Expert Analysis

• Opinion

  Fed. Circ. Should Redefine Functionality In Design Patents

  

  The Federal Circuit should establish a framework for identifying the relevant article of manufacture to which functionality analysis applies, in order to enhance doctrinal clarity and better reflect the statutory foundations of design patent law, say attorneys at Knobbe Martens.

• Where AI Patent Risk Begins And How Records Can Help

  

  The Federal Circuit's recent decision in Dental Monitoring v. Align highlights the importance of documenting how artificial intelligence-assisted inventions work, and how humans contributed, as such records can support inventorship, written description, eligibility and definiteness requirements, say attorneys at Sterne Kessler.

• 2nd Circ. Tylenol MDL Ruling Clarifies Court Gatekeeper Role

  

  The Second Circuit’s recent decision in multidistrict litigation over alleged links between Tylenol and developmental disorders, holding that the trial court improperly excluded expert witnesses, preserves meaningful judicial gatekeeping while making clear that judges may not resolve legitimate scientific disputes themselves, say attorneys at Lowenstein Sandler.

• Series

  Law School's Missed Lessons: Cultivating Good Judgment

  

  Law schools generally overlook the role that solid judgment skills play in real-world practice, but attorneys can bridge the gap by strengthening their abilities to assess a case’s strengths and weaknesses, develop and execute effective strategies, and provide clear recommendations to clients, says Manny Caixeiro at Venable.

• What To Expect From Colorado's New Artist Co. Structure

  

  Colorado's newly established class of artist companies, or A-Corps, provides a useful structure for small-scale ventures, but challenges could arise for more complex business plans, and limitations on investor participation may limit widespread adoption, say attorneys at Armstrong Teasdale.

• 9th Circ. Comet Ruling Spotlights Trade Secret Proof Burdens

  

  The Ninth Circuit’s recent decision to vacate a $40 million verdict awarded to Comet Technologies in its trade secret dispute with XP Power underscores how the burden of proof differs between federal and state law, giving litigants a fresh perspective on several issues, including how a jury should be instructed, say attorneys at Cooley.

• What Trial Teams Should Know About AI Jury Research Tools

  

  Using artificial intelligence for jury research is quickly becoming part of the litigation consulting landscape, and can be a useful part of a case assessment toolkit — but litigators must understand what these systems are built to measure, and what conclusions can reasonably be drawn from their output, say Bill Kanasky and Steve Wood at Courtroom Sciences.

• Attorneys Using AI May Have Ethical Duty To Redact Docs

  

  The trajectory of legal ethics guidance in recent years strongly suggests that as redaction technology becomes more accessible, the failure to use it when uploading highly confidential materials into artificial intelligence tools will become increasingly difficult to defend as reasonable, say attorneys at Lewis Brisbois.

• Cannabis, Psychedelics Boom Raises IP Hurdles

  

  Recent data regarding patent filing activity and litigation in the cannabis and psychedelics markets indicates that as commercial interest accelerates, the scope of publicly accessible prior art is also expanding, setting a higher bar for novelty and nonobviousness in patent applications, say attorneys at Sterne Kessler.

• Series

  Juggling And Unicycling Make Me A Better Lawyer

  

  Because I juggle (sometimes with fire) and ride the unicycle, friends and family used to joke that I should join the circus, but I pursued the practice of law instead and learned that my hobbies benefit my profession in several important ways, says Morgan Eddy at Smith Currie.

• How Quantum Risk Could Reshape Legal Obligations

  

  As federal policy, National Institute of Standards and Technology standards, and major market practice converge around postquantum cryptography, companies may need to safeguard their data now to prove they took reasonable measures to protect trade secrets from quantum computers that do not exist yet, say attorneys at MoFo.

• Expert Witness's ChatGPT Use Highlights New AI Risks

  

  An expert witness's recent use of ChatGPT in multidistrict litigation involving 3M to formulate most of his opinion illustrates the lack of clear rules for how an expert may use generative AI in an opinion, expanding both offensive and defensive discovery considerations, says David Shargel at Bracewell.

• Fed. Circ. Dental IP Ruling Reinforces Prior Art Framework

  

  The Federal Circuit's recent decision in Dental Monitoring v. Align Technology reaffirms the necessity of substantive written description support for establishing an earlier effective prior art date under the America Invents Act, and aligns Patent Trial and Appeal Board practice with district court litigation, say attorneys at Morgan Lewis.

• Justices' Hikma Reasoning May Extend Well Beyond Pharma

  

  The active steps framework announced by the U.S. Supreme Court in its Hikma v. Amarin decision, finding that Amarin failed to plausibly allege inducement of infringement, has the potential to reshape how courts evaluate inducement claims across patent, copyright and other doctrines, say attorneys at BCLP.

• An Inside Look At Squires' Discretionary Denials

  

  A deep dive into the discretionary denials issued by U.S. Patent and Trademark Office Director John Squires since he took over last year identifies trends in commonly asserted arguments and how they correlate with institution outcomes, say attorneys at Kirkland & Ellis.