BizTech Law Blog

Following Executive Order 14179 from January 23, 2025 titled Removing Barriers to American Leadership in Artificial Intelligence, President Donald Trump’s administration has unveiled its awaited artificial intelligence (“AI”) roadmap to cement the United States as a front runner in the “race to achieve global dominance in [AI]”.

The plan, titled American’s AI Action Plan (the “Plan”), is a 28-page document that outlines more than 90 federal policy actions under three strategic pillars: (1) accelerating innovation; (2) building American AI ...

To hear more on this topic, business & IP attorney, Lindsey Mead, recently appeared on an episode of Expert Connexions to discuss the copyrightability of AI-generated content. See the interview here.

The United States Copyright Office (the “Office”) released the latest part in its Report on Copyright and Artificial Intelligence on January 29, 2025. Part 1, titled “Digital Replicas” was published on July 31, 2024 and discussed videos, images, and audio recordings that are manipulated to falsely depict individuals and information. This practice of creating ...

The Kansas City Chiefs and the Philadelphia Eagles are playing in Super Bowl LIX this Sunday, February 9. If the Chiefs win, this will be their third consecutive Super Bowl win, and, according to the Kansas City Star via reporter Blair Kerkhoff, the team can purportedly use Miami Heat team president and legendary NBA coach Pat Riley’s trademarked phrase “three-peat”.

Foster Swift attorney Mikhail "Mike" Murshak recently appeared on an episode of Michigan Reimagined, a podcast that discusses entrepreneurship and small business development and shares the stories of the people and organizations driving Michigan’s economic sustainability, to discuss the importance for a business to protect its intellectual property (IP).

With the influx of generative artificial intelligence (“AI”) tools and applications becoming readily available online, it is increasingly important to assess whether AI-generated works can obtain intellectual property protection. Specifically, in light of AI apps being able to create paintings, photographs, and illustrations from minimal prompting from an end-user, the United States Copyright Office (the “Copyright Office”) has had to consider whether such works can be copyrighted and to what extent.

Many businesses are using Artificial Intelligence (AI) tools in a variety of innovative ways to improve productivity and to save time and money. According to a 2023 Forbes article (forbes.com/advisor/business/software/ai-in-business/), 1 in 3 businesses plan to use ChatGPT to write their website content while 97% of business owners believe it will help their business.

Through tactical litigation practices, copyright trolls rely on copyright law to allege infringement and threaten major statutory damages upon unsuspecting defendants. The term “copyright troll” is an unflattering nickname for someone who manipulates the intellectual property (“IP”) laws to force a “toll” by way of a settlement payout on market participants.

Artificial intelligence (AI) is fast becoming an integral element in the operation of virtually every business and organization.

The AI Revolution is here! Startups across our region are using AI tools in innovative new ways. But could there be legal pitfalls you haven’t considered?

The ​U.S. and China compete for global dominance in the areas of tech and innovation; however, in an era of global firms and global citizens they must also learn to cooperate.

Due to the depth of information this article provides, the full article is linked below and is also featured under 'Publications' on this site.

As the old phrase goes: what’s in a name? For any business, a name is a brand. A name is tied to a reputation, a marketing strategy, and a presence within an industry. We have all laughed at off-brand products in grocery store aisles: Mountain Mist masquerading as Mountain Dew, Mr. Pibb stepping in for Dr. Pepper, or Cinnamon Crunch Squares replacing Cinnamon Toast Crunch. Other times, similar names represent companies in unrelated industries: Domino Sugar vs. Domino’s Pizza or Delta Airlines vs. Delta Faucets. But when does a company’s name cross the line into violating another company’s rights?

See the full article here.

This blog has since been updated with new information

What is eligible for patent protection?

In the U.S., what is known as a "general utility patent" or what most people typically imagine a patent to be, protects the use and function of an invention. Processes, machines, articles of manufacture and compositions of matter are all patent eligible. You cannot get a patent for an abstract idea or something that you discover in nature; you have to have a true physical invention or a process that creates a transformation of some kind in order to be eligible.

You have an idea, a million dollar invention! You have applied for and received a patent to protect that invention, but now what? One way to make money with your invention is to license your intellectual property rights to a third-party for production or use.

The United States Supreme Court recently struck down a provision of the Lanham Act that denies registration of disparaging trademarks.

On March 22, 2017, in a 6-2 decision, the U.S. Supreme Court affirmed a ruling by the Sixth Circuit Court of Appeals in the case of Star Athletica LLC v. Varsity Brands Inc. that two-dimensional graphic designs are entitled to copyright protection as “pictorial, graphic, and sculptural works” under the copyright law for useful articles under certain circumstances. It is the first time that the Supreme Court has addressed copyright protection for apparel, and the ruling bolsters legal protections for members of the fashion and apparel industries.

The Supreme Court recently decided a case involving the patent venue statute 28 U. S. C. §1400(b). The case, TC Heartland v. Kraft Foods Group Brands, No. 16-341, concerned flavored drink mixes made by TC Heartland, which is based in Indiana. Kraft sued it claiming patent infringement in Delaware, which has a high concentration of patent suits.

In 2016 Lansing, MI's Board of Water and Light fell victim to a cyber-attack that resulted in $2.4 million in costs, including a $25,000 ransom paid to the perpetrators. In the aftermath of the breach, BWL announced that it was filing for a $1.9 million insurance claim under its cyber insurance policy, including $2 million in covered losses, less a $10,000 deductible.

There is a lot at stake for businesses when it comes to cyber-crime, which is why more and more businesses are investigating and purchasing cyber insurance to hedge against the risks associated with cyber security and data privacy.

The U.S. Copyright Office recently implemented new rules (the “Rules”) governing the designation and maintenance of Digital Millennium Copyright Act (“DMCA”) agent information under a new electronic system. The Rules went into effect on December 1, 2016, so electronic designations should be filed as soon as possible. Service providers who fail to submit electronic designations will be ineligible for the safe harbor protections from copyright-infringement liability provided by the DMCA.

Organizations within the entertainment industry have a unique set of legal considerations. To better understand these considerations, Attorney John Mashni is presenting an introductory and advanced level course on the "Legal Aspects of a Feature Film," and a course on "The Law of Music" to the NALA Paralegal Association at their annual conference and expo. The NALA annual conference is taking place in Las Vegas July 13 through July 15.

President Obama recently signed the Defend Trade Secrets Act (the “Act”) into law. The Act creates a new cause of action - which became effective immediately - for trade secret misappropriation.

Prior to the Act, civil claims for trade secret misappropriation were primarily governed by state law. The Act creates federal jurisdiction for claims brought under the Act, which provides plaintiffs with the option to sue in federal court.

When it comes to copyrights, there are several common mistakes small businesses can make. If you are putting together marketing materials or a website and you download a photo online, often times that photo is protected by a copyright and is owned by someone else. This could lead to copyright infringement. Learn about a few other common copyright mistakes in the video below.

What is a trademark? A trademark is the identity that you have in the marketplace specifically associated with your goods or services. Any name, phrase, identity, symbol or logo your company uses in conjunction with selling your goods and services is a trademark. There are two types of trademarks. Learn more in the short video below.

Business owners need to understand copyrights. The video below continues Foster Swift's Legal Basics for Business Video Series by explaining the basics of copyrights. Learn more about copyrights and how they are important to your business in this short video clip.

Tech continues to test the elasticity of the law and use case precedent as its own disruptor. The Google Goliath, YouTube, is moving forward to pay several video content creators’ legal fees in copyright infringement disputes that use the defense of fair use.

A copyright is an expression of an original idea through words, music, pictures, computer programs, or any other method conveying ideas as works of authorship. The copyright is governed by federal law and is, unlike many of our laws, explicitly identified in the U.S. Constitution. A copyright gives authors the exclusive control of their works of authorship, including derivative rights. An author controls whether or not the copyright – work of authorship - may be used or displayed.

There is, currently, one minor exception: fair use.

There are four basic kinds of intellectual property that you can protect: trademarks, copyrights, patents and trade secrets. At the very early stages of starting a business you will want to protect your business name or brand through a trademark. Learn more about intellectual property basics and what you need to protect, in the Youtube video below.

Employers often seek to enter into a covenant not to compete with employees. In many cases, the covenant is the best way to protect the employer from future harm.  Also, many purchase agreements include covenants not to compete. Learn about covenants not to compete in the video below.

Sam Frederick and John Mashni, both attorneys for Foster Swift, will be presenting a live webinar on how to protect your business's intellectual property on Tuesday, September 15, 2015 at the Lansing Regional Chamber Board Room. The webinar will be held from 8 a.m. to 9:30 a.m.

They will discuss copyright, trademark and trade secret basics and the importance of monitoring and enforcing your intellectual property rights. Frederick and Mashni will also present the best practices for protecting your intellectual property.

For more information and to register for the webinar, click here (We have identified that the following link is no longer active, and it has been removed.)

So you just had a Eureka moment and your epiphany is going to make you millions as soon as it hits shelves. Learn more about patent basics in this short video including:

Why is a business name so important? A name is everything, it is your business's identity. When you select your business name, from a legal perspective, you need to come up with a unique name, a name that does not infringe on others rights. Unique names are the easiest to protect. Learn more about protecting you business name in the video below:

A copyright is automatically created upon the completion of an original work of authorship that is fixed in a tangible medium of expression. While an automatic copyright protects that work, a formal registration of copyrighted materials within three months of release to the general public provides extra benefits that can prove extremely valuable to the owner. These benefits serve to not only protect the copyrighted work, but also to provide additional remedies for the author in the event of infringement. Registering a copyright is as simple as submitting an application to the United States Copyright Office with a minimal filing fee and a copy of the copyrighted material. Then, once the work is registered, the benefits begin immediately.

Practicing entertainment law, I am repeatedly asked to read different film scripts or book manuscripts. Sometimes I agree, but I always preface my review with a specific conversation. Here is my initial answer to the question, "Will you read my script?"

Obtaining the proper music licenses helps protect your production from a copyright lawsuit, which can ultimately prevent the release of your final product. Watch the short video clip below for these three practical tips on music licensing.

1. Recognize the need to obtain a license for ALL music.
2. Know "sync" and "master use" rights.
3. Start the licensing process early.

A decision in a copyright infringement case concerning the song “Blurred Lines” casts ambiguity on the future of expression and copyright protection in the music industry. On Tuesday, March 10, an eight-person jury in Los Angeles concluded that Robin Thicke and Pharrell Williams, the performer and songwriter-producer of the most successful song of 2013, “Blurred Lines,” committed copyright infringement by using elements of the 1977 Marvin Gaye song, “Got to Give it Up,” without proper credit.

What do Google and WD-40 have in common? They can both attribute their continued success to trade secrets. It may be relatively easy to build a search engine or an aerosol can that sprays lubricant, but it is practically impossible to replicate the success of Google and WD-40. The two companies do not have patents on their products, precisely because that would require public disclosure of how to produce the product that has made them so successful. The benefit of a trade secret is that it continues in perpetuity. Coca-Cola's trade secret for its formula is over 120 years old. If Coke had decided to patent its formula instead, the patent would have expired over a century ago and the company would not be the giant it is today.

In order to qualify as a "trade secret," the information must have economic value and must be kept confidential by the company. This can be done through legal documents, compartmentalizing information, physical and digital security, and enforcement actions against leakers of information. Tech companies should consider the use of trade secrets if a product is one that is not easy to develop independently. Software code and chemical formulas are two prime candidates. Importantly, trade secrets are governed by state law, which can vary as to confidentiality requirements.

It is time that we talk about design patents. Generally, when I mention design patents to potential clients, they invariably protest that they have an “invention” and not a “design.” However, most “inventions” at least contain ornamental elements that have the potential for design infringement in the marketplace. In those cases, pursuing a design patent, by itself or in combination with a utility application, can be an effective and affordable way to secure valuable intellectual property protection.

To help you decide if a design patent might be right for you, I have devoted this post to answering the most common questions I get regarding design patents.

So you had one of those “Eureka!” moments a while ago and your epiphany is going to make millions as soon as it hits the shelves. This blog is about making sure you don’t lose your right to patent that million dollar idea by waiting too long to file a patent application.

Generally, an invention can only be patented if a patent application is filed within one year of the invention's first disclosure. A public disclosure can take the form of: 1) a publication, 2) a public use, or 3) an offer for sale. In the patent world, these events are called the statutory bars because they bar you from filing a patent on the idea if one year has elapsed since the event.

We have all seen patent numbers marked on all kinds of products. In fact as I sit and write this article I can report that there are several items in my office with patent markings including my hole punch, stapler, Dictaphone and the insoles in my shoes.

So why is that? There has got to be a reason, right?

The reason is that if products are not appropriately marked before they enter the stream of commerce, the damages that the manufacturer can receive in a patent infringement action against someone that has copied that product are reduced. 35 USC §287(a) provides:

Speed Date USA, Inc. is suing the online dating company Match.com for $5.65 million for allegedly breaching its contract and misappropriating trade secrets. In essence, the lawsuit claims that Match.com terminated the contract early and then breached its obligations to hold joint events. Match.com terminated the contract, according to the lawsuit, upon learning Speed Date's trade secrets. Match.com then allegedly began to run its own speed dating events without compensating Speed Date USA.

Trade secrets are commonly defined by state statues and generally consist of four elements for the information to constitute a trade secret. The elements of a trade secret are: (i) information; (ii) that has independent economic value; (iii) which is not generally known or readily available; and (iv) such information is subject to reasonable efforts to maintain its secrecy.

Among the many recent Supreme Court decisions, one decision regarding patents and self-replicating technology has a huge effect on farmers and the agricultural industry. 

Monsanto is an agriculture company headquartered in St. Louis, Missouri. Specifically, Monsanto genetically engineers seeds to yield herbicide-resistant plants that produce higher yields for farmers. One of its more popular products is its "Roundup-Ready" line of soybeans, which has been planted in over 50 million acres to date. The seed is attractive to farmers because it is herbicide-resistant. 

Patent-trolling is a growing nuisance for business owners, particularly start-ups. Patent trolls will buy numerous patents – or buy struggling businesses just for the patents – for the sole use of threatening infringement claims on businesses. Most of the time, the threats are unfounded and rarely state which patents are being violated or how the target's use of that patent amounts to infringement.

Vermont has passed a new law that targets these patent trolls and allows their targets to pursue lawsuits against them. The law allows for a cause of action against "bad faith assertions of patent infringements," but does not define what this phrase means. Instead, it provides the courts a list of characteristics to consider when determining if an infringement assertion was made in bad faith.

In 2007, Newegg adopted a strategy to deal with patent trolls: Never settle – ever.

One of the first times it applied this new strategy was against Soverain Software. While Soverain's website appears legitimate, it has never made a sale. Instead, it targets large, online retailers that use shopping cart checkout technology. Soverain claimed that through two patents, numbers 5,715,314 and 5,909,492, it owned the "shopping carts" present in nearly every online retailer's website.

Lansing-based XG Sciences, Inc. has launched a new generation of anode materials for lithium-ion batteries with four times the capacity of conventional anodes. The new anode material is produced through proprietary manufacturing processes and uses XG’s xGnP® grapheme nanoplatelets to stabilize silicon particles in a nano-engineered composite structure. The material displays dramatically improved charge storage capacity with good cycle life and high efficiencies.

This is great news for applications like smartphones, tablet computers, and other products that use rechargeable lithium-ion batteries. XG is working with battery makers to translate this exciting new technology into batteries with longer run-time, faster charging capabilities, and smaller sizes.

Click here for more information about this exciting development.

It might be illegal to sell those treasures.

The excitement of the hunt for the perfect item at the flea market or the thrill of selling your relative’s antique lamp at a great price could soon be dimmed by the Supreme Court of the United States. 

Crowdfunding, some would say, is the new social networking platform of raising money from people online.  While crowdfunding is a relatively new term and concept, traditional principles of law still apply.  Artists, startups and online creators using this new platform are governed by Intellectual Property principles.

Intellectual Property (IP) refers to the creations of the mind; and most commonly include ideas or inventions, literary and artistic works, symbols that identify your brand, names, logos and/or competitive business ideas or information.  Under this broad umbrella of Intellectual Property, there are generally four categories that govern the use of Intellectual Property:

1. Trademarks
2. Patents
3. Copyrights
4. Trade Secrets

Before pitching or disclosing your concept to an online crowdfunding community to raise money these four categories of protection and the potential resulting consequences should be thoroughly examined.  Failure to do so could result in the inadvertent theft, infringement or forfeiture of your IP rights.  Let's take a deeper look at these four categories.

Legislation allowing victims of trade secret theft to sue in Federal court was introduced in the Senate recently. The Protecting American Trade Secrets and Innovation Act of 2012, sponsored by Senators Herb Kohl, Chris Coons and Sheldon Whitehouse, grants companies the option of using Federal courts to bring a civil lawsuit against offenders. The proposed law helps companies maintain their global competitive edge by ensuring an effective and efficient way to recover their losses from trade secret theft.

In 2011, the Internet Corporation for Assigned Names and Numbers (ICANN) removed most restrictions on the names of generic top-level domains.  A top-level domain name is the letters after the “dot” in a website address.  The most common top-level domains are “.com” and “.org”.  Internet domains can now be any phrase and contain non-Latin characters (for example, Chinese, Arabic, etc.).

This is the third and final post in a series (Part 1: First-to-File; Part 2: Post Grant Review Proceedings) summarizing the most significant changes created by the Leahy-Smith America Invents Act (the "Act").  As you know, the Act was signed into law on September 16th.  Although hyped as a major change in the U.S. Patents system, the Act does not affect many of the fundamental tenants of U.S. Patent law.

This blog post focuses on: (1) new limitations on false marking claims, and (2) USPTO funding and fees.

As noted in my previous post (Part 1: U.S. Patent Reform: First-to-File), the Leahy-Smith America Invents Act has been signed into law.  The America Invents Act has been sold as "the biggest change in the U.S. Patents System since the 1950s."  The hype, however, is far from reality – as the Act does not affect many of the fundamental tenants of U.S. Patent law. 

This is the second of multiple blog posts that will summarize the most significant changes created by the America Invents Act.  My previous blog post addressed the adoption of a "First-to-File" system.  Today, I will discuss "Post Grant Review Proceedings."

On September 16th, President Barack Obama signed the Leahy-Smith America Invents Act into law.  The America Invents Act has been sold as "the biggest change in the U.S. Patents System since the 1950s."  However, the Act does not affect many of the fundamental tenants of U.S. Patent law and in fact is significantly modified from the bill that originally was proposed. 

This is the first of several blog posts that will summarize the most significant changes created by the America Invents Act.

Earlier this year, the Internet Corporation for Assigned Names and Numbers (ICANN), the body responsible for managing top-level domain name spaces (e.g., .com, .org, .edu and .gov), approved .xxx as a new top-level domain name space.  .xxx top-level domain names are intended for adult content.  However, as noted in a prior posting, the .xxx top-level domain could result in unwanted affiliation between your brand and the adult entertainment industry or create an opportunity for brandjackers to register "www.YourCompany.xxx."

What is "intellectual property" and why should it matter to your business? At the most basic level, "intellectual property" is one of an organization's most valuable assets. Intellectual property frequently differentiates extraordinary companies from "average" organizations. For that reason, IP must be zealously protected.  IP breaks down into four areas: patents, trademarks, copyrights, and trade secrets.

Let's take a look at a common scenario.  An employee named Ted leaves a company, let's say "Company A," and goes to work for another company in the same industry – "Company B."  While employed by Company A, Ted worked on key projects and had access to and developed many new and creative concepts.  When Ted joins Company B, he implements many of the new and creative concepts he helped develop while working for Company A.  Company B later commercializes some of these concepts developed and brought over by Ted.  Company A then sues Company B, claiming misappropriation of trade secrets.  A trade secret, of course, is any information that has economic value because it is not generally known to the public and is subject to efforts to keep the information secret.  This scenario is common - the characters in the real life saga of Mattel v MGA Entertainment are not.

Recently, I received a phone call from a client asking for advice on a reoccurring issue.  The client asked: “Do I have legal recourse against a competing website that is utilizing my trademark in its domain name?” 

The short answer is yes, but let's look at the reasons why.

Simply put, a domain name is a Web site's unique address on the Internet.  It can be used to identify organizations and other entities on the Web (e.g., http://www.nike.com).  Like any other advertising message, signage, or other communication, a domain name can infringe upon a trademark.  However, a claim of trademark infringement involves more than simply proving that your trademark is being used in another’s domain name.

As noted in a previous posting, on June 23, 2011, the America Invents Act (H.R. 1249) passed the U.S. House of Representatives. The U.S. Senate approved a similar bill in March (S. 23).  However, since the bills were not identical, the issue of patent reform must go before the U.S. Senate again. But what are the chances of that happening anytime soon? 

The America Invents Act recently passed the US House of Representatives by a vote of 304-117.  A similar bill was approved 95-5 in the Senate in March.  President Obama has pledged that he would sign a patent reform bill once it reaches his desk.  Therefore, it appears that it is only a matter of time before it is sent to the President to be signed into law.

How would you like to have the weight of the U.S. Federal Government behind you in combating piracy of your product?  And how would you like to have it for free?  If you answered no to both, perhaps you should reevaluate your business acumen.  For those who answered in the affirmative, please read on.

The free service is offered through the Office of Intellectual Property Rights (OIPR) of the U.S. Department of Commerce.  OIPR can assist your company in combating intellectual property piracy of your products.  After you have secured your intellectual property protections at home and abroad and taken local enforcement steps through the administrative or legal process, OIPR will step in on your behalf and work with the foreign government to target, confiscate and destroy the piracy items.

If you own or are operating a video or file sharing website that utilizes another's content (read another's copyrights) the following case presents you with a valid defense.  If you are the user whose copyright has been infringed, this law is worth knowing before proceeding with costly litigation.

Veoh Networks - a video hosting website - sought protection under the Digital Millennium Copyright Act's safe harbor provision against a user's infringement claims.  The user claimed Veoh (1) knew of and failed to remove infringing videos uploaded by other users; (2) had the ability to control infringing activity on its system; and (3) that its infringer policy was inadequate.

Have you ever taken the time to Google your company name?

It might be worth your time. If you find that your competitors are more prominently displayed in the tan sponsored link box or along the right side of the search page, you may be able to stop these companies from purchasing your company's trademarks as Google Adwords.

A new land-grab is occurring on the World Wide Web.

There are presently more than 90 million domain names registered with the .COM extension. Now, 25 years after the launch of the .COM domain extension, domain space is crowded and availability is sparse; thereby, making the selection of a suitable domain name difficult.

Recently, however, a new .COM domain name competitor has entered the fray. On July 20, 2010, in a described "landrush event," the ".Co" domain became available worldwide via participating registrars (e.g., Go Daddy). In the first 24 hours, nearly 250,000 .Co domain names were registered.