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    4. World IP Day 2023 — Trends we’re watching

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    Article

    World IP Day 2023 — Trends we’re watching

    April 25, 2023

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    By Shawn Hansen, Ellie Heisler, Linda Huber, Nicole Kling, Ph.D. and Erica Van Loon

    Insights on the intellectual property trends and issues impacting leaders, inventors, creators, and artists across industries.

    In celebration of World Intellectual Property Day, Nixon Peabody Intellectual Property practice members share insights on the emerging IP prosecution, litigation, and transaction issues impacting academic institutions, businesses, and innovators. 

    Linda Huber, Technology Transfer Team Co-Leader  

    The IP world is waiting for SCOTUS interpretation on “make and use” versus “full scope” as they apply to the patent enablement requirement. Until then, we recommend delving into invention when drafting new applications to provide details and examples with an eye toward meeting the “full scope” of the claimed embodiments.

    Seth Levy and Vince Capati, Accelerators & Incubators Team Co-Leaders 

    Disruptive IP will enable small- and mid-size institutions to foster innovation in new and unexpected ways. We see this now as accelerators/incubators leverage creative IP-ownership models to develop technology from academic and research centers. 

    Nicole Kling, Agribusiness Team Co-Leader

    The world of patent-eligible subject matter is ever-evolving. For example, the recent Chromadex decision offers further guidance on claim construction for inventions relating to natural products or phenomena.

    Erica Van Loon, IP in the Metaverse Team Co-Leaders 

    As emerging technologies become increasingly accessible to the general public, the right of publicity is often overlooked.

    New forms of creative works can be generated using personal data that includes an individual’s image and likeness. This could result in outputs that are easily recognizable as resembling a specific individual. 

    Similarly, the rise of innovative and artistic technologies such as NFTs often does not take the right of publicity into account. As a result, the use of these technologies can lead to the exploitation of personal identity for commercial gain without the individual’s consent. 

    The growing trend toward emerging technologies highlights the need for greater consideration and protection of the right of publicity. It is important to recognize and address these concerns to ensure that individuals’ rights are respected in the digital age.

    Ellie Heisler, Sports & Sporting Goods Team Co-Leader 

    AI-powered tools and their adoption will have massive legal implications for copyright ownership, right of publicity, approvals and compliance with the FTC endorsement guides, union rules and regulations, and beyond. 

    For example, such tools allow filmmakers and marketers to replace real-life actors and content creators with AI versions of their voice, eliminating the need for voiceover, dubbing, and in-person production.

    Shawn Hansen, Intellectual Property Partner  

    Clients and IP attorneys often overlook claims for false advertising and unfair competition that may arise from the same body of operative facts in IP disputes between competitors. 

    A competitor’s commercial advertising or other promotional activity is a common way that IP owners learn of claims for infringement of patents and trademarks. It can easily get lost that the advertising or promotion itself may also be actionable under the Lanham Act, and related interactions with customers may be actionable under state unfair competition laws. 

    Complementing patent and trademark infringement claims with false advertising and unfair competition claims can enhance settlement bargaining power and the remedies available in competitor IP disputes.

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    The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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