As technology develops, the growing presence of Artificial Intelligence (AI) within our lives becomes more prominent. AI predicts what we want to watch on TV, what food we want to eat, and what we want to type. The predictive abilities of AI have begun to even encroach upon the creative space. The use of AI as a tool in arts and science is not new, however. Scientists have used the residual processing power from video game consoles to assist AI in processing models for the potential folded structures of proteins. What is new however is the use of AI to create a new product with little human input entirely.
This raises important questions in intellectual property (IP) (Particularly in the fields of patent and copyright law.) If an AI invents something useful or creates an expressive work, who will own the IP in that work? If the invention is patentable, who is the inventor? The AI or the creator or owner of the AI? Similarly, if an expressive work is copyrightable, who is considered the author? Answering these questions is essential in determining who will ultimately own the IP.
Thus far, the question of AI inventorship or authorship has hinged on the fact that such creations are a result of a non-human entity. To begin to understand how such creations from non-human entities are treated, we first look at how non-human authorship is treated by the courts. We will start at the beginning – before AI was considered an inventor.
When most law students think of protecting an invention or technology, they immediately jump to patents, which is a type of IP granted by the government to protect inventions. However, trade secrets are also a type of intellectual property that can protect technology. And, trade secrets can sometimes be more useful – and valuable – than patents. As we will see, companies are increasingly turning to trade secrets as a means of protecting their intellectual property. Some of the biggest IP litigation cases in recent years have involved trade secrets. Almost every company uses trade secrets to protect information. A downside to trade secrets however, is that they are sometimes difficult to protect. Continue reading →
As a summer associate working in patent litigation, I kept seeing the same judge’s name in the same district court. At first, I had no idea why this was the case. However, I’ve since learned how important venue is in patent litigation.
Selecting the right venue is crucial in patent litigation cases, because where a case is filed can impact its likelihood of success. So, what exactly is venue? And why is it so important to patent litigation? Allow me explain.
I’ve been interested in IP from an early age. Growing up, my mother’s best friend worked in Entertainment Law in Hollywood. I didn’t understand her job until years later, but she was working in IP.
At the time, her job simply seemed glamorous. She represented ‘the stars.’ I was intrigued by the idea of making money as a lawyer working with celebrities. I have loved music since I began playing the violin at four years old and I vividly remember my first concert at the age of six. Music has been a part of my entire life. Once I learned about IP and its relation to music, I couldn’t help but think of a better way to enjoy a career in law.
I am pictured on the left, playing at one of my first violin recitals. Photo attributed to Ron Field.
One might think that if a company is well established, its intellectual property would be de facto protected. But that is not the case. Two of America’s most iconic companies, easily recognizable and hard to confuse, are currently in a battle over trademarks. These two companies are none other than Anheuser-Busch and Yuengling, two of America’s oldest breweries. Yuengling was founded in 1829 in Pottsville, Pennsylvania, Anheuser-Busch, on the other hand was founded in the late 1850s, in St. Louis, Missouri. But recently these two giants of the industry have been warring over trademark rights. Continue reading →
Now, I wouldn’t call myself a sneakerhead by any definition of the phrase, but certain shoes will forever pique my interest. The classic Jordan 1 silhouette has captivated me since I saw Space Jam as a kid and became entranced with the MJ legend. For decades after that seed of appreciation was planted in my head as a child, I never thought twice about sneaker style. I was more of a chukka guy, to be honest.
Nike Air Force Ones: The picture I took at the thrift store to get my family’s opinion on whether I should by them. Attributed to Louay Meroueh
Fast forward to Summer 2019: I’m at a thrift store in Greenpoint, Brooklyn. I’m browsing the shelves for a rare size 13 shoe that would be worth salvaging. I come across a pristine pair of Air Force Ones for $30. At that moment, my limited interests in sneakers burst open to include the entire Nike roster.
Fast forward a few more years: I’m a first-year law student reading about a devilishly controversial case involving another famous Nike sneaker.
If you were a child sometime in the last three decades, you’ve likely had some sort of a connection to the cultural juggernaut that is the Pokémon franchise. An intellectual property so well known that Microsoft Word has autocorrected my spelling of the word Pokémon three times now. My personal connection to the franchise has persisted throughout my life. As a seven-year-old, I scrounged together change to buy a pack of the trading cards at the local 7-11. Later in life, I almost got robbed in a park while playing Pokémon Go at 2 AM in 2016 (true story).
Winston (Left) hanging out with Phoebe (right). Photo attributed to Louay Meroueh.
Most recently, I’ve begun to see Instagram ads for products not associated with Nintendo that draw from the vast pool of Pokémon nostalgia to push their products. One service in particular, called Pika Pika by Arianna, caught my eye. It’s a commission-based service that offers to draw your pet and insert them into a Pokémon card. The card looks like it could be used in the actual game. The picture of the pet is drawn in the style of a Pokémon. Typically, on every Pokémon card, there is a picture of the Pokémon and a list of abilities or moves that it can do. The abilities that are listed on the Pika Pika card are creatively adapted in accordance with your pet’s personality. I have two pets myself, and I’ve thought about using this service on more than one occasion.
I came to Loyola with an interest in intellectual property, specifically patents. Patents are granted by a country to protect inventions by granting the inventor certain rights. When it came time to start my job search for my 1L summer, I knew I wanted to try and get experience in the field of IP. In every IP interview I’ve had thus far, the interviewer has always asked what kind of patent law I want to practice. Do I want to “prosecute” patents, meaning writing and obtaining a patent for an inventor? Or, do I want to litigate issues for granted patents? These are the two most common areas of patent law. In my early interviews, I would answer patent litigation. I have previous experience as a litigation consultant prior to law school, and have always romanticized being a trial attorney. However, as I gained interview experience and spoke with more attorneys, I realized there were many different areas of patent law of which I had no idea existed. I realized I had an interest in a lot of them. After learning more about these fields, I was able to better tailor my job search to firms that offered those types of patent law.
While big companies may have dozens of trademarks, smaller and lesser-known companies can also have valid trademarks, as long as they satisfy the trademark criteria.
Can a large company infringe a smaller company’s mark? Yes! This is sometimes referred to as “reverse confusion,” where the small company is the first user and the large company is the later user. But, there can still be confusion among consumers. The larger company may use its money and resources (like ads) to infiltrate the smaller company’s market with a similar mark on similar goods or services.