the rightholder concerned” before using any copyright protected content “unless relevant copyright exceptions and limitations apply.” The Directive does have some exceptions to this requirement, such as allowing reproductions of works for the purposes of text and data mining in certain limited scenarios.  Unless that text/data mining is for scientific purposes, however, the rightsholder can opt out. 

If a rightsholder opts out, then under the terms of the Copyright Directive and the AI Act, companies must “identify and respect the reservations of rights expressed by rightsholders pursuant to Article 4(3) of Directive (EU) 2019/790.”  Accordingly, GPAI providers would have to obtain special permission from the rightsholder that opted out in order to proceed with text/data mining activities that would access or utilize their protected content.

The AI Act includes a carve-out for small GPAI providers, such as start-ups, to promote innovation even for those with fewer resources than large corporations.  The carve-out provides “simplified ways” for smaller providers to comply with the AI Act.  The idea is that compliance with the AI Act should not “represent an excessive cost” or “discourage the use of [GPAI] models.”

It remains to be seen what will happen once the AI Act is officially enacted, but we expect an uptick in copyright litigation and related counseling (as well as costs) in the EU brought by copyright owners and other rightsholders.  We also expect that the number of potential stakeholders will increase by virtue of the ubiquity of GPAI and the ease and accessibility of content via the Internet and connected devices.  With this may come niche legal practices and novel legal issues, which will likely result in changes to the AI Act or its interpretation.  It will be crucial for owners of IP and AI companies to understand their respective rights and obligations under the AI Act; otherwise, IP holders risk unfettered and unauthorized use of their creative content, while AI companies run the risk of being sued.

Tennessee has joined the ranks of states regulating, in various ways, the use of artificial intelligence to manipulate an individual’s likeness.  On March 21, 2024, Gov. Bill Lee said “thank you very much” to the Tennessee legislature and signed into law the Ensuring Likeness, Voice, and Image Security (“ELVIS”) Act of 2024, HB 2091/SB 2096, which updates Tennessee’s right of publicity statute.  The new law is groundbreaking because Tennessee has gone beyond other states that regulate AI-generated, sexually explicit “deepfakes.”  The ELVIS Act represents the broadest prohibition yet on the unauthorized use of an individual’s voice or likeness. 

The right of publicity (sometimes called the right of personality) is a patchwork framework of laws that differ from state to state, built out of both statutes and common law.  The general purpose of such laws is to prevent the unauthorized commercial exploitation of a person’s likeness.  Many states, including Tennessee, extend protection to the deceased (which, in the case of Tennessee, was motivated largely by the iconic Memphis resident whose name is reflected in the law’s title, Elvis Presley). 

Prior to the ELVIS Act, Tennessee’s right of publicity law broadly held that “[e]very individual has a property right in the use of that person’s name, photograph, or likeness in any medium in any manner.”  Tenn. Code Ann. § 47-25-1103 (2021).  The ELVIS Act adds “voice” to the list of protected items.  HB 2091/SB 2096 § 4.  The Act defines “voice” as “a sound in a medium that is readily identifiable and attributable to a particular individual, regardless of whether the sound contains the actual voice or a simulation of the voice of the individual.”  Id.§ 3 (emphasis added).

The Act goes further, too, in expanding the scope of what acts create liability.  Prior to the ELVIS Act, a person would be liable for unauthorized use of a likeness “for purposes of advertising products, merchandise, goods, or services, or for purposes of fund raising, solicitation of donations, purchases of products, merchandise, goods, or services…”  Tenn. Code Ann. § 47-25-1105.  But the ELVIS Act expands liability to any person who “publishes, performs, distributes, transmits, or otherwise makes available to the public an individual’s voice or likeness” without authorization, regardless of purpose, and to any person who “distributes, transmits, or otherwise makes available an algorithm, software, tool, or other technology, service, or device” to produce a person’s voice or likeness without authorization.  HB 2091/SB 2096 § 6.  Although Tennessee’s law has an exemption for “fair use,” the ELVIS Act clarifies that the exemption only applies “to the extent such use is protected by the First Amendment.”  Id. § 10.

The bill passed unanimously and the ELVIS Act becomes effective as of July 1, 2024.

Publicity rights are often a minefield for brands and advertisers.  Changes in technology, including the ability of AI to manipulate and mimic the images and voices of public figures, have accelerated concerns about the unauthorized exploitation of likeness rights, including AI generated images and videos appearing in advertisements or AI generated “deepfake” music.  We may see more bills like the ELVIS Act in the future to ensure that there is no need for suspicious minds when encountering a person’s likeness.

On Thursday, April 4, 2024 from 11:30 a.m. to 1:30 p.m. Pacific, Seyfarth’s Los Angeles – Century City office will host the INTA Roundtable Discussion on Cultural Competency and Working with Foreign Counsel. This roundtable offers a unique opportunity to engage with seasoned experts, share insights, and explore best practices for fostering productive relationships with foreign counsel. Join us as we explore strategies to enhance cultural competency and optimize collaboration to achieve favorable outcomes in trademark cases spanning across borders. Lunch will be provided and the event is free for INTA members. Your expertise and perspectives will undoubtedly enrich our dialogue, making this event invaluable for all participants.

For more information and to register, click this link.

On March 4, the Federal Circuit, heard oral arguments for Celanese Int’l. v ITC, 22-1827 (Fed. Cir. 2024), a case that may reshape the dynamics between trade secrets and patent rights.

The Core Issue at Hand

This case centers around the America Invents Act (AIA) and whether a product’s prior sale by the patent applicant can disqualify the patenting of the method used to produce said product.

Case Background

Celanese perfected a novel method for producing acesulfame potassium (Ace-K), a synthetic sweetener. Opting to keep this process confidential, Celanese sold Ace-K for several years. Plot twist! They then filed for a patent more than a year after Ace-K hit the market.

Here’s where the story gets sweeter! Anhui Jinhe, a rival company, began importing Ace-K into the U.S., prompting Celanese to accuse Jinhe of infringing on their patent at the International Trade Commission (ITC). Jinhe contended that Celanese’s patent claims were invalid under the AIA’s “on-sale bar” rule, arguing that Celanese had already sold Ace-K produced by the disputed process over a year prior to their patent application. The ITC sided with Jinhe, asserting that a product’s sale made through a confidential process constitutes an “on sale” event under the statute, thus nullifying subsequent patent claims for that process. Celanese challenged this decision, sparking the current appeal.

Potential Consequences of the Case

Traditionally, inventors had to choose between patenting a new process or keeping it a trade secret. The “on-sale bar” served as a mechanism to prevent inventors from benefiting commercially from a secret invention for years before seeking a patent monopoly. However, this case challenges the interpretation of what it means for an invention to be “on sale” when the process itself is not directly marketed or disclosed.

Arguments from Celanese

Celanese argues that the AIA revises the pre-AIA rule, emphasizing the “claimed invention” rather than the “invention” at large, which should prompt a reevaluation of Federal Circuit precedent. They assert that their interpretation encourages the disclosure of trade secrets without unfairly extending exclusive rights.

Counterarguments from the ITC and Jinhe

In contrast, the ITC and Jinhe argue that the AIA did not alter the definition of “on sale.” They contend that Celanese’s interpretation is overly narrow and that the established pre-AIA rule should apply, preventing patentees from extending their monopolies through delayed patent applications on previously used secret processes.

Conclusion

This case is a sweet reminder of the intricate dance between protecting innovations and promoting fair competition. For those in industries dependent on trade secrets, such as pharmaceuticals, chemicals, and semiconductors, this case is crucial to watch, signaling possible shifts in how inventions are protected in the future. We’ll post an update when the court makes its ruling. The outcome may be the key ingredient to ensuring your inventions remain sweet and secure.

Seyfarth’s Commercial Litigation practice group is pleased to present the fourth annual installment of the Commercial Litigation Outlook, which provides insights on litigation issues and trends to expect in 2024. Since its inaugural publication in 2020, Seyfarth’s Commercial Litigation Outlook has served as a beacon for legal professionals, providing invaluable insights and forecasting emerging trends. 

2024 promises to be one for the history books — a vastly more robust regulatory and litigation landscape, the rise and challenges of ESG, artificial intelligence that will touch almost every level of society, the nature of remote work and all of its risks and rewards, and the tidal wave of commercial loans coming due all present new and different challenges that commercial litigators will be expected to face head on in the coming year.

Trends covered in this edition include: Antitrust, Bankruptcy, Consumer Class Actions, Consumer Financial Services Litigation, eDiscovery & Innovation, ESG, Franchise & Distribution, Health Care Litigation, Insurance, Privacy, Real Estate Litigation, Securities Litigation, and the Trial Outlook.


Seyfarth is also excited to announce a three-part webinar series where members of our Commercial Litigation practice group will discuss the key trends outlined above. Dates and details are below.

Part 1 – Charting the Course: AI’s Influence of Legal Practice and IP Protection 

View Recording

Wednesday, March 20, 2024 at 1:00 p.m. Eastern

  • Explore the transformative impact of AI on legal practice in 2024 and beyond
  • Obtain insights into forthcoming AI regulations and their implications for businesses operating in the US and EU
  • Evaluate risk mitigation strategies to avoid potential liability when using AI platforms
  • Learn how to implement strategies for safeguarding intellectual property rights amidst advancing AI technology
  • Discuss the evolving role legal education in preparing lawyers for an AI-enabled future and the shift towards human-centered AI

Moderator:

Ken Wilton, Partner, Seyfarth Shaw

Speakers: 

Rebecca Woods, Partner, Seyfarth Shaw

Lauren Leipold, Partner, Seyfarth Shaw

Owen Wolfe, Partner, Seyfarth Shaw

Puya Partow-Navid, Partner, Seyfarth Shaw

Part 2 – Navigating Legal Minefields: Insights on Restrictive Covenants, eDiscovery, and Privacy Compliance

Thursday, April 11, 2024
1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

About the Program

The second webinar in the series will examine the regulatory landscape surrounding non-compete agreements and will also address critical aspects in the realm of eDiscovery and Privacy litigation. Specifically covering the following:

  • Federal Attempts to Curb Non-Competes: Delve into the proposed FTC rule and the NLRB’s stance, analyzing their potential impacts and the legal challenges they may face.
  • State Initiatives: Uncover the latest legislative developments from states like California, Minnesota, and New York, examining how these changes could impact employers nationwide.
  • Judicial Scrutiny and Trends: Gain insights into recent court decisions regarding non-competes and confidentiality provisions, and understand their implications for businesses.
  • Regulatory Enforcement Surrounding Privacy Laws: Learn about the rising regulatory enforcement and litigation surrounding data privacy laws, including the impact of consumer awareness and state legislation on businesses.
  • Navigating the Risks of Privacy Litigation: Discover the latest developments in privacy litigation, including the surge in lawsuits related to website beacons, biometric data, and AI processing. Gain insights on compliance frameworks and preemptive risk assessments to mitigate litigation threats.
  • Advancements and Risks in eDiscovery Tools: Learn about the latest advancements in GenAI eDiscovery tools, including document summarization, subjective coding determinations, and GenAI syntax and querying. Understand the challenges and considerations of adopting GenAI in litigation, including defensible use of technology and negotiating discovery protocols.
  • Generative AI in eDiscovery Workflows: hear about the potential of Generative AI in eDiscovery workflows to streamline your business, increase productivity, and reduce inefficiencies amidst rising regulatory enforcement and litigation surrounding data privacy laws.

Moderator:

Rebecca Woods, Partner, Seyfarth Shaw

Speakers: 

Dawn Mertineit, Partner, Seyfarth Shaw

James Yu, Senior Counsel, Seyfarth Shaw

Jason Priebe, Partner, Seyfarth Shaw

Matthew Christoff, Partner, Seyfarth Shaw

Part 3 – Commercial Litigation Outlook: Insights and Predictions for Litigation Trends in 2024

Thursday, May 2, 2024 at 1:00 p.m. Eastern

Join us to explore trends, predictions and recommendations in the following areas:

  • Antitrust
  • Consumer Class Actions
  • ESG
  • Franchise
  • Health Care
  • Securities & Fiduciary Duty

Moderator:

Shawn Wood, Partner, Seyfarth Shaw

Speakers:

Brandon Bigelow, Partner, Seyfarth Shaw

Kristine Argentine, Partner, Seyfarth Shaw

Gina Ferrari, Partner, Seyfarth Shaw

John Skelton, Partner, Seyfarth Shaw

Jesse Coleman, Partner, Seyfarth Shaw

Greg Markel, Partner, Seyfarth Shaw

This blog has been cross-posted from Seyfarth’s The Blunt Truth site.

Federal trademark registration is typically unavailable for goods and services related to the sale of cannabis.  But a combination of federal copyright registration and state trademark registration for these goods and services may provide an opportunity for cannabis companies to protect the substantial investments made in their brands and offerings.  A recent case in California, The Holding Company LLC v. Pacific West Distributors et al. 2:24-cv-00986-DDP-JDE, illustrates potential strategies surrounding intellectual property protection for those in the industry to consider.  It’s easy to imagine what may happen if a competitor began using your branding in a way that treads on your investment without legal means to stop them.  The strategies we discuss below may not be appropriate for all cases.  But cannabis companies, along with their counsel, should evaluate the potential costs and benefits of pursuing these strategies to protect their businesses. 

The Holding Company, LLC, having the appropriate abbreviation “THC,” alleges ownership of intellectual property in a “lifestyle brand” that has “gained traction with young consumers … in relation to urban music and the hemp/cannabis industry.”  Some of THC’s intellectual property include designs of the terms WHOA!, WHAM!, and POW!, in stylized lettering and coloring reminiscent of those seen in comic books (the “Copyrights”) registered with the United States Copyright Office (“Copyright Office”).  THC also owns a California state trademark registration for its WHAM! mark covering cannabis flower and concentrates.

THC uses its Copyrights and WHAM! trademark on the packaging of its cannabis products.  THC alleges that it engaged in discussions to license its Copyrights and WHAM! mark with Pacific West Distributors, a cannabis goods distributor, and Herbal Solutions, LLC, a dispensary using the name “Jokes Up Ice Kream”.  But the negotiations got gummied up and the parties were unable to reach a joint agreement.   

THC alleges that after the failed negotiations, Pacific West Distributors and Herbal Solutions began using THC’s intellectual property without authorization.  And so, to protect its intellectual property, THC filed a complaint including six claims of federal copyright infringement and one claim of California state trademark infringement in an attempt to snuff their actions.

This case is not only an example of the efforts companies are taking to enforce their intellectual property rights in the cannabis space.  It’s also illustrative of the potential benefits concerning creative strategies for protection and enforcement of intellectual property rights in the cannabis industry.

Trademarks are a form of intellectual property that include words or designs, which indicate the source of goods or services.  Cannabis companies may register their trademarks at the state level where cannabis is legal.  However, the rights afforded are limited to the state in which the mark is registered.  

Federal trademark registration provides nationwide rights.  But cannabis related trademarks may not be attainable.  This is because the United States Patent and Trademark Office (“USPTO”) requires that applicants use or have a bona fide intention to use their marks in lawful U.S. commerce.  Because cannabis remains illegal at the federal level, it’s not always possible for cannabis companies to register their marks with the USPTO.  We discussed this hazy issue in a previous post.

However, lawful use is not a requirement to register original works of authorship with the Copyright Office.  THC’s Copyrights may also function as trademarks.  But federal trademark registration for its goods containing cannabis may not have been an option for THC.  This is perhaps why THC chose to pursue registration with the Copyright Office instead of the USPTO.

Copyright registration provides several benefits, including the ability to enforce rights nationwide and sue in federal court.  Registration also provides for the potential to recover significant damages.  A claimant may elect to recover actual or statutory damages.  It’s unclear the amount of actual damages THC may have incurred.  But statutory damages can be substantial.  An award of statutory damages may range from $750 to $30,000 for non-willful infringement and up to $150,000 for willful infringement.  Notably, copyright owners may be able to recover damages for each registered work that is infringed.  Attorneys’ fees may also be available depending on when a registration issued.  The damages in this case may be high because of the six instances of alleged copyright infringement.

Copyright protection typically does not extend to short words and phrases.  So, THC may not have been able to obtain copyright protection for WHAM!, POW!, or WHOA! by themselves.  But these terms included as part of a larger stylized design may be protectable via copyright.  The stylization of these terms in a comic book-esque manner is perhaps what persuaded the Copyright Office to issue registrations for the Copyrights.  Conversely, the USPTO may allow registration of these terms, or similar terms, as trademarks irrespective of stylization.  This would hinge on, among other things, the goods or services offered in connection with the marks.  

It’s worth noting that THC owns several pending applications at the USPTO for, among other marks, WHOA!, POW!, and WHAM! for clothing and business services in the field of cannabis cultivation and product manufacturing.  THC may not be able to register these marks in connection with the sale of cannabis goods at the federal level.  But obtaining registrations for these ancillary offerings could help enforcement efforts against competitors.  

Intellectual property for cannabis companies is not limited to trademarks and copyrights.  Design patents may be obtained for the designs of certain products, utility patents may be granted for novel machines, methods of manufacture, or systems for the extraction of cannabinoids, and trade secret protection could apply to a dispensary’s confidential method for recommending products based on their effects and a client’s preference for the same. 

Cannabis companies that wish to protect investments in their brands should consider what intellectual property protection regimes may be available to them at both the federal and state level.  Because the industry is clouded in smoke, it’s often difficult to determine the suitable type of protection.  But cannabis companies may learn from THC.  Development of appropriate strategies to protect and enforce intellectual property can make competitors say “whoa!”

Last week, we asked for your input on whether certain images generated by AI programs were substantially similar to the Plaintiffs’ original artworks, as alleged in Andersen v. Stability AI

Orders issued in the Andersen case (and other, similar cases) to date suggest that the success of the plaintiffs’ claims hinges on being able to demonstrate substantial similarity between the copyright-protected materials used to train AI platforms and the output created by those platforms that the plaintiffs claim is infringing. This is because a successful copyright infringement claim requires a showing of: (1) ownership of a valid, registered copyright; and (2) that the defendant copied aspects of the copyright-protected work. The second prong of the test requires a showing of “copying” and “unlawful appropriation.” The plaintiff can prove copying through either direct evidence or access to the plaintiff’s work combined with similarities between the two parties’ works. Courts have held that the hallmark of “unlawful appropriation” is that the works share substantial similarities.

The problem is that “substantial similarity” can be subjective, and typically presents an extremely close question of fact. The standard test used by courts for substantial similarity between two items is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the same.

What better way to test the waters than to see what you thought? Here are the results of our reader poll:

Image Set #1: 60% of readers thought the AI outputs were substantially similar

Image Set #2: 50% of readers thought the AI outputs were substantially similar

Image Set #3: 55% of readers thought the AI outputs were substantially similar

Image Set #4: 70% of readers thought the AI outputs were substantially similar

Image Set #5: only 40% of readers thought the AI outputs were substantially similar

Image Set #6: only 20% of readers thought the AI outputs were substantially similar

Image Set #7: 60% of readers thought the AI outputs were substantially similar

Image Set #8: only 30% of readers thought the AI outputs were substantially similar

Image Set #9: 60% of readers thought the AI outputs were substantially similar

In short, a majority of our readers think that the image outputs are a mixed bag for the plaintiffs, but that many of the AI outputs are indeed substantially similar. Stability AI seems to agree—at least at the motion to dismiss stage. Its motion to dismiss brief doesn’t include any arguments on substantial similarity. Midjourney, Runway AI, and Deviant Art did all raise substantial similarity arguments, as we wrote here, but largely focused on high-level issues about whether “concepts” and “ideas” are subject to copyright protection; whether the plaintiffs actually registered the works in question; and whether plaintiffs manipulated the AI programs to generate the allegedly similar outputs. 

The plaintiffs are allowed until March 21 to respond to defendants’ motions, and the defendants must file reply briefs by April 18. A hearing on the motions is scheduled for May 8, 2024.

On Wednesday, the Supreme Court heard oral argument in Warner Chappell Music, Inc. v. Nealy, an appeal of the Eleventh Circuit’s determination that a copyright plaintiff can recover damages for infringement occurring more than three years prior to filing suit. The Eleventh Circuit’s decision was based on the discovery accrual rule, which begins the limitations period at the moment a plaintiff becomes aware of or should reasonably learn of the infringement upon which a claim is based.

Sherman Nealy and Music Specialist, Inc. brought the underlying lawsuit against Warner and others based upon the alleged unauthorized licensing and use of songs owned by the plaintiffs. Much of alleged infringement occurred while Nealy was incarcerated, and he alleged that he did not become aware of the infringement until 2016. Nealy filed suit in 2018, within three years of the date he allegedly discovered the infringement.  The district court held that Nealy’s claims were timely, but that he could only obtain damages for the three years prior to the filing of his lawsuit. The Eleventh Circuit overturned the finding that such a limit on damages existed, holding that Nealy could potentially recover damages outside the three-year period.

Continue Reading Skeptical of the Second Circuit: U.S. Supreme Court Hears Arguments on Copyright Damages