In the ever-evolving landscape of intellectual property (IP), 2024 promises to be another year of new developments. We’ll examine a precedential litigation case, dive into the intriguing and sometimes complex world of AI and IP, and discuss the impact of recent legislative changes. 

1.) Litigation Trends in IP 

Use of Third-Party Trademarks in Creative Works

For over three decades, the Rogers test determined if use of a trademark in a creative work constituted infringement. The Rogers test essentially asks if the trademark owner alleging infringement can show (1) that the challenged use of a mark “has no artistic relevance to the underlying work” or (2) that it “explicitly misleads as to the source or the content of the work.” However, in 2023 in the Jack Daniel’s v. VIP Products decision, the Supreme Court found that when an alleged infringer uses a trademark as a source identifier for its own goods, a likelihood of confusion analysis is appropriate (not the Rogers test). The Second Circuit then cited the Jack Daniel’s decision in deciding that MSCHF Product Studio’s new take on Vans classic shoe design is subject to a likelihood of confusion analysis. The key takeaway for startups to keep in mind is that the trend in these recent cases is that using a third-party trademark in a creative work does not negate infringement.

2.) AI as an author of IP? 

According to CNBC, the UK’s highest court has ruled that artificial intelligence (AI) cannot be listed as an inventor on a patent application. The case involves inventor Stephen Thaler and his AI creation ‘DABUS’. Thaler’s attempt to list DABUS as the inventor for two patent applications faced a resounding rejection from the UK Intellectual Property Office, which emphasized the requirement for a natural person to be designated as the inventor. This ruling not only sets a precedent in the UK but is in line with similar decisions in U.S. courts (also brought by Thaler) that patents must have human inventors. However, there may be changes in the future as legal frameworks regarding AI-driven inventive processes are still new and developing.

3.) Legislative Changes in IP 

As technology evolves, governments adjust policies and legislation to the ever-changing landscape of intellectual property. Below are a few of the legislative changes that will have an impact on intellectual property this year (as shared by IamIP, with our thoughts): 

• Protecting American Intellectual Property Act of 2022: Strengthening Trade Secret Theft Enforcement

The Protecting American Intellectual Property Act of 2022 (PAIPA) aims to strengthen U.S. enforcement of intellectual property rights against foreign entities. Of note, this Act imposes sanctions on foreign actors involved in trade secret theft. Some sanctions include restricting loans and other banking transactions, banning investments in a sanctioned entity, and declaring sanctioned individuals inadmissible to the United States.

• PREVAIL Act: Raising the Bar for Patent Validity

Notably, the Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act requires that before a person challenges a patent with the United States Patent and Trademark Office, they must first have been sued or charged with infringing the patent they intend to challenge. 

• Patent Eligibility Restoration Act of 2023: Clarifying Patent Eligibility

The Patent Eligibility Restoration Act of 2023 (PERA) focuses on tackling issues related to patent eligibility under Section 101 (that sets out which inventions are patentable). Primary goals of PERA include revamping Section 101, eliminating judicial exceptions (content outside of statutory requirements), and providing guidance on computer-related inventions, thereby offering more certainty to inventors.

These are just some of the rising trends in intellectual property law that are of importance to startups. We’ll continue following the trends and will be back with updates.

If you have questions regarding intellectual property law, feel free to contact us at 844-2-TKALAWFIRM or visit www.tkalawfirm.com to learn more about how we can assist with your startup’s legal needs!

This information is presented for general informational purposes only, is not to provide legal advice, and is not intended to represent a complete list of all possible issues. This information should not be construed as legal advice and does not create an attorney-client relationship. You should seek the advice of an attorney regarding your particular situation.