July 2021

Taylor Swift is Back Battling in California Federal Court

Takeaway: Commonly used urban language may become a part of the public domain.

After the Ninth Circuit determined “haters gonna hate” and “players gonna play” had enough originality to be afforded copyright protection, Taylor Swift is back in court filing a motion for summary judgment.

Swift now claims her song “Shake It Off” did not infringe Sean Hall and Nathan Butler’s “Playas Gon’ Play” due to the lyrics “haters gonna hate” and “players gonna play” being phrases in the public domain. She claims they are considered urban vocabulary, and the “songs are not substantially similar in protected expression and also because they lack substantial similarities probative of copying.”

It will be a surprise if after Swift’s motion to dismiss was denied, the California Federal Judge grants her summary judgment.

Photo Credit: www. glamour .com /story/taylor-swift-shake-it-off-outfits


USPTO Seeks Public Comments on Patent Eligibility and its Impact on Innovation and Commerce

Takeaway: From now until September 7, the USPTO wants to hear public comments towards improving patent eligibility and its impact on innovation.

The United States Patent and Trademark Office (USPTO) is asking for public comments on the current state of patent eligibility law and its impact on commerce, in response to requests from a bipartisan group of senators. The Senate wants to take a serious look at patent eligibility to potentially fix issues that particularly impact industry and commerce, specifically since the Supreme Court’s 2016 decisions in Mayo and Alice and subsequent Federal Circuit decisions applying the Supreme Court’s legal framework.

The comment period is open until September 7th, after which a report from the senators is due in March of 2022. If you are interested in sending in a helpful comment, instructions on how to do so can be found HERE.


The U.S. Court of Appeals for the Federal Circuit Affirms the Pleading Requirements for Patent Infringement Cases

Takeaway: Plaintiffs of patent infringement cases should take careful notice of the allegations in their complaint. Be sure to raise enough factual allegations so the case will not be dismissed.

The Court of Appeals for the Federal Circuit in Bot M8 LLC v. Sony Corporation of America reaffirmed that infringement for patent cases need not be pleaded “on an element-by-element basis” and rejected the district court’s finding of any such blanket requirement.

The Court emphasized that “patentees need not prove their case at the pleading stage” and, thus, found that the district court had erred by misapplying Iqbal and Twombly. For a complaint to pass muster under Iqbal and Twombly, it must provide sufficient factual allegations to “articulate why it is plausible that the accused product infringes the patent claim.” Thus, “a patentee may subject its claims to early dismissal by pleading facts that are inconsistent with the requirements of its claims.”

The court ultimately determined that because Bot M8’s allegations conflicted with claim 1 of their own patent it was “not even possible, much less plausible” for Bot M8 to prevail because of the inconsistency between its allegations and its patent. Thus, by pleading “too much rather than too little,” Bot M8 “essentially pleaded itself out of court.”


California Attorney General Announces First-Year Enforcement Update on the CCPA

Takeaway: California Attorney General Bonta has taken significant steps in enforcing the CCPA in the past year, as well as launching a new online Consumer Privacy Tool, making it easier for consumers to request their personal information not be sold.

The California Consumer Privacy Act (CCPA) has made headlines since going into effect on January 1, 2020. Recently, on January 19, 2021, California Attorney General Bonta announced the enforcement efforts taken by his office in the past year.

Most notably, he reported that upon receiving a notice of alleged violation, 3/4 of those violators changed their business practices to become compliant with the law. Moreover, they did this within the required 30-day period set by the CCPA. The remaining businesses yet to cure their practices are reported to be either under an active and ongoing investigation or have already taken a few steps in the right direction. In the words of California Attorney General Bonta, “Enforcement of the CCPA marks an enormous step for privacy protection in California, particularly at this time after the COVID-19 pandemic moved so much of our lives online. We’re happy to announce that we are seeing great progress with our CCPA enforcement, but there’s more work to be done.”

The Attorney General’s office also announced the launch of a new online Consumer Privacy Tool that will let consumers notify businesses directly that do not have a conspicuous “Do Not Sell My Personal Information” link on their homepage. The purpose of this tool is to make it even easier for consumers to request for their personal information not to be sold.

For more information about the CCPA and how it may affect your business, contact one of our qualified attorneys to assist you.


China Passes New Data Security Law

Takeaway: China has established a globally sweeping Data Security Law for companies doing business in China.

On June 10, 2021, China approved its new Data Security Law (DSL), set to go into effect on September 1st. Many are nicknaming this groundbreaking law as “China’s GDPR.”

The law will be similar to the GDPR (the European Union’s General Data Protection Regulation) in its global sweeping effect, as the DSL will also impact multinational companies. The DSL applies to those doing business in China—especially technology companies processing personal data. It is clear that those doing business in China will need to pay close attention to the new requirements set by the law.


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