July 2019 Update
California does not follow Ninth Circuit’s exception for narrow restraints on practicing a profession. A nonsolicitation of employee provision in a confidentiality or nondisclosure agreement and nonsolicitation of employee provision may be an improper restraint on a person’s ability to engage in that person’s profession even if in a narrow or limited way. AMN Healthcare, Inc. v Aya Healthcare Servs., Inc. (2018) 28 CA5th 923. See §3.16.
For employees who have legal representation in negotiating their agreements, the enforcement of the covenant not to compete may not violate a fundamental policy of California. NuVasive, Inc. v Miles (Del Ch, Sept. 28, 2018, No. 2017-0720-SG) 2018 Del Ch Lexis 329, at *14. See §3.18.
The Consumers Legal Remedies Act (CLRA) does not obligate a manufacturer to label its goods as possibly being produced by child or slave labor. Hodsdon v Mars, Inc. (9th Cir 2018) 891 F3d 857. See §3.42A.
Courts are split on whether the Uniform Trade Secrets Act (UTSA) preempts claims brought under California’s Comprehensive Computer Data Access and Fraud Act (CCDAFA). See §4.2.
Registration is made within the meaning of 17 USC §411(a) when the Register has registered a copyright after examining a properly filed application, not when an application for registration is filed. Fourth Estate Pub. Benefit Corp. v Wall-Street.com, LLC (2019) 586 US ___, 139 S Ct 881. See §§4.10, 7.51.
The Copperweld doctrine can cut both ways and “forecloses” a result that would allow sophisticated companies to evade Sherman Act §2 liability by spreading anticompetitive schemes over multiple affiliates. Arandell Corp. v CenterPoint Energy Servs. (9th Cir 2018) 900 F3d 623. See §5.8.
The U.S. Supreme Court clarified the “rule of reason” analysis for when a fact finder weighs all the circumstances of a case to decide whether a restrictive practice should be prohibited because it imposes an unreasonable restraint on competition. Ohio v American Express Co. (2018) 585 US ___, 138 S Ct 2274. See §5.66.
The Federal Circuit reversed its prior case law and determined Walker Process monopolization cases (i.e., federal antitrust liability arising from attempts to enforce a patent procured through fraud) do not arise under U.S. patent laws as required by the Federal Circuit’s jurisdiction granted in 28 USC §1295(a)(1). Xitronix Corp. v KLA-Tencor Corp. (Fed Cir 2018) 882 F3d 1075. See §5.74.
When color is functional (i.e., to increase visibility and facilitate safety compliance checks), it may still be protectable as trade dress if there are numerous other color shades that are equally or more visible and trademark protection of the color would not impose a significant non-reputation-related competitive disadvantage. Moldex-Metric, Inc. v McKeon Prods. (9th Cir 2018) 891 F3d 878. See §5.74.
Removal of copyright management metadata from photographs was not shown to violate the Digital Millennium Copyright Act (DMCA) because the mental state requirement of § 1202(b) was not satisfied. Stevens v CoreLogic, Inc. (9th Cir 2018) 899 F3d 666. See §7.7.
The DMCA’s safe harbor provision for ISPs is not available if the defendant ISP fails to implement its “repeat infringer” policy in a meaningful way. BMG Rights Mgmt. LLC v Cox Communications, Inc. (4th Cir 2018) 881 F3d 293. See §7.7.
The act of digitally remastering sound recordings, whether or not copyrighted originally, does not exhibit the minimum level of originality to be copyrightable apart from the original work. ABS Entertainment, Inc. v CBS Corp. (9th Cir 2018) 900 F3d 1113. See §7.23.
A copyright holder must do more than simply allege that a defendant is the registered subscriber of an IP address associated with infringing activity to state a claim for direct or contributory infringement. Cobbler Nev., LLC v Gonzales (9th Cir 2018) 901 F3d 1142. See §7.71B.
The term “full costs” in the Copyright Act means only the costs specified in the general costs statute codified at 28 USC §§1821 and 1920. Rimini Street v Oracle (2019) 586 US ___, 139 S Ct 873. See §7.79.
A patent owner may recover lost foreign profits. WesternGeco LLC v ION Geophysical Corp. (2018) 585 US ___, 138 S Ct 2129. See §8.21.
Once a postgrant procedure is instituted, the PTAB must decide the validity of all challenged claims. This ruling upended years of practice and forced the PTAB to revisit almost half of its pending cases. SAS Inst., Inc. v Iancu (2018) 584 US ___, 138 S Ct 1348. See §8.94A.
The Federal Circuit reviewed the analysis for determining whether jurisdiction exists over a foreign defendant in a patent case. Xilinx, Inc. v Papst Licensing GmbH & Co. KG (Fed Cir 2017) 848 F3d 1346. See §8.138.
A defendant may be sued for defamation in the state where the defendant made the defamatory statement, even if the defendant’s presence in the forum state was only transitory. Freestream Aircraft (Berm.) Ltd. v Aero Law Group (9th Cir 2018) 905 F3d 597. See §9.12.
The Communications Decency Act of 1966 (CDA) prohibits a court from issuing a depublishing directive to an Internet intermediary where the Internet intermediary is a nonparty to the libel case. Hassell v Bird (2018) 5 C5th 522. See §9.56J.
The U.S. Supreme Court held that arbitration agreements in which an employee agrees to arbitrate any claims against an employer on an individual—rather than on a class or collective—basis, are enforceable and do not violate the National Labor Relations Act (NLRA). Epic Sys. Corp. v Lewis (2018) 584 US ___, 138 S Ct 1612. See §13.79A.
The California Supreme Court redefined the test for the classification of workers as employees or as independent contractors. Dynamex Operations W., Inc. v Superior Court (2018) 4 C5th 903. See §13.86.