Overview
Letter from the Editor
Dear Friends and Colleagues,
Thank you so much for your continued interest in The Newtonian. In 2022, we published two issues. This year, Leason Ellis published three issues. Now, we are simplifying and expanding our approach to sharing timely content with you. Going forward, we are committing to four issues per year, with one longer case discussion per practice area.
Many of the legal issues explored in our practice group discussions are a product of the digital world we have collectively created and embraced—the role of social media influencers on surging counterfeit goods sales, novel questions of copyright law presented by A.I. large language models, and useful tools for curbing infringing sales through online marketplaces. These are the central themes of this issue.
Patent
Supreme Court Dodges Patent Eligibility Standards Again
By Jarryd R. Werts
Trademark
Counter[feit] Culture: The Influence and Impact of Counterfeit Goods
By Sara E. Gruber and Emily A. Rice
Copyright
Open Season on OpenAI
By Tatsuya Adachi
Litigation
DMCA Takedowns: Powerful Enforcement Tools When Used Correctly
By Stefanie M. Garibyan
Lastly, a hearty congratulations is in order for our colleague, Melvin Garner, for receiving the American Intellectual Property Law Association’s Excellence Award, AIPLA’s highest recognition for contributions to the field of intellectual property law. It is truly a privilege to work alongside Mel. For more information, see the Firm News section of this issue.
Warmly,
Henry A. Gabathuler
Partner
Editor, The Newtonian
Supreme Court Dodges Patent Eligibility Standards Again
Patent eligibility under Section 101 remains a hot topic at all federal courts. Still, the Supreme Court has again refused to take up the issue—this time rejecting a writ of certiorari in a medical diagnostics case. In CareDx, Inc. v. Natera, Inc. , 40 F.4th 1371 (Fed. Cir. 2022), three patents related to methods for detecting organ transplant rejection were at issue. The district court and the Federal Circuit held that these patent claims were patent ineligible under Section 101 because they are directed to a natural phenomenon with only conventional steps for quantifying it. Petitioners CareDx and Stanford argued…
Counter[feit] Culture: The Influence and Impact of Counterfeit Goods
Social media has changed the way the world communicates. The growth of certain individual platforms, such as Instagram and TikTok, has directly impacted the global economy. Indeed, social media has become an online marketplace inundated with content creators and influencers who utilize calculated marketing techniques to gain public recognition and financial opportunities. While the expansion of the social media marketplace has brought about many impressive contributions to society, it has also directly contributed to the facilitation of illegal activity as it pertains to counterfeit (or “dupe”) products. Influencers who promote counterfeit goods, such as handbags and wallets, have been termed…
Open Season on OpenAI
Between June and September 2023, book authors filed five class action lawsuits—four against OpenAI, Inc. and one against Meta Platforms, Inc.—claiming their books were copied without their permission to train artificial intelligence large language models (LLMs). The lawsuits target OpenAI’s ubiquitous product, ChatGPT, and Meta’s similar offering, LLaMA. ChatGPT and LLaMA are text-based generative AI products: upon a human user’s entry of a text prompt, they will simulate a human response based on information extracted from “training” text input into the language model. In the OpenAI cases, the plaintiffs claim ChatGPT’s ability to generate lengthy summaries and, in some instances,…
DMCA Takedowns: Powerful Enforcement Tools When Used Correctly
Digital Millennium Copyright Act (DMCA) takedown notices are an important and powerful tool for copyright holders seeking to protect their rights. The DMCA was enacted to provide third-party service providers (like Amazon, for example) with safe harbours from liability that might flow from facilitating the sale or distribution of copyrighted materials if they promptly act upon learning of a possible copyright infringement. The DMCA takedown procedure works like this: A person who believes there is an unauthorized use of their rights may submit a notice to the provider that, among other things, identifies the copyrighted work and the allegedly infringing…
