Lawrence A. Husick, Esq.

23/07/2024

Wow! So honored…and so inexpensive if I want one to hang on my wall… only $199 (plus shipping, of course!)

28/10/2022

Ask Dr. Copyright

Dear Doc:

I have read your columns about how patent law is now mostly unable to protect inventions that incorporate artificial intelligence and machine learning computer applications. So…what’s an aspiring inventor in those fields to do? How may such systems be protected? Is all hope lost?

Signed,
HAL

Dear HAL:

No. All is not lost. We are fortunate that in 1978, the Commission on New Technical Uses (CONTU) helped to modernize United States copyright laws in ways that are still paying benefits to innovators.

If you’ve been following the Doc’s columns, you already know that copyright protects works, such as books, music, films, photographs, chip masks, software code, and websites. Copyright protects how ideas are expressed (including organization and structure, and how information is captured in software code). Copyright owners get exclusive rights to their works, including the rights to reproduce, distribute, perform, and display. Copyright protection lasts a very long time, as well.

For developers of artificial intelligence and machine learning (“AI/ML”) systems, the law provides protection for many components; the software itself, data used within the system, representations and organizations of information (the “taxonomy”) and others. Copyright on AI/ML source code may be used to prevent others from reproducing the source code, translating the source code into a different computer language, and (in some circumstances) reproducing features of the source code (such as structure of the code), even if not copied verbatim from the protected code. See, Microsoft Corp. v. Buy More, Inc., 703 Fed. Appx. 476, 2017 (where a court granted Microsoft $1,950,000 in statutory damages on a summary judgment); Whelan Assocs. v. Jaslow Dental Lab., Inc., 797 F.2d 1222 (3rd Cir. 1986).

In copyright law there are no subject matter eligibility requirements as there are in patent law. Where an AI/ML system is ineligible for patent protection, copyright protection can be a powerful alternative tool.

It is also helpful to note that in machine learning, the training data set may be separately protected by copyright as a compilation of data. This means that others may not use the same information to train a system, which protects the machine learning outcomes.

For an AI/ML system to be legally protected, copyright registrations should always be pursued prior to any publication or disclosure. Copyright is less complex than patenting. Copyrights last far longer than patents. Copyrights are simpler to litigate than patents. Just bear in mind that copyright never protects the idea, but only the particular way that the idea is expressed in a “tangible medium of expression.” If you need to protect an AI/ML concept, patent is essential to having complete protection.

Are you developing artificial intelligence? Consult the attorneys at LW&H. They are genuinely intelligent and will be glad to help protect your systems.

Until next month,

The “Doc”

20/09/2021

Projections for the next few decades show that the demand for healthcare will explode, while the supply of trained physicians, therapists, nurses and other professionals will fail to keep pace. To bridge that chasm, we will have to turn to increasing efficiency through the application of artificial intelligence and big data, while not turning healing and caregiving into a human form of car repair. In order to address this need, we will need to personalize medicine, analyze genomes, microbiomes, proteomes, and electronic medical records, and provide efficient decision support to paraprofessionals at every level. Doing so will require vast investments of time and money.

And yet, our legal system is now undermining intellectual property protections for AI, for healthcare technologies that use computers, for genetic technologies, and for many other inventions. Without such protections, there will be no investments in the technologies needed to keep us well and to cure the sick. Judges and Congress seem blind to the coming crisis. Is there a solution?

Tune in to find out! https://www.google.com/url?q=https://chempharma.us1.list-manage.com/track/click?u%3D3709ad6247fba4bd530299abc%26id%3D2be6ad161c%26e%3D00e5d63916&source=gmail-imap&ust=1632748728000000&usg=AOvVaw3anHyP8RzW7RDnhORLbArL

23/06/2021

The answer is, of course, that in any free and fair election, the Republicans would lose. The filibuster, a non-Constitutional vestige of Jim Crow, and gerrymandering, are all they have left.

OUTRAGEOUS: Every single Republican senator just voted to disenfranchise American voters. Our work is far from over.

26/02/2021

Dear Doc:

Me want to protect cookie. How can do that?

Signed,
A Certain Monster

Dear Mr. Monster:

A recent case from the Third Circuit Court of Appeals may help you to understand how cookies are protected.

More than 50 years ago, Ezaki Glico Kabushiki Kaisha developed “Pocky” – a thin, elongated biscuit partially covered with chocolate. About five years after Pocky entered the United States market, Lotte Confectionery began selling a lookalike biscuit stick called “Pepero”. After obtaining trade dress registrations for the Pocky design, Glico sent cease and desist letters to Pepero in the 1990s. Nevertheless, Lotte continued to sell Pepero. In 2015 Glico sued Lotte for trade dress infringement and unfair competition under the federal Lanham Act and state law in the US District Court in New Jersey.



Glico not only registered its trade dress (the appearance of its cookie) but also was granted a patent on how the cookie is made, and on the cookie itself, made by that method. In the patent, it explained the benefits of its cookie (apart from tasting good): that one could pack many closely together and that the uncoated part of the biscuit forms a handle with which to hold the cookie without getting chocolate on one’s fingers.

Unfortunately for Glico, it tried to use trademark law (the Lanham act) to go after Pepero. You see, utility patents protect useful inventions, design patents (which have a term shorter than utility patents) protect ornamental features of an invention that are not useful, but trademark registrations protect only the goodwill associated with a product, and not anything about it that is useful. As the Court said, ironing board covers have no need to be gold, and coffee pot handles have no need to be “C” shaped, so those features are protectable using trade dress.

So, Mr. Monster, to protect a cookie, you may want to hide the cookie jar, apply for utility patent protection on how it’s made, design patent protection on its appearance (as long the features are not useful), trade dress registration on non-functional aspects (such as making the cookie hexagonal, or embossing it with your name), and so-forth. The best way to protect your cookie, after all is said and done, may, however, be just to eat it quickly. As the Glico Court said, “That’s how the cookie crumbles.”

Have a product that needs protecting? Haven’t eaten it yet? Call the attorneys at LW&H. They’d love to help you out, before you’re caught with your hand in the cookie jar.

Until next month,

The “Doc”