Intellectual Property Deep Dive

US intellectual property law has four principal pillars — patent, trademark, trade secret, and copyright. Each has distinct constitutional or statutory grounding, distinct duration, distinct enforcement mechanisms, and overlapping subject matter at the boundaries. This entry treats each in depth, with a focus on prosecution mechanics at the USPTO, litigation procedure (including the post-2012 PTAB regime and the post-TC Heartland venue contraction), and the wave of AI-era doctrinal disruption. The disruption arc runs from 2014 (Alice v CLS Bank) through 2024 (Vidal v Elster) and the ongoing AI training cases.

US IP filings volumes (2023 USPTO statistics):

• Utility patent applications: ~600,000;
• Utility patents issued: ~315,000;
• Design patent applications: ~58,000;
• Trademark applications: ~736,000 (down from 944,000 in 2021’s pandemic-era surge);
• USPTO collections: ~$4B annually.

Patent law

Statutory framework

Patents derive from Article I, Section 8, Clause 8 of the US Constitution (Congress’s power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”). The current statute is the Patent Act of 1952, codified at Title 35 of the United States Code. Substantially amended by the Leahy-Smith America Invents Act (AIA), Public Law 112-29, signed September 16, 2011, effective for first-inventor-to-file applications March 16, 2013.

AIA changes:

• Shifted the US from first-to-invent to first-inventor-to-file (FITF), aligning with global practice;
• Narrowed the §102(a) prior-art definitions and eliminated the §102(a)(1) Hilmer doctrine;
• Created the Patent Trial and Appeal Board (PTAB) administrative trials replacing inter partes reexamination;
• Added micro-entity fee reductions for small filers;
• Added pre-issuance third-party submissions and supplemental examination.

Three patent types:

• Utility patents — the dominant category (~92% of US patents). Useful processes, machines, manufactures, compositions of matter; 35 USC §101; 20-year term from earliest non-provisional filing.
• Design patents — ornamental design of a manufactured article; 35 USC §171. 15-year term from grant for applications filed on or after May 13, 2015 (extended from 14 years by the Patent Law Treaties Implementation Act of 2012).
• Plant patents — asexually reproduced distinct plant varieties; 35 USC §161; 20-year term.

Patent eligibility — the Alice/Mayo framework

The biggest doctrinal upheaval of the past decade. The judicially-created exceptions to §101 (abstract ideas, laws of nature, natural phenomena) were dramatically expanded by a Supreme Court tetralogy:

• Bilski v Kappos, 561 US 593 (2010) — invalidated a method patent for hedging energy-price risk. Rejected the Federal Circuit’s machine-or-transformation test as the sole criterion but did not articulate a clear replacement, leaving abstract-idea analysis case-by-case.

• Mayo Collaborative Services v Prometheus Laboratories, 566 US 66 (2012) — invalidated diagnostic correlations between thiopurine metabolite levels and drug dosing as natural laws with conventional steps. Justice Breyer for unanimous Court introduced the two-step framework that became canonical.

• Association for Molecular Pathology v Myriad Genetics, 569 US 576 (2013) — isolated genomic DNA is a product of nature and unpatentable, but synthetic cDNA is patent-eligible. Ended Myriad’s BRCA1/BRCA2 monopoly and reset the landscape for personalized-medicine diagnostics.

• Alice Corp v CLS Bank International, 573 US 208 (2014) — codified the two-step Mayo framework as Alice/Mayo: (1) determine whether the claim is directed to a patent-ineligible concept (abstract idea, natural law, natural phenomenon); (2) if yes, determine whether the additional elements transform the claim into a patent-eligible application — looking for an “inventive concept” beyond well-understood, routine, conventional activity. Alice invalidated software claims for intermediated settlement as an abstract idea.

Federal Circuit application post-Alice has been notoriously unpredictable. Some illustrative survivors and casualties:

• Enfish LLC v Microsoft, 822 F.3d 1327 (Fed Cir 2016) — survival; database self-referential table claims found patent-eligible as technical improvement to computer functionality;
• McRO v Bandai Namco, 837 F.3d 1299 (Fed Cir 2016) — survival; lip-sync animation algorithm patent-eligible as concrete improvement;
• Berkheimer v HP, 881 F.3d 1360 (Fed Cir 2018) — held that the inventive-concept inquiry can involve underlying factual disputes, improving patentee survival at summary judgment;
• Electric Power Group v Alstom, 830 F.3d 1350 (Fed Cir 2016) — invalidation; data collection and display claims abstract;
• Yu v Apple, 1 F.4th 1040 (Fed Cir 2021) — invalidation; digital-camera dual-lens claim abstract per Federal Circuit.

The USPTO’s 2019 Revised Patent Subject Matter Eligibility Guidance and 2024 updated guidance attempt to bring examination consistency. The bipartisan Patent Eligibility Restoration Act (Tillis-Coons, introduced 2019, reintroduced 2023, S 2140 / HR 9264) would legislatively reset §101 by abolishing judicial exceptions. It has not passed as of 2026.

Novelty (§102), non-obviousness (§103), enablement (§112)

Novelty under post-AIA §102(a)(1) bars a patent if the claimed invention was “patented, described in a printed publication, or in public use, on sale, or otherwise available to the public” before the effective filing date. §102(a)(2) bars where described in another’s earlier-filed published application or patent. The §102(b)(1) grace period gives a one-year personal grace from the inventor’s own disclosures.

Non-obviousness is the most-litigated patentability requirement. KSR International Co v Teleflex Inc, 550 US 398 (2007) flexibilized the obviousness analysis, rejecting the rigid teaching-suggestion-motivation (TSM) test in favor of a “common sense” approach considering the predictable use of known elements according to their established functions.

The Graham v John Deere, 383 US 1 (1966) factual inquiries remain operative:

• Scope and content of prior art;
• Differences between prior art and claims;
• Level of skill of a person having ordinary skill in the art (PHOSITA);
• Secondary considerations (commercial success, long-felt need, copying, unexpected results).

Written description and enablement under §112(a) require the specification to describe the claimed invention with reasonable clarity to convey possession to a PHOSITA, and enable a PHOSITA to make and use the full scope without undue experimentation.

Amgen Inc v Sanofi, 598 US 594 (2023) invalidated Amgen’s broad genus claims to anti-PCSK9 antibodies (Repatha/evolocumab) defined functionally by binding and blocking activity. The specification did not enable the full claimed scope after Amgen disclosed only 26 representative antibodies for a class of potentially millions. Unanimous Court (Gorsuch) reaffirmed enablement requires the full claimed scope. Major implications for biologics patent strategy — sponsors must disclose representative species and a method for identifying others without undue experimentation.

Patent prosecution at the USPTO

A US utility application — provisional (12-month placeholder, never examined) or non-provisional — is filed with claims, specification, drawings, oath/declaration, and fees ($350 small entity utility filing in 2025). The application is assigned to an art unit (e.g., 2100 for computer architecture, 1600 for biotechnology, 3700 for medical instruments) and an examiner. The first substantive Office Action typically arrives 14-24 months after filing (median pendency to first action ~17 months 2024).

Response options to an Office Action:

• Argue (traverse rejections);
• Amend claims (within disclosure boundaries);
• Submit declarations (e.g., Rule 132 expert declaration on commercial success, unexpected results, secondary considerations);
• Interview the examiner (often the most cost-effective path).

After a final rejection, options include:

• Response After Final (limited scope);
• Pre-Appeal Brief Conference;
• Request for continued examination (RCE, $1,360 small entity for first; sharply higher for subsequent);
• Appeal to PTAB ($840smallentityNoticeofAppeal+$840 Appeal Brief filing fee);
• Abandon.

Restriction practice: an examiner may require election among independent or distinct inventions; non-elected subject matter can be pursued in a divisional application. Continuation applications claim priority to a parent and add new claims with no new disclosure. Continuation-in-part (CIP) applications add new disclosure and lose priority for the new matter. Track One Prioritized Examination ($4,200 large entity) advances to final disposition within ~6-12 months.

Patent term adjustment (PTA, §154(b)) extends term to compensate for USPTO delays in three categories (A, B, C delays). Patent term extension (PTE, §156, the Hatch-Waxman 1984 statute) extends term up to 5 years (maximum 14 years post-approval) for FDA review delay on a drug.

PTAB inter partes review (IPR)

The AIA created three administrative trial proceedings at the Patent Trial and Appeal Board (PTAB), commencing September 16, 2012:

• Inter partes review (IPR) — replacing inter partes reexamination; challenges novelty and obviousness based on patents and printed publications.
• Post-grant review (PGR) — within 9 months of grant; any §101-§103-§112 ground available.
• Covered business method review (CBM) — sunset September 2020 per its statutory time limit.

IPR has transformed patent litigation.

Statistics through 2023:

• Approximately 70% institution rate (PTAB decides to institute trial after preliminary response);
• Of instituted IPRs, approximately 80% result in all or some challenged claims found unpatentable in the final written decision (FWD);
• IPRs are typically filed by accused infringers within the one-year deadline of 35 USC §315(b) after being served with a complaint;
• Median time from petition to FWD: ~18 months.

Key Supreme Court IPR cases:

• SAS Institute Inc v Iancu, 584 US 357 (2018) — requires PTAB to institute trial on all challenged claims or none.
• Thryv Inc v Click-to-Call Technologies, 590 US 45 (2020) — made the §315(b) time-bar institution decision non-appealable.
• United States v Arthrex Inc, 594 US 1 (2021) — held the appointments of PTAB Administrative Patent Judges unconstitutional under the Appointments Clause. Remedy: USPTO Director review of final written decisions (Director Review process formalized 2022).
• Oil States Energy Services v Greene’s Energy Group, 584 US 325 (2018) — IPR is constitutional under Article III and the Seventh Amendment.

Cisco Systems and Apple have been heavy IPR filers.

Notable repeat petitioners by volume (2012-2023 totals approximate):

• Apple (~600+);
• Samsung (~500+);
• Google;
• Microsoft;
• Cisco;
• Intel;
• Volkswagen Group;
• Unified Patents (membership-funded defensive shop).

Patent-owner wins are rarer but real. Centripetal Networks against Cisco in district court (W D Va 2020) — $755M judgment — though Cisco IPRs later eliminated many of the asserted patents.

Double patenting

Obviousness-type double patenting (OTDP) prevents an inventor from extending exclusivity by getting two patents on patentably-indistinct claims; the remedy is a terminal disclaimer tying the later patent’s term to the earlier and requiring common ownership. In re Cellect, 81 F.4th 1216 (Fed Cir 2023) held PTA cannot extend term beyond a patent-family member’s natural expiration without a terminal disclaimer — a significant impact on pharmaceutical patent thickets.

Patent litigation

The Court of Appeals for the Federal Circuit (CAFC, est. 1982) hears all patent appeals, providing uniformity. Patent cases tried in district court can be appealed to CAFC, then to the Supreme Court (which takes 1-3 patent cases per term in recent years). Specialty patent districts traditionally include the Eastern District of Texas, Western District of Texas (Waco), Delaware, Northern District of California, and Eastern District of Virginia (the “rocket docket”).

Venue. TC Heartland LLC v Kraft Foods Group Brands LLC, 581 US 258 (2017) tightened patent venue under 28 USC §1400(b) to:

• (i) the district where the defendant is incorporated; or
• (ii) where the defendant has committed acts of infringement and has a regular and established place of business.

Pre-TC Heartland, about 40% of all US patent suits were filed in the Eastern District of Texas (Tyler/Marshall, Judge Rodney Gilstrap’s court). Post-TC Heartland, that share collapsed but rebounded modestly via the “regular and established place of business” analysis (In re Cray, 871 F.3d 1355 Fed Cir 2017). Waco Texas (Western District, Judge Alan Albright) absorbed much of the displaced volume 2019-2022 until the Western District’s case-assignment changes (July 2022) redistributed cases among judges. By 2024 Delaware overtook Waco and EDTX in raw filings, with Eastern District of Virginia and Eastern District of New York gaining share.

ITC Section 337 investigations. The International Trade Commission (ITC) hears §337 (19 USC §1337) complaints alleging IP infringement by imports. The remedy is exclusion order at the border, not money damages. The ITC moves fast (target completion 16-18 months from institution). Domestic industry requirement (§337(a)(3)) imposes a US-investment threshold on complainants.

Notable ITC investigations:

• Apple v Samsung (multiple ITC parallel proceedings 2012-2014);
• Roku v Universal Electronics (2022 limited exclusion order on Universal remotes);
• AliveCor v Apple (ITC found Apple Watch heart-rate ECG infringed AliveCor patents 2022; Apple obtained IPR-based stays);
• Sonos v Google (smart-speaker patents — ITC issued limited exclusion order January 2022, district court awarded $32.5M to Sonos May 2023, Judge Alsup vacated the verdict for prosecution laches October 2023; Federal Circuit appeal pending);
• Masimo v Apple (pulse-oximetry Apple Watch — ITC import ban January 2024, Apple software workaround restored sales, Federal Circuit appeal pending).

Major patent battles

Apple v Samsung “smartphone wars” (2011-2018) — multiple cases globally over iPhone design and utility patents. ND Cal jury (Judge Lucy Koh) awarded Apple $1.05Bin2012,laterreducedandpartiallyretried.SamsungElectronicsCoLtdvAppleInc,580US53(2016)limiteddesign-patentdamagestothe"articleofmanufacture"(couldbeacomponentratherthanentirephone),reversinga$399M damages component. Final settlement June 2018 for an undisclosed amount believed to be ~$539M.

Apple v Qualcomm (2017-2019) — Apple sued Qualcomm over chipset royalties and the “no license, no chips” practice. FTC v Qualcomm 2019 antitrust ruling (Judge Lucy Koh held Qualcomm violated antitrust law; reversed by Ninth Circuit 2020). Settled April 2019 with a one-time payment to Qualcomm reported as approximately $4.5B and a multi-year chip supply and licensing deal.

Earlier patent megaverdicts:

• Kodak v Polaroid (instant film) — Polaroid v Kodak 1990 $909M judgment after Kodak forced exit from instant photography;
• Honeywell v LG (LCD displays) — significant cross-licensing era;
• Centocor v Abbott — 2009 $1.67B jury verdict in EDTX on Humira-related antibody patents, vacated on appeal;
• Lucent Technologies v Microsoft;
• i4i v Microsoft — 2011 $290M Word XML. Microsoft Corp v i4i LP, 564 US 91 (2011) affirmed clear-and-convincing standard for invalidity in litigation.

Modern major battles:

• VirnetX v Apple — FaceTime VPN patents. Eastern District of Texas verdicts totaling $1B+ across cases; Apple ultimately defeated most via IPR; case still ongoing as of 2024.
• Caltech v Apple/Broadcom — WiFi patents. $1.1B jury verdict 2020, vacated/remanded 2022; retrial pending.
• Optis Wireless v Apple — 4G patents, ongoing globally with UK FRAND determinations central.
• WSOU Investments / Brazos Licensing — mass NPE filings 2020-2022 against many tech firms via the Western District of Texas before case-assignment changes.

FRAND/SEP licensing. Standard-essential patents (SEPs) declared under standards bodies (ETSI, IEEE, ITU) carry fair-reasonable-and-non-discriminatory (FRAND) commitments.

Key FRAND cases:

• Microsoft v Motorola, 696 F.3d 872 (9th Cir 2012) and Judge Robart’s 2013 ruling — set the first US FRAND rate;
• Huawei v ZTE, ECJ Case C-170/13 (2015) — established the EU SEP-injunction framework (the negotiation steps both parties must follow);
• Unwired Planet v Huawei, [2020] UKSC 37 — UK Supreme Court approved global FRAND rates set by English courts (controversial extraterritorial impact);
• InterDigital v Lenovo, [2023] EWHC 539 (Pat) — UK trial of global FRAND rate;
• Nokia v Daimler — German SEP-injunction litigation that drove the 2022 Patent Act amendments and the EU SEP Regulation (Council pending 2024-2025).

Patent pools and licensing administrators:

• MPEG LA — MPEG-2, MPEG-4 Visual, AVC/H.264, HEVC, AVCSI;
• Via LA (formerly Via Licensing) — ATSC, AAC, LTE, 5G;
• Sisvel — audio MP3 (legacy), mobile, automotive, wireless 5G;
• Access Advance — HEVC pool competitor;
• Avanci — automotive cellular SEPs single-source from BMW, GM, Ford, et al. as licensees;
• Velos Media (HEVC alternative pool).

Biotech and pharma. Myriad ended gene patents (cited above). CAR-T cell therapy battle — Juno Therapeutics (acquired by Celgene 2018; now Bristol-Myers Squibb) v Kite Pharma (acquired by Gilead 2017). Patents on single-chain antibody binding domains for chimeric antigen receptors. CD Jury awarded Juno $752Mplus27.6$1.2B with interest. The Federal Circuit reversed August 2021 finding lack of written description (Juno v Kite, 10 F.4th 1330 Fed Cir 2021). Supreme Court denied cert 2022 — major win for Kite/Gilead and an Amgen v Sanofi precursor.

Other biopharma cases:

• Sanofi v Amgen — see Amgen above on the PCSK9 antibody patents;
• Genentech v Eli Lilly (multiple anti-CD20 antibody battles);
• Moderna v Pfizer/BioNTech (mRNA-LNP patents, filed August 2022 in D Mass);
• Pfizer v Moderna (counterclaim).

Design patents. The Apple iPhone design patents (rounded rectangular form, grid-of-icons home screen) drove the Samsung damages litigation. Crocs Inc design patents on its foam clog (D517,789; D517,790; D632,465) were litigated repeatedly; ITC §337 actions and district-court cases continued through 2023. Lululemon v Costco (yoga pants design infringement claims). Columbia Sportswear v Seirus (heat-reflective patterns design patent — repeat trials).

AI inventorship

Thaler v Vidal, 43 F.4th 1207 (Fed Cir 2022) — affirmed USPTO rejection of patent application listing the AI system DABUS as inventor, holding the Patent Act’s “individual” requirement excludes non-humans. UK Supreme Court agreed in Thaler v Comptroller-General, [2023] UKSC 49. The USPTO’s February 13, 2024 “Inventorship Guidance for AI-Assisted Inventions” requires at least one natural-person inventor who made a “significant contribution” to the conception of each claim, applying a Pannu v Iolab Corp, 155 F.3d 1344 (Fed Cir 1998) significant-contribution analysis. The guidance does not bar AI-assisted patents but rules out AI sole-inventorship.

Trademark law

The federal trademark statute is the Lanham Act of 1946, 60 Stat. 427, codified at 15 USC §§1051-1141n. Trademarks are source-identifying marks (words, logos, slogans, sounds, colors, scents, trade dress) that distinguish a producer’s goods or services from those of others.

Application categories follow the international Nice Classification (45 classes — 1-34 goods, 35-45 services). Registration on the Principal Register (incontestability after 5 years of continuous use post-registration per §1065) or Supplemental Register (for descriptive marks lacking distinctiveness). Filing basis: §1(a) actual use in commerce, §1(b) intent to use, §44 foreign-application priority, §66 Madrid Protocol extension.

Examination at the USPTO checks for likelihood of confusion with prior registrations (§2(d)), descriptiveness/genericness (§2(e)), and absolute bars. Post-examination, a mark is published for opposition (30-day period extendable). The Trademark Trial and Appeal Board (TTAB) hears oppositions, cancellations, and ex parte appeals.

Likelihood of confusion

The multi-factor test varies by circuit. The Federal Circuit applies In re E I du Pont de Nemours & Co, 476 F.2d 1357 (CCPA 1973) — 13 DuPont factors including similarity of marks, similarity of goods/services, channels of trade, conditions of purchase, fame, third-party use, actual confusion, length and conditions of concurrent use. The Second Circuit applies the eight Polaroid v Polarad, 287 F.2d 492 (2d Cir 1961) factors. Other circuits have their own (Ninth Circuit Sleekcraft, Third Circuit Lapp, Fifth Circuit Roto-Rooter).

Famous marks and dilution

The Federal Trademark Dilution Act (1995) and the Trademark Dilution Revision Act of 2006 (15 USC §1125(c)) protect “famous” marks against dilution by blurring and dilution by tarnishment regardless of confusion. Moseley v V Secret Catalogue Inc, 537 US 418 (2003) had required actual dilution under the prior statute; the 2006 amendment changed the standard to likelihood of dilution. Famous-mark status requires nationwide fame to the general consuming public — courts have found Apple, Google, Coca-Cola, McDonald’s, Tiffany, Rolex famous; many regional brands fail.

Trade dress and secondary meaning

Trade dress protects product packaging and product configuration that has acquired distinctiveness (secondary meaning) — Two Pesos v Taco Cabana, 505 US 763 (1992) recognized inherently distinctive trade dress (restaurant decor); Wal-Mart Stores v Samara Bros, 529 US 205 (2000) held product design trade dress always requires secondary meaning. Functionality is a hard bar (TrafFix Devices v Marketing Displays, 532 US 23 (2001)).

Genericide

A trademark that becomes the generic name for a category loses protection (aspirin — Bayer Co v United Drug Co, 272 F 505 (SDNY 1921); escalator — Haughton Elevator Co v Seeberger, 85 USPQ 80 (Comr Pats 1950); thermos — King-Seeley Thermos Co v Aladdin Industries, 321 F.2d 577 (2d Cir 1963); cellophane; dry ice; trampoline; videotape). Modern at-risk marks include Xerox (heavily defended via ads and FUD letters), Google (Elliott v Google, 860 F.3d 1151 (9th Cir 2017) held that “google” as a verb did not render the Google mark generic).

Constitutional decisions

The Supreme Court has repeatedly struck down §2(a) Lanham Act content-based bars on First Amendment grounds:

• Matal v Tam, 582 US 218 (2017) — disparagement clause unconstitutional; the band The Slants could register their name (case began with the Washington Redskins’ Pro-Football Inc v Blackhorse cancellation proceedings).
• Iancu v Brunetti, 588 US 388 (2019) — immoral or scandalous matter clause unconstitutional; FUCT clothing brand could register.
• Vidal v Elster, 602 US 286 (2024) — upheld the §2(c) names clause (requiring living person’s consent to register their name) against First Amendment challenge to Steve Elster’s “Trump Too Small” T-shirt mark; the Court drew a viewpoint-neutrality line.

Jack Daniel’s v VIP Products

Jack Daniel’s Properties Inc v VIP Products LLC, 599 US 140 (2023). VIP sold a dog toy “Bad Spaniels Silly Squeaker” parodying the Jack Daniel’s bottle (“the Old No. 2 on your Tennessee Carpet”). Lower courts had applied the Rogers v Grimaldi, 875 F.2d 994 (2d Cir 1989) test treating the toy as an expressive work entitled to heightened First Amendment protection unless the use had no artistic relevance or explicitly misled. Unanimous Court (Kagan) held Rogers does not apply when the alleged infringer uses the trademark as a designation of source for its own goods; the case returned to standard Lanham Act analysis. Limits the Rogers safe harbor.

USPTO v Booking.com

USPTO v Booking.com B V, 591 US 549 (2020) — held a generic.com term may be registrable as a trademark when consumers perceive the composite as a source identifier, rejecting USPTO’s per-se rule that generic-word + .com is always generic. Booking.com obtained trademark registration.

Trademark trolling and bullying

Mass-filing operations (notably from China) submit thousands of intent-to-use applications backed by fraudulent specimens; USPTO has cracked down with a sanctions regime (37 CFR §11.18 sanctions, fraud-based cancellations, and the 2019 US-counsel-requirement rule for foreign-domiciled applicants). Trademark bullying — over-aggressive enforcement against legitimate small users — drew GAO study (2011) and remains a policy concern; Section 43(a)(1)(B) anti-dilution applies only to famous marks.

Trade secret law

Defend Trade Secrets Act (DTSA, 2016)

The Defend Trade Secrets Act of 2016 (Pub L 114-153, May 11, 2016) federalized trade-secret civil enforcement, codified at 18 USC §§1836-1839. Previously trade secrets were governed solely by state law (the Uniform Trade Secrets Act of 1979, adopted by 48 states with New York and Massachusetts following common-law analogs). DTSA preserves state remedies and adds a federal civil cause of action with nationwide service.

Trade-secret definition (§1839(3)) — information that (A) the owner has taken reasonable measures to keep secret, and (B) derives independent economic value, actual or potential, from not being generally known to or readily ascertainable through proper means. Misappropriation (§1839(5)) includes acquisition by improper means and use or disclosure without consent.

DTSA provides civil seizure (§1836(b)(2)) in extraordinary circumstances ex parte, plus injunctions, damages including unjust enrichment, reasonable royalty in lieu of damages, exemplary damages up to 2x for willful and malicious misappropriation, and attorney’s fees. Notice provision (§1833(b)) — employers must include immunity notice in employment/contractor agreements to be eligible for exemplary damages and fees against an employee.

Reverse engineering of a properly-obtained product is not improper means (Kewanee Oil v Bicron Corp, 416 US 470 (1974)).

Major trade-secret cases

Waymo LLC v Uber Technologies Inc (N D Cal 2017-2018). Anthony Levandowski left Google’s self-driving Waymo subsidiary in January 2016 after downloading approximately 14,000 files including LiDAR designs; founded Otto; Otto acquired by Uber August 2016 for $680M.WaymosuedFebruary2017.CasesettledFebruary2018mid-trialfor$245M in Uber equity. Levandowski indicted on 33 counts trade-secret theft August 2019; pleaded guilty to one count March 2020; sentenced 18 months August 2020; pardoned by President Trump January 2021.

Epic Systems Corp v Tata Consultancy Services Ltd (W D Wisc 2016). Jury awarded $940M($240M compensatory plus $700Mpunitive)forTCSemployeesusingEpi{c}^{\prime }sUserWebtodownloadconfidentialdocuments.CompensatoryandpunitivedamageslaterreducedbyJudgeConleyto$140M each ($280M total); affirmed in part by Seventh Circuit 2020.

Velodyne LiDAR v Quanergy Systems — multi-year LiDAR IP battles in California state court, ITC, and PTAB; both companies underwent SPAC mergers and significant value destruction. Velodyne merged with Ouster January 2023.

Mattel v MGA Entertainment (Bratz dolls) — Mattel won $100Mjuryverdict2008thenlostonretrial;MGAawarded$137.6M for malicious prosecution and trade-secret theft 2011 (later reduced); finally settled around 2020.

Apple has pursued multiple criminal and civil cases against former employees including Xiaolang Zhang (FBI arrested 2018 at SFO with stolen autonomous-vehicle files; convicted 2022, sentenced 120 days 2024) and Jizhong Chen (2019 indictment).

Non-competes and the FTC ban

Non-competition covenants protect trade secrets but face increasing state restriction (California, North Dakota, Oklahoma, Minnesota effective July 2023 generally ban; many states limit duration and scope). The FTC Non-Compete Clause Rule (16 CFR §910, adopted April 23, 2024) would have banned most worker non-competes nationally. Ryan LLC v Federal Trade Commission, No 3:24-cv-00986 (N D Tex Aug 20, 2024) — Judge Ada Brown vacated the rule nationwide as exceeding FTC §6(g) authority and as arbitrary and capricious; appeal to Fifth Circuit pending. The FTC dropped its appeal in early 2025; the rule is dead at the federal level but state non-compete reform continues.

Copyright law

Statutory framework

The Copyright Act of 1976 (Pub L 94-553), codified at 17 USC §§101-1401, replaced the 1909 Act. The Berne Convention Implementation Act of 1988 (effective March 1, 1989) removed the notice and registration requirements for copyright subsistence. The 1998 Sonny Bono Copyright Term Extension Act (Eldred v Ashcroft, 537 US 186 (2003) upheld) extended terms to life-of-author plus 70 years for individual works and 95 years from publication / 120 years from creation for works made for hire.

Subject matter (§102) — original works of authorship fixed in a tangible medium of expression. Categories include literary works, musical works, dramatic works, pantomimes/choreography, pictorial/graphic/sculptural works, motion pictures and other audiovisual works, sound recordings, architectural works. Originality requires only a “modicum of creativity” (Feist Publications v Rural Telephone Service, 499 US 340 (1991) held telephone white pages uncopyrightable for lacking originality, ending sweat-of-the-brow protection).

Exclusive rights (§106) — reproduce, prepare derivative works, distribute copies, perform publicly, display publicly, perform sound recordings publicly by digital audio transmission. §106A grants moral rights (attribution, integrity) to authors of works of visual art under the Visual Artists Rights Act of 1990 (VARA).

Registration with the US Copyright Office (USCO) is not required for copyright to subsist but is required to file an infringement suit for US works (Fourth Estate Public Benefit Corp v Wall-Street.com, 586 US ___ (2019) held registration occurs upon USCO action, not mere application). Registration within three months of publication or before infringement permits statutory damages ($750-$30,000 per work, up to $150,000 for willful) and attorney’s fees under §504-505.

Fair use

The four §107 factors: (1) purpose and character of the use (including commercial vs nonprofit and transformativeness); (2) nature of the copyrighted work (factual works receive thinner protection than highly creative); (3) amount and substantiality of the portion used; (4) effect on the potential market for or value of the copyrighted work.

Transformativeness (introduced by Pierre Leval Toward a Fair Use Standard, 103 Harv L Rev 1105 (1990); adopted in Campbell v Acuff-Rose Music, 510 US 569 (1994) — 2 Live Crew’s “Pretty Woman” parody) had become the lodestar of factor 1.

Google LLC v Oracle America Inc, 593 US 1 (2021). Google reimplemented approximately 11,500 lines of Java API declaring code in Android. Six-Justice majority (Breyer) held the copying was fair use as a matter of law — transformative because integrating Java into a new smartphone platform, the declaring code was an “interface” giving programmers familiar tools for new ends. Major precedent for software interoperability.

Andy Warhol Foundation v Goldsmith, 598 US 508 (2023). Lynn Goldsmith photographed Prince in 1981; Warhol made his “Prince Series” silkscreens in 1984. After Prince’s 2016 death, the Foundation licensed “Orange Prince” to Condé Nast. Goldsmith sued. Seven-Justice majority (Sotomayor) held the Foundation’s commercial licensing was not fair use; factor 1 looks at the use in question (commercial magazine licensing competing with Goldsmith’s own market), not merely whether the underlying work is transformative as art criticism in the abstract. Narrowed the transformativeness inquiry significantly. Justice Kagan dissented sharply.

Authors Guild v Google Inc, 804 F.3d 202 (2d Cir 2015) — Google Books scanning and full-text search of 25M+ books held fair use as highly transformative with no market substitution. Cert denied 2016. Authors Guild v HathiTrust, 755 F.3d 87 (2d Cir 2014) — similar fair-use win for academic library scanning.

AI training cases

The post-2023 wave of AI-training copyright suits is reshaping the doctrine. Key proceedings:

Thomson Reuters Enterprise Centre GmbH v Ross Intelligence Inc, 1:20-cv-00613 (D Del, Bibas J). Ross used Thomson Reuters’s Westlaw headnotes to train a competing legal-research AI. Judge Bibas’s February 11, 2025 summary judgment ruled against fair use — Ross’s use directly competed with Westlaw in the market, the headnotes themselves were creatively expressed, and the AI training was non-transformative. First major US court ruling against AI training fair use; appeal to Third Circuit pending.

New York Times Co v Microsoft Corp and OpenAI Inc, 1:23-cv-11195 (S D N Y, filed December 27, 2023). Alleges copyright infringement, removal of CMI under DMCA §1202, contributory infringement, common-law trademark dilution; cites memorized verbatim regurgitation of NYT articles. OpenAI moved to dismiss multiple counts; rulings in 2024-2025 narrowed but did not dismiss the core claims. Discovery and motion practice ongoing.

Getty Images (US) Inc v Stability AI Inc, 1:23-cv-00135 (D Del, filed February 3, 2023). Getty alleges Stability copied 12 million Getty images for training Stable Diffusion, and that output bears modified Getty watermarks. Parallel UK proceedings Getty Images (US) Inc v Stability AI Ltd, [2023] EWHC 3090 (Ch). Both pending.

Andersen v Stability AI Ltd, 3:23-cv-00201 (N D Cal). Class of visual artists; multiple rounds of motion to dismiss with the operative complaint narrowed but core copyright claims surviving 2024.

Concord Music Group Inc v Anthropic PBC, 3:23-cv-01092 (M D Tenn). Music publishers (Concord, Universal Music Publishing, ABKCO) alleged Claude trained on and reproduced song lyrics. Anthropic reached a partial settlement in January 2025 covering certain claims; broader case continues.

Tremblay v OpenAI, Silverman v OpenAI, Chabon v OpenAI (multiple author class actions N D Cal). The Authors Guild v OpenAI (S D N Y) consolidated several. Bartz v Anthropic and Kadrey v Meta (book-training cases) — N D Cal Judge Alsup’s 2025 rulings divided on training (potentially fair) vs reproduction in outputs.

DMCA

Digital Millennium Copyright Act of 1998 (Pub L 105-304). §1201 anti-circumvention prohibits bypassing technological protection measures (TPMs) controlling access to copyrighted works; the USCO conducts triennial §1201 rulemakings creating exemptions (most recent October 28, 2024 — eight exemptions including jailbreaking for security research, vehicle ECU diagnostics, video games abandoned by publishers). The §1201 reform Right to Repair Act (Wyden-Tillis) and similar proposals to narrow §1201 have not become law.

§512 safe harbor for online service providers (OSPs) from copyright liability for user-uploaded content if the OSP designates an agent, has a repeat-infringer policy, lacks actual knowledge or red flags, complies with takedown notices, and does not financially benefit from infringement when it has the right to control. The §512(c) hosting safe harbor underlies YouTube, Twitter, Facebook, Reddit, etc.

Repeat-infringer policy enforcement. BMG Rights Management v Cox Communications, 881 F.3d 293 (4th Cir 2018) and Sony Music Entertainment v Cox Communications, 93 F.4th 222 (4th Cir 2024) — Cox lost safe harbor for failing to terminate repeat-infringer subscribers; affirmed contributory infringement liability but vacated $1B damages award and remanded for retrial February 2024.

The USCO §512 Study (May 2020) found the safe-harbor system out of balance favoring OSPs; Congressional reform proposals (the SMART Copyright Act, the DIGITAL FAIR Act) have not advanced.

AI authorship

US Copyright Office Compendium of US Copyright Office Practices, 3d ed (2021, updated 2023) and the Statement of Policy on AI-Generated Works (March 16, 2023) — works lacking human creative authorship are not copyrightable. AI-assisted works require human creative input and registration claims must disclose and disclaim AI-generated material.

Thaler v Perlmutter, 687 F Supp 3d 140 (D D C 2023) — affirmed USCO refusal of registration for “A Recent Entrance to Paradise” image generated autonomously by Thaler’s AI; held human authorship a bedrock requirement; appeal pending in D C Circuit.

Zarya of the Dawn (USCO February 21, 2023 letter to Kristina Kashtanova) — USCO partially canceled registration of a graphic novel generated with Midjourney; the text and selection/arrangement of images were copyrightable as human-authored, but individual AI-generated images were not.

USCO Report Part 2 on Copyrightability (January 29, 2025) confirmed and refined these standards: AI outputs are not copyrightable absent sufficient human creative contribution; prompts alone are typically insufficient; selection, arrangement, and modification can support copyright in compilations and derivatives.

Adjacent

• contracts-and-ip
• federal-statutes-and-court-system
• scotus-justices-and-circuit-splits
• corporate-finance-and-markets
• microeconomics-foundations
• large-language-models