On April 5, 2021, the U.S. Supreme Court decided Google LLC v. Oracle America, Inc., holding that Google’s copying of a portion of an Application Programming Interface (API) for Java SE, in which Oracle was presumed to have a copyright for purposes of the Court’s decision, to enable programmers familiar with Java programming language to work with Google’s Android platform constituted “fair use” of Oracle’s software as a matter of law because it copied only those portions of computer code that were needed to allow programmers to work in Google’s new and “transformative” Android platform.
In 2005, Google acquired Android, Inc., and began developing a software platform for use on smartphones. Its developers wrote millions of lines of new code to build that platform. Google hoped to attract software developers to create applications for use on its new Android platform. Many software developers were already proficient with the Java programming language, and were specifically familiar with Oracle’s Java SE platform, which was primarily directed to programs for use in desktop and laptop computers. To allow those programmers to be able to easily work with the new Android platform, Google copied approximately 11,500 lines of code from the Java SE program — specifically from a tool called an “Application Programming Interface,” which allows programmers to use prewritten code to enable their software to perform certain functions.
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We’ve all been there. Maybe we find it in reviewing the chain of title for trademarks during due diligence. Maybe it’s something that another company filed that has nothing to do with us. Or maybe someone on your team made a typo (yup, no one is perfect!). But, however it happened, it’s there, in the USPTO records: an assignment inadvertently recorded against a registration that was not actually part of the assignment; a security interest recorded against the wrong application number; or a name change was erroneously recorded as a merger. Regardless of why or what, the bottom line is the same: there is an error in the chain of title for the application or registration. Oops! Now what? How do we get that error fixed and removed from the USPTO trademark records?
Like much of the federal government, the U.S. Copyright Office (the “Office”) is adjusting its practices and procedures in response to the COVID-19 pandemic. Unlike registration and recordation with the U.S. Patent and Trademark Office, copyright registration and recordation regulations still require the submission of hard copy materials in many instances. The Office’s technical infrastructure will not permit electronic filing of certain types of applications and cannot accommodate electronic submission of documents for recordation. The Office has been closed since March 13, 2020, with registration specialists working remotely. Hand deliveries are not accepted at this time; mail sent through the postal system or by commercial carrier is received at an off-site facility but will not be processed until the Office reopens.
In our recent post, we discussed the Seven Secrets of Security Interests relevant for owners or buyers of intellectual property. But after an IP owner grants a security interest in intellectual property, how do you make it official?
Welcome to the mysterious world known as perfection. That’s a fancy word for filing the right documents with the correct organizations so everyone knows that the lender has that security interest in intellectual property – and to make sure that the lender has priority over other parties who might have a future interest in the IP.
We recently shared our Seven Secrets of Security Interests with some tips about security interests in IP registered in the U.S. But often, U.S. IP goes hand-in-hand with trademarks, patents, and copyrights registered in Canada. Should security interests against Canadian IP be treated the same as in the U.S.?
We asked our colleague Silvia de Sousa from Thompson Dorfman Sweatman LLP in Winnipeg, Manitoba to describe the basics of security interests involving Canadian trademarks (as well as patents and copyrights). Silvia’s answers appear below. Enjoy!
While most of our posts relate to trademark matters, brand owners should also be aware of some common misconceptions about copyright law, which we debunk in the following article. This post is based on the authors’ article “Debunking Copyright Myths,” originally published in Landslide® magazine, Vol. 11, No. 6, July/August 2019, by the American Bar Association.
These days it seems that copyright law is everywhere, from lawsuits alleging that the multiplayer online battle game Fortnite infringed popular dance moves such as the floss,1 to the Ninth Circuit agreeing that Pharrell Williams and Robin Thicke’s song “Blurred Lines” infringed Marvin Gaye’s copyrighted hit song “Got to Give It Up.”2 As the Internet and technology have become omnipresent in our lives, the constant availability of copyrighted content—from streamed music to photos and posts on social media—has led to the perpetuation of copyright myths. Unfortunately, these myths and numerous others have caused misconceptions over the rights of the copyright holder and the obligations of the user.
Well, they’re not really secrets. But whether you’re representing the bank taking a security interest, an owner granting one, or a buyer who wants to ensure that outstanding security interests are released before a deal closes, here are a few things to keep in mind when it comes to IP security interests.
Last time we talked about some important Do’s of IP due diligence. But what might the buyer want to avoid during due diligence?
Here are the top 5 Don’ts to consider:
So you’ve been asked to help acquire a company with an extensive IP portfolio. Great! Now it’s time for that mysterious task known as “due diligence.” Due diligence is intended to confirm all of the assets that a buyer will obtain in an acquisition and to resolve any discrepancies before the deal closes.
If you have a brand, chances are you have a website. And if you have a website, chances are you have content on the website – probably some combination of text, music, photos, and graphics, including a logo that may be registered with both the USPTO and the Copyright Office. You’re probably taking steps to help ensure that infringing content isn’t posted to your website –right? In case you hadn’t heard of it, here’s an additional nifty, inexpensive way for you to help minimize liability even further: compliance with the Digital Millennium Copyright Act (DMCA). Continue reading