Inequitable conduct cases don’t happen every day in patent law, so when one comes along, it can be interesting. A recent decision from North Dakota examined an unusual set of facts surrounding the sale of patented hydraulic fracturing technology almost two years before the inventor filed a patent application. After reviewing all the facts, the court determined not only that the prior sale was a material fact (which should have been disclosed to the PTO) but also that the inventor made a deliberate decision to withhold the prior sale from the PTO. Both facts together were fatal. The court held the patent to be unenforceable.

Join Antigone Peyton and Clyde Findley in this podcast as they explore this decision from North Dakota and discuss how future inventors should think about the timing of patent applications when they offer their inventions for sale.

A recent decision from the Court of Appeals for the Federal Circuit has brought a relatively obscure section of trademark law into the constitutional spotlight and paved the way for a potential Supreme Court debate. Reviewing a case involving the music group THE SLANTS, the court held the trademark act’s rule refusing registration for disparaging marks unconstitutional because it violates the freedom of speech clause of the First Amendment.

This same disparagement provision of the trademark act is currently under review in another case involving the dispute over the name for DC’s football team. Efforts to cancel THE REDSKINS trademark registration have been widely reported, and that case is now under review by another court of appeals. Will this appellate court follow the Federal Circuit’s lead? Or will it uphold the rule’s constitutionality? The outcome will determine whether this issue will be ripe for review by the Supreme Court.

Join Antigone Peyton and Kandis Koustenis in this podcast as they explore this recent decision and its potential effect on the Redskins case and a possible path to the Supreme Court.

A photographer’s journey to an Indonesian nature preserve resulted in macaque monkeys having fun with his camera.When a monkey’s “selfie” went viral, so did the copyright questions. Multiple disputes ensued, including a lawsuit filed by People for the Ethical Treatment of Animals against the photographer and his publisher arguing that the monkey owns the copyright to the photo. So who owns the monkey selfie? Is it even subject to copyright?

Join Jennifer Atkins and Antigone Peyton in this user-requested podcast in which they discuss whether an animal can own a copyright, a bit of trivia about copyright and photography, and the issue of how copyright deals with new technologies.

They are everywhere you look online: compressed image files, usually animated, of people or animals. Graphic Interchange Format (GIF), created to reduce file transfer time, has given rise to social media feeds full of cats riding burritos in space and ubiquitous iterations of the salmon cannon. And lots of athletes making plays. When Deadspin and SB Nation posted GIFs of NFL players on Twitter in October, the NFL sent DMCA notices and Twitter suspended the accounts for a while.

But did the GIFs really infringe a copyright? As with all new technologies and new art forms, the copyright issues are not clear cut. And how does the Fair Use doctrine come into play?

Join Jennifer Atkins and Antigone Peyton in this listener-suggested podcast as they explore the effect of copyright protection and the Fair Use doctrine on the use of GIFs.

Many technology professionals consider business method patents and software patents under attack by the courts after the United States Supreme Court issued its decision in the Alice Corporation v. CLS Bank International patent case. Even before this decision, in fact, over the last decade, courts have been invalidating patents already granted by the U.S. Patent and Trademark offices on the grounds that they cover unpatentable subject matter such as “abstract ideas.” This injects additional uncertainty and cost into the patent prosecution process and subjects certain patents to significant attacks if the patent owner attempts to enforce them in court. So what does the road ahead look like for software patents? Future unclear.

Enter copyright law, which has a very long term of protection and a very low bar for obtaining a copyright registration. Copyright law protects software code, the look and feel of the user interface, or other aspects of software that have traditionally been protectable under copyright law from copying. Will copyright become the new favored protection regime for innovative software technology?

Join Jennifer Atkins and Antigone Peyton in this podcast as they explore the differences between patent protection and copyright protection for software and consider whether copyright will fill the gaping hole left by the active use of the patentability law to strike down issued patents.

Unless you’ve been living in a cave the last few weeks, you’ve probably heard about the West Virginia scientists who discovered that Volkswagen (VW) has been cheating on diesel emissions tests and violating EPA emissions standards for years. VW pulled this feat off by installing a special software sequence called a defeat device on its electronic control module (ECM). That software program dramatically reduces nitrogen oxide emissions by turning on strict emission controls when, and only when, the vehicle detects that it is undergoing the emission test sequence. When driving, these VW vehicles pollute far more than reported by the manufacturer.

The scientists that discovered this issue performed extensive mechanical testing on VW vehicles, they did not review or analyze the software program running on the ECM. If they had, they might have found the special algorithm designed to run during the emission testing conditions far more easily and at less expense. However, they could have violated the anti-circumvention provision of the DMCA by breaking the digital rights management (DRM) technologies that protect the software code and exposed themselves and their employer to civil and criminal liability. Does the DMCA strike an appropriate balance between protection of owners’ rights and prevention of piracy vs. allowing appropriate access to discover illegal activities or safety and security issues?

Join Jennifer Atkins and Antigone Peyton in this podcast as they consider how the anti-circumvention provision of the DMCA has affected the scientific research community and disrupted the normal processes relating to peer review and scientific integrity. They will also explore the complex process for requesting liability exemptions for certain activities, every three years.

*Update: After this podcast was recorded, the Copyright Office issued a ruling making exceptions for certain kind of circumventions related to automobiles. You can read that ruling here.

Sometimes secretive websites don’t keep their secrets very well. That’s certainly true of the Ashley Madison site, which is now a famous (infamous) site that connects those interested in infidelity with other like-minded people that was hacked. So what did its owner, Avid Life Media, do when its customers’ data was leaked on the Internet? Well, it sent out a bunch of DMCA takedown notices, stat, to ask the relevant service providers to take down the embarrassing content that revealed its customers personal information.

Join Jennifer Atkins and Antigone Peyton in this podcast as they explore this explosive hack and the website owner’s response. The Ashley Madison story reflects an increasingly tendency to misuse copyright law, and the DMCA takedown process in particular, to protect content that doesn’t fit within the copyright regime.

Yes, the “Happy Birthday” song has been around for a while. And yes, until very recently, if you wanted to sing it and play the music for a commercial purpose you had to pay $$ for the privilege. Warner/Chappell music was raking in the dough for that ubiquitous song for decades, until now. In a stunning upset of a well-heeled copyright licensing and enforcement program, a judge recently ruled that the company and its predecessors never had the right to charge fees for the use of that song.

Join Jennifer Atkins and Antigone Peyton in this podcast as they explore this interesting music case, the history of the song, and all of the fascinating (but quirky) copyright issues the court considered as it decided who (didn’t) own the lyrics to this famous song.

Did you ever think that you’d get in trouble for playing one of your favorite songs?

Stephanie Lenz didn’t. But then she put a 29 second video clip of her son on YouTube, and it had Prince’s “Let’s Go Crazy” song playing in the background. And then Universal Music called her a big ole’ copyright thief. But Ms. Lenz may teach Universal Music a thing or two about fair use of Prince’s famous song and copyright infringement.

In this Decoding IP podcast, Jennifer Atkins and Antigone Peyton explore the dark underbelly of the Digital Millennium Copyright Act (DMCA) and the rampant misuse of the takedown provisions of this law.

Savvy litigators care about social media. Or at least they should care about social media.

From employment to criminal cases, popular media coverage and court opinions have already demonstrated that social media may be relevant in a wide variety of litigations. The value of social media as a tool in the evidence arsenal is becoming clearer to many litigants, counsel, judges, and even juries.

But I still run across a fair number of litigators—even after my social media presentations—who consider the topic interesting but totally irrelevant to the work they do. By telling real-life stories of social media that tanked a litigator’s case, I hope to change their minds.Listen to Podcast

History is the best teacher. So with the help of my fellow tech-friendly attorney Ernie Svenson, I’ve decided to share stories of litigations, attorneys, and clients affected by inexperience, bad behavior, or simple carelessness involving social media. Some of these people weren’t savvy enough with social media and e-discovery to “cover their tracks.” Others exercised bad judgment with the information they posted for the world to read—and paid for it in litigation. Finally, we’ll share stories of current litigation disputes and practices that are testing the bounds of the public/private information divide and ownership disputes over social media accounts. Social media plays a primary role in all of these cases.

We hope these stories, which we reveal in this Lawyer2Lawyer podcast, inspire you to roll up your sleeves and continue to learn about topic. It’s difficult to search, collect, and use social media in litigation unless you have an understanding of each social media outlet’s culture, the way it’s built and organizes information, and how it can be preserved and harvested in a defensible manner. Or, you can hire, empower, and oversee people who will bring that expertise and know-how to your team. But someone on the litigation team should understand social media and how it can be used effectively in litigations. Otherwise, you may hear about your story in our next podcast.