Altering IP: regulations, resolutions and revisions

Other criticisms were leveled at apparent interference with seeking legal remedy. At the formal inauguration of the Unified Patent Court (UPC) on May 30, 2023, Klaus Grabinski, President of the Court of Appeal and chairperson of the Presidium, expressed his keen reservations against a non-enforcement clause. Prior to launching any court action, SEP holders would have needed to go through a mandatory conciliation phase or FRAND determination: "I fully support the Commission's aim to enhance transparency, but access to justice is a core fundamental right," he remarked.

Of course, not all applauded the abandonment. The Fair Standards Alliance, a European advocacy group concerned with SEP licensing, was "stunned" by the turn of events that would "deepen Europe's strategic dependencies instead of supporting industry in Europe."

The Commission has promised to "assess whether another proposal should be tabled or another type of approach should be chosen pending agreement from the Parliament and the Council." This desire for a clarified SEP regulatory framework would surely result in further attempts, but with a procedural reset, realizing that goal would not seem likely in the immediate future.

Big brands settle patent and trademark dispute over running shoes

Apparel companies Puma and Brooks Sports have agreed to end an IP argument that spanned categories, counterclaims and courts. The stipulated dismissal with prejudice means litigation which began with Puma's suing Brooks Sports in July 2022 for trademark infringement, design infringement and unfair competition has finally run its course.

Legal conflicts in the highly competitive sports shoe market are nothing unusual, but what set this quarrel apart was the plurality of IP rights that eventually became involved, drawing in a significant number of utility patents on top of design patents and trademarks.

Debuted in 2021, Puma's "Nitro" trademark has been registered in the United States in relation to footwear (specifically, soccer shoes and golf shoes) from 2023, with a second registration pending for running shoes, training shoes and basketball shoes. The German company alleged that its U.S. rival prominently employed the word "Nitro" while marketing a competing product. Brooks Sports, which made use of the term in promotional material describing the shoes' nitrogen-infused midsoles, petitioned in January 2024 to have Puma's registration cancelled.

Though no registrations existed for either manufacturer at the time of the initial complaint, Puma asserted that its mark was "proprietary, highly valuable, and an important asset," claiming priority of use. The lawsuit filed in the defendant's home state of Washington also claimed Brooks Sports violated a design patent covering a bulbous midsole appearance.

In June of last year, Puma filed an additional lawsuit in Washington, alleging the impingement of nine patents by five of Brooks Sports' product lines. Three months later, the Seattle-based company filed an affirmative defense against Puma's threats to sue for the infringement of a specific patent by the "Glycerin 21" shoe line. In the preemptive strike, Brooks Sports sought to have the U.S. District Court for the Eastern District of Virginia invalidate the grant before it could be asserted in further lawsuits.

The confidential settlement brings all these actions to a permanent close without revealing further details. That being so, since Puma's latter "Nitro" trademark is still pending registration at the United States Patent and Trademark Office (USPTO) and cancellation proceedings have been terminated, it may be inferred that the arrangement involves Brooks Sports changing its marketing approach to find a new way to put its best foot forward.

Thomson Reuters successfully argues copyright infringement involving AI

"A smart man knows when he is right," began U.S. Circuit Judge Stephanos Bibas in a summary judgment this month; "a wise man knows when he is wrong. Wisdom does not always find me, so I try to embrace it when it does––even if it comes late, as it did here."

The case at issue was a milestone copyright suit between Thomson Reuters, a content and technology conglomerate, and the now-defunct ROSS Intelligence. In the story's final twist, it was found that the unauthorized use of material from Thomson Reuters' Westlaw platform to create a competing product was impermissible under U.S. copyright law.

Judge Stephanos Bibas revised his own 2023 decision that a jury should determine whether or not fair-use exceptions apply to building an AI-based legal research tool. Hence, he granted partial summary judgment to Thomson Reuters, rejecting the defenses of innocent infringement, copyright misuse, merger and scenes à faire (material not captured by copyright due to its obligatory inclusion in a type or genre of work). ROSS Intelligence's fair-use arguments failed on a four-point test, with the copying being commercial in purpose, non-transformative and, decisively, likely to result in a market substitute for the original material.

With the rapid development and deployment of AI models clashing with established norms of copyright regulations, this outcome represents a morale boost for content owners who demur at the use of their creativity for monetized ends. Yet, the reach and significance of this month's decision should not be overstated – the AI technology at hand was strictly non-generative and thus inherently incapable of producing derived works.

Ultimately, the world's copyright systems must continue to grapple with the corollaries of data- and text-mining exemptions utilized by generative AI developers such as Meta Platforms, Microsoft, OpenAI and many others. In protest against this tightening Gordian knot, 1,000 music artists in the United Kingdom released a "silent album" this week. With the campaign featuring names such as Annie Lennox, Kate Bush, The Clash, Jamiroquai and Billy Ocean, the 12-track album, "Is This What We Want?," consists solely of studio ambiance.

The track listings together read, "The British government must not legalise music theft to benefit AI companies," in reference to proposed amendments to copyright legislation in the country. The tabled changes would see "an exception to support use at scale of a wide range of material by AI developers where rights have not been reserved." If implemented as described, the framework would allow developers to use all non-reserved content to which they had lawful access without permission or remuneration.

In the end, the aptness of any legal solution to the generative AI quandary can only be judged from a position that accounts for both the economic exigencies created and served by this technology and the fact that the copyright system exists for the benefit of humans. With any luck, this wisdom will not arrive too late.