Key Takeaways | 2025 IP Outlook: Hot Topics for Patent, Trademark, and Copyright Holders

During this webinar, Sarah Bro, Sarah Hogarth, Aashish Kapadia, Ahsan Shaikh, and Michael Sitzman highlighted what patent, trademark, and copyright holders should take away from 2024 and set the stage for the year ahead.

Top takeaways included:

1. Artificial intelligence’s (AI) impact on innovations and patentability: The US Patent and Trademark Office’s (PTO) updated guidance on AI-related inventions reaffirms its existing patent eligibility guidance, emphasizing practical applications and technological improvements. Under Thaler v. Vidal, only natural persons – not AI systems – can be inventors. However, human inventors using AI tools can still qualify if the human inventors make significant contributions to the claimed inventions. AI systems are also impacting prior art searches. AI services can be used to produce millions of technical disclosures with the explicit goal of preventing future patentability, and AI-powered tools have greater capabilities than traditional methods, which effectively broadens the scope of prior art searches.
2. Digital replicas and rights of publicity: Proposed legislation, such as the federal NO FAKES Act of 2023, aims to protect individuals from unauthorized digital replicas created by AI. This includes liability for unauthorized use and platform responsibility. State laws, like Tennessee’s ELVIS Act and New York’s Digital Replica Contracts Act, further regulate the rights of publicity and the use of digital replicas, emphasizing the need for informed consent and legal representation in agreements.
3. Notable trademark decisions: Recent trademark cases, such as Vidal v. Elster and Pennsylvania State Univ. v. Vintage Brand LLC, highlight the importance of protecting personal names and university branding. The Supreme Court of the United States’ decision in Vidal v. Elster confirms that individuals cannot trademark another person’s name without consent, reinforcing the protection of personal reputation and goodwill.
4. Strategic considerations for intellectual property (IP) holders: IP holders should adapt to the evolving legal landscape by closely monitoring legislative changes, documenting human contributions in AI-related inventions, ensuring compliance with new digital replica regulations, and keeping note of precedential court opinions. Engaging with agencies during rulemaking processes and preparing for potential litigation are crucial strategies to navigate the uncertainties in patent, trademark, and copyright law.
5. Patent rights and enforcement strategies in the post-Chevron world: Following the Supreme Court’s decision in Loper Bright, courts will now consider agency views regarding statutory interpretations under Skidmore rather than agencies providing binding statutory interpretations under Chevron. US Congress may still delegate or direct agencies to fill statutory gaps, leaving a role for agencies to play in statutory interpretation. Additionally, previous agency interpretations from the PTO and the US International Trade Commission (ITC) may be subject to statutory stare decisis, such as in Wyeth Holdings Corp. v. Sebelius and Suprema Inc. v. ITC. Moving forward, entities will need to assess statutes for themselves to formulate “best reading[s]” positions and establish thorough records should agency decisions be challenged rather than relying on agency guidance or long-standing assumptions.
6. Recent developments in skinny labeling: There has been tension in pharma litigation for years regarding induced infringement in so-called “skinny labeling” cases in which generic pharmaceutical companies have been found liable for inducing infringement despite carving out the infringing uses or methods in their labeling, most prominently in GSK v. Teva. Recently, in Amarin v. Hikma, the US Court of Appeals for the Federal Circuit suggested that reliance on skinny labels alone may not be sufficient to state a claim for induced infringement absent additional inducement evidence. Given the tension between generic drug policy, the Federal Circuit, and generic manufacturer labeling practices, branded companies may wish to consider bolstering infringement theories in skinny labeling cases with claims of contributory infringement under 35 U.S.C. § 271(c).