Avoiding Demurrer: Properly Pleading Inequitable Conduct
David Lien
Properly pleading inequitable conduct claims is a challenge, a challenge that can be met with early due diligence and attention to detail in your pleading. The leading case that set forth the legal framework for inequitable conduct, Therasense, Inc. v. Becton, Dickenson and Co., 649 F.3d 127 (Fed. Cir. 2011), has since been clarified by Judge Lund in a recent case, ArrMaz Products, Inc. v. Rieth-Riley Construction Co. Inc., 3:23-CV-778-GSL-MGG (N.D. Ind. 2024). Of great interest in Rieth-Riley is Judge Lund’s finding regarding the proper standard to be met when pleading intent, i.e., that “the pleading stage only demands the lower standard of a reasonable inference,” but the whole opinion is worthy of study.
To read the full article, click here.
The Importance of Prong Two of Step 2A for AI inventions: A Practical Guide
Sean Lee
Under the direction of President Biden’s executive order on artificial intelligence (AI), the United States Patent and Trademark Office (USPTO) issued a guidance update on the subject matter eligibility analysis “to promote clarity, consistency, and address innovation in AI and critical and emerging technologies.” The 2024 Guidance Update primarily focuses on two issues: whether AI-related inventions are patentable and the applicability of the subject matter eligibility for AI inventions.
To read the full article, click here.
Court Strikes Down FTC’s Non-Compete Ban
Danny David, Scott Nelson, David Wille
On July 10, 2024, we sent an update informing readers that Judge Ada Brown of the United States District Court for the Northern District of Texas had entered a preliminary injunction blocking the Federal Trade Commission (“FTC”) from enforcing its non-compete ban, set to take effect on September 4, 2024, against the plaintiffs in the case before the court. While that preliminary injunction was limited, Judge Brown wrote that the court’s final adjudication on the merits should occur on or before August 30, 2024, and she included language in her opinion that raised many employers’ hopes that the court would strike down the ban. True to her word, yesterday, the court entered an order blocking the FTC’s ban on a nationwide basis.
To read the full article, click here.
The European Union's Artificial Intelligence Act: Uncharted Territory for General Purpose AI Systems
Alexander Hendry, Paul Lugard, Parker Hancock
The European Union has officially adopted the final text of its comprehensive Artificial Intelligence Act (AI Act). The European Union has adopted a “risk-based approach,” with specific provisions governing general purpose AI systems (GPAIs). These cutting-edge technologies have the potential to be revolutionary but have also caused considerable controversy in their relatively short time in the spotlight.
This article provides an overview of some of the key issues raised by the AI Act’s application to GPAIs.
To read the full article, click here.
This article was previously published in the Global Regulatory Developments Journal in the September-October 2024 issue.
This Month: Our Take on AI
Joseph Cahill
NIST Releases Guidance on AI Development and Standards: On July 26, 2024, the National Institute of Standards and Technology (NIST) issued four guidance documents related to artificial intelligence (AI) development and implementation, as directed by AI Executive Order 14110. These non-binding guidelines aim to establish best practices for secure AI development and global standards. The documents include:
- "Artificial Intelligence Risk Management Framework: Generative Artificial Intelligence Profile" (RMF GAI): This document outlines risks associated with generative AI and provides a framework for organizations to govern, manage, and mitigate these risks across various sectors.
- "Secure Software Development Practices for Generative AI and Dual-Use Foundation Models" (SSDF): An update to previous NIST software development guidance, this document offers recommendations for secure development practices specific to generative AI systems throughout the entire AI model lifecycle.
- "A Plan for Global Engagement on AI Standards" (AI Plan): This plan provides directives for the worldwide development and implementation of AI-related consensus standards, emphasizing context-sensitive, performance-based, and human-centered approaches.
- "Managing Misuse Risk for Dual-Use Foundation Models" (MMRD): Open for public comment until September 9, 2024, this document provides comprehensive guidelines for identifying, measuring, and mitigating misuse risks associated with powerful AI models.
While not legally binding, these guidelines will likely influence industry standards. I provide more details about these developments here: "NIST's Latest Guidance on Secure AI Development and Global Standards."
August 2024 Intellectual Property Report Recap
In case you missed it, here is a video recap of our August 2024 Intellectual Property Report that looked at:
- Be an Expert: Precedential PTAB Decision on Conclusory Expert Testimony
- When Algorithms Meet Regulators - The Unexpected Vulnerability of AI Trade Secrets
- Redesigning Obviousness: Federal Circuit’s New Test for Obviousness in Design Patents
- This Month: Our Take on AI
