Trade Dress Brief on infringement of unregistered product trade dress, secondary meaning required for distinctiveness and protectiblity. Wal Mart Stores, Inc. v. Samara Bros., Inc., 120 S. Ct. 1339 (2000).
Color Brief on registration of a color as a trademark. Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995).
Descriptiveness Brief on behalf of Xerox Corporation. Issue involved whether numerical designators were presumptively descriptive in an intent to use application or whether, as we successfully argued, the descriptiveness determination had to await the actual use. Eastman Kodak Co. v. Bell & Howell Document Mgmt. Prods. Co., 994 F.2d 1569 (Fed. Cir. 1993).
Joint Ownership/Transfers filed brief on behalf of RIAA supporting petition for rehearing en banc in case involving transfer of ownership from one co-owner of a work to alleged infringer. Davis v. Blige, No. 05-6844, 2007 U.S. App. LEXIS 23375 (2d Cir. 2007).
Secondary Liability Brief on behalf of Recording Industry Association of America and National Music Publishers Association urging reversal of lower court decision involving proper standard for imposing secondary liability in the Internet context. Perfect 10 v. Google, 487 F.3d 701 (9th Cir. 2007).
Display Right Brief on behalf of American Society of Media Photographers, Inc., the Picture Archive Council of America, Inc., the British Association of Picture Libraries and Agencies, Stock Artists Alliance, Professional Photographers of America, the Graphic Artists Guild, the American Society of Picture Professionals and the National Press Photographers Association urging reversal of lower court decision involving scope of the public display right in the context of Internet transmissions, and second brief urging reconsideration en banc. Perfect 10 v. Google, 487 F.3d 701 (9th Cir. 2007).
Databases of Public Information Brief in New York Court of Appeals on behalf of American Business Media, LexisNexis, The National Association Of Realtors, The National Public Records Research Association, The Real Estate Information Professionals Association, and The Software & Information Industry Association, seeking reversal of lower court decision regarding application of New York state freedom-of-information law, N.Y. Pub. Off. Law §§ 84-90, to aggregation of public records by commercial databases. Data Tree LLC v. Romaine, 8 N.Y.3d 976 (N.Y. 2007).
Contributory and Vicarious Liability Brief on behalf of 14 digital technology providers in support of affirming the district court’s preliminary injunction against violation by Internet service of copyright rights of record companies and music publishers. A & M Records, Inc. v. Napster, 239 F.3d 1004 (9th Cir. 2001).
Preemption Brief on behalf of Information Industry Association, American Medical Association, and Association of American Publishers: shrink-wrap licenses not pre-empted by copyright law; licensor's rights enforceable under general contract principles. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).
Idea/Expression Dichotomy Brief in U.S. Supreme Court (on the merits) on behalf of Digital Equipment Corp., Gates Rubber Co., Intel Corp. and Xerox Corp.: application of idea/expression dichotomy to computer programs. Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807 (1st Cir. 1995), aff’d by an equally divided court, 516 U.S. 233 (1996).
Idea/Expression Dichotomy Brief in U.S. Supreme Court on behalf of American Intellectual Property Law Association: application of idea/expression dichotomy to computer programs. Id.
Idea/Expression Dichotomy Brief in U.S. Supreme Court (in support of petition for certiorari) on behalf of Intellectual Property Owners (IPO): application of idea/expression dichotomy to computer programs. Id.
Idea/Expression Dichotomy Brief in U.S. Court of Appeals on behalf of Apple Computer, Inc. Digital Equipment Corp., IBM Corp. and Xerox Corp.: application of idea/expression dichotomy to computer programs. Id.
Proof of infringement; preemption Brief on behalf of Computer and Business Equipment Manufacturers Assn., International Anticounterfeiting Coalition, Inc., Adobe Systems Inc., Apple Computer, Inc., Computer Associates International, Inc., Digital Equipment Corp., IBM Corp., Lotus Development Corp., Wordperfect Corp., and Xerox Corp.: proper test for filtration of protectible elements of computer software; non preemption of trade secret protection by copyright law. Gates Rubber Co. v. Bando Chem. Indus., 9 F.3d 823 (10th Cir. 1993).
Fair Use Brief on behalf of Computer and Business Equipment Manufacturers Assn., International Anticounterfeiting Coalition. Inc., Apple Computer, Inc., Autodesk, Inc., Computer Associates International, Inc., Digital Equipment Corp., Intel Corp., IBM Corp., Lotus Development Corp., WordPerfect Corp. and Xerox Corp.: applicability of fair use defense to intermediate copying of computer programming for reverse engineering. Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1993).
Non-literal Infringement of Software Brief on behalf of Association of Data Processing Service Organizations: non-literal copying of computer programs established as copyright infringement. Whelan Assocs. v. Jaslow Dental Lab, Inc., 797 F.2d 1222 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987).
Prisoners of War In these consolidated cases before the Supreme Court, individuals detained by United States military forces at Guantanamo Bay asked the federal courts of the United States to assume jurisdiction of their claims challenging the terms and conditions of their incarceration. We prepared a brief for the National Institute of Military Justice in support of petitioners, arguing that the treatment of these detainees is governed by applicable domestic and international law, which the Executive Branch is failing to apply. Rasul v. Bush and Al Odah v. United States, 542 U.S. 466 (2004).
We later prepared a Supreme Court brief arguing that the continued detention of Guantanamo Bay prisoners is not authorized by the law of war, and that the Government’s actions without court review endanger American soldiers and civilians. Boumediene v. Bush, 553 U.S. 723 (2008).
Jurisdiction In the Supreme Court's most recent term, we submitted a brief on behalf of former Judge Advocats General, Military Judges and Senior military lawyers in support of the power of military courts to review convictions on petitions for post-appellate relief. The Court supported our position in United States v. Denedo, 173 L. Ed. 2d 1235 (2009).