IP Law Daily, WORTH NOTHING—Other IP law developments, (Oct 7, 2022)

By WK Editorial Staff

A periodic roundup of other items of interest to the Intellectual Property community.

COPYRIGHT NEWS: An Illinois jury has awarded tattoo artist Catherine Alexander a $3,750 in actual damages for copyright infringement resulting from a realistic depiction of five tattoos she inked on the body of professional wrestler Randy Orton, who appears in three of the “WWE 2K” series of video games. In March 2020, the court allowed the infringement claims to proceed Take-Two Interactive Software, Inc., 2K Games, Inc., 2K Sports Inc., World Wrestling Entertainment, Inc., Visual Concepts Entertainment. The jury also found that the defendants did not profit from use of the tattoos in the video games and that they failed to prove fair use (Alexander v. Take-Two Interactive Software, Inc., September 30, 2022, Yandle, S.).

USPTO PATENT NEWS: The USPTO is seeking initial public comments on proposed initiatives directed at bolstering the robustness and reliability of patents to incentivize and protect new and nonobvious inventions while facilitating the broader dissemination of public knowledge to promote innovation and competition. The request for comments (RFC) addresses a variety of topics, including prior art searching, support for claimed subject matter, request for continued examination (RCE) practice, and restriction practice, and certain initiatives related to these topics that are outlined in the USPTO's July 6, 2022, letter to the Food and Drug Administration (FDA). The RFC also seeks comments on the questions set forth in a June 8, 2022, letter to the USPTO from six United States Senators. The agency noted that it is studying additional topics and initiatives to bolster the robustness and reliability of U.S. patents and will seek public comments on those separately (87 Fed. Reg. 60130, October 4, 2022).

USPTO PATENT NEWS: The USPTO announced that it extending the Fast-Track Appeals Pilot Program until July 2, 2024. The Fast-Track Appeals Pilot Program permits appellants with a docketed ex parte appeal before the Patent Trial and Appeal Board (PTAB or Board) to file a petition to expedite the review of the appeal. The Fast-Track Appeals Pilot Program sets a target of reaching decisions on ex parte appeals within six months from the date they enter the program. The program was initiated on July 2, 2020, and previously extended on July 12, 2021. Additional information on the program is available on this PTAB webpage (87 Fed. Reg. 60135, October 4, 2022).

USPTO PATENT NEWS:Starting October 11, all PTAB E2E users will migrate to the new P-TACTS platform. In anticipation of this deployment, PTAB E2E system will be unavailable starting Sunday, October 9 at 5 p.m. ET through Monday, October 10 at 11 p.m. ET. A list of features of the P-TACTS portal is available here. In order to access the new P-TACTS system, users must have a My USPTO account. More information and support regarding MyUSPTO account is available on this webpage.

USPTO TRADEMARK NEWS: The USPTO announced that it has suspended several attorney-sponsored USPTO.gov accounts for violation of the Trademark Verified Account Agreement and the USPTO Website Terms of Use. The U.S. attorneys abused the USPTO.gov sponsorship tool by sponsoring non-U.S. licensed foreign attorneys and non-attorneys. Only U.S.-licensed attorneys can sponsor accounts for support staff who are directly employed by the attorney, their law firm, or their company. On September 16, the USPTO sent a letter to Julian Haffner of YK Law and a letter Grace Lee Huang of Meritech Law, notifying them of the violations and the sponsored account suspension orders. Both attorneys allowed an India-based firm, Lyptus Partners, to use their names and credentials in trademark submissions. The USPTO has warned against foreign solicitation scheme on this webpage.

USPTO TRADEMARK NEWS: has issued a final rule to incorporate classification changes to the Nice Classification adopted by the contracting parties to the Nice Agreement, an international treaty recognized by over 90 countries. The Nice Classification simplifies and streamlines the drafting of goods and services in trademark applications for customers around the world. This rule adds new services to, or deletes existing services from, the class headings for Class 36 and Class 45 to further define the types of services appropriate to the classes. These changes are included in the Nice Classification, 12th edition, version 2023 (NCL 12-2023), which takes effect on January 1, 2023. These changes will also be available in the USPTO’s Trademark Next Generation ID Manual on January 1, 2023.

Attorneys: Anthony R. Friedman (The Simon Law Firm, P.C.) for Catherine Alexander. Dale M. Cendali (Kirkland & Ellis LLP) for Take-Two Interactive Software, Inc.

Companies: Take-Two Interactive Software, Inc.; 2K Games, Inc.; 2K Sports Inc.; World Wrestling Entertainment, Inc.; Visual Concepts Entertainment

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