Author: NCBA BLOG (page 1 of 30)

Aliens Invade New Mexico: Higher Education and Cyber Security At a Crossroads

By David Furr

By the time you count 8 seconds or read the first section of this article, 150 new devices have been connected to the Internet of Things.  That means 61,500 per hour; 1.5 million per day.  Currently 7.4 billion devices are connected to the IoT, more than humans on the planet.  By 2020, estimates of connected devices range from 26 billion to 75 billion.[1]

The modern student and faculty are inextricably and innocently connected to the IoT.  Their behavior will only exponentially increase the security threat to the educational institution

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Of Interest: Playwright Wins Copyright Dispute, Board Blows the Whistle, Dickerson v. WB Studio

Sports & Entertainment Law

Members of the Sports & Entertainment Law Section found the following recent third party articles to be of potential interest to the Section:

Joy in Who-Ville? Playwright Wins Fair Use Copyright Dispute in Parody of “Grinch”

Board Blows the Whistle on Independent Contractor Status for NBA Video Production Crew

Dickerson v. WB Studio Enterprises, Inc., et al.

Can NFL Players be Fired, Disciplined for Protesting During National Anthem?

Mark Ronson Sued For Infringing 80’s Funk “Masterpiece”

Politics in the Workplace: Do NFL Players Have Freedom of Speech To Protest at Games?

Court Holds that Fantasy Sports Companies Did Not Violate Players’ Rights by Using Their Names and Likenesses

Hackers Score Touchdown: NFL Players Association Hit With Data Breach

Doubling (& Tripling) Down on Trademark Protection For Secret Menu Items–In-N-Out v. Smashburger

No “Contract By Tweet” for Plaintiff Who Pitches Movie Idea via Social Media  

Advanced stages of CTE found in Aaron Hernandez’s brain

‘Please don’t make us call your mom,’ Netflix tells pop-up bar owners in cease-and-desist letter  

N.C.A.A. Coaches, Adidas Executive Face Charges; Pitino’s Program Implicated

King’s College Football Coach Sued For Copyright Infringement For Retweeting A Book Page 2 Years Ago

Spectrum Center rebounds after HB2 repeal

Charlotte Hornets could score larger TV deal in 2018

Laurene Powell Jobs buys stake worth around $500 million in DC sports empire

Lawsuit accuses Kmart of copying Halloween banana costume

CBS fires lawyer over Facebook posts calling Vegas shooting victims likely ‘Republican gun toters’

‘Tip of the iceberg’: More charges expected this month in college basketball scandal

New true crime TV series should reopen debate over cameras in the courtroom

News Flash From the N.C. Secretary of State

The North Carolina Secretary of State’s office would like to share the following announcements:

New Secretary of State Website Design is On the Way

Look for our new  website design this fall.

We are updating the look and feel of our website to improve your experience. The new website design, created under the statewide Digital Commons initiative, features:

  • Improved navigation,
  • Modern design,
  • Mobile device optimization, and More!

We will provide additional information about the roll-out of the new design on our current website front page.  We will also be supplying information about the roll-out in a variety of other ways over the coming months.

Our Corporations Division is now Business Registration

On Sept. 1, the Corporations Division began rebranding its name to the Business Registration Division. This improvement is in response to growing needs of the business community. Business Corporations now represent a minority of the entities we administer, given the growth of limited liability companies, nonprofit corporations, and partnerships.

The new title should minimize confusion about the name and make internet searches for information easier. This change will be spreading across all N.C. Secretary of State materials and platforms in the weeks ahead.

So please, make a note: The Business Registration Division is now your destination for your business registration needs in North Carolina.  Your bookmarks do not need to change.


Pro Se Responsive Pleading By Corporation/LLC Insufficient To Avoid Default

By Matthew D. Lincoln

North Carolina statute N.C.G.S. Section 84-5 prohibits corporations and limited liability companies from practicing law in this state. This prohibition occasionally arises in the litigation context when an entity—usually domiciled in another state—serves a pro se answer (or other response) to a complaint filed in a North Carolina court. Given that a plaintiff’s goal usually is to obtain a judgment as quickly and efficiently as possible, what should the plaintiff do in this situation?

In short, the plaintiff should file a motion asking the court (i) to strike the defendant’s responsive pleading, and (ii) for entry of default and default judgment. Seeking all such relief in one motion may seem aggressive in light of the court’s inclination to have disputes decided on the merits. Fortunately, however, for plaintiffs finding themselves in this scenario, there is authority supporting the award of such relief in a single hearing.

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Follow the NCBA Attorney Exchange Program In Japan On Social Media

Check out the NCBA social media channels for updates from the ongoing attorney exchange to Japan led by the International Law & Practice Section. The delegation landed in Tokyo earlier this week and has a packed schedule of meetings with law firms, government officials, businesses and bar organizations. In between, they’re taking in all the Japanese culture, food and landmarks they can get.

Plus, delegates will be writing and sharing daily haikus with us. To see photos of the trip so far click here. Follow them on Twitter at #NCBAinJapan.

Seeking Articles For This Blog

Dear IP Section Members:

We are seeking additional volunteers to draft posts for the NCBA Intellectual Property Law Blog.  Please electronically forward any submissions to us at and

Posts can be short and can address any topic related to recent developments in IP Law.  Some suggestions include:

  • Analysis of recent Federal Circuit Decisions
  • Analysis of recent Oral Arguments at the Supreme Court that impact IP Law, e.g., TC Heartland LLC v. Kraft Foods Group Brands LLC
  • Analysis of any of the post-grant decisions that the PTAB has identified as precedential
  • How Examiners are treating Federal Circuit decisions on 35 U.S.C. 101

These are just suggestions, and you are not limited to these topics.  Please let us know if you have an idea for a topic, or have a completed post you would like to submit for publication.


Michael Morlock, newsletter co-editor

Lauren Anderson, newsletter co-editor

How Does the PTAB Evaluate Follow-On IPR Petitions?

By Courtney Dabbiere and Allison Dobson

Under 35 U.S.C. § 325(d), the Patent Trial and Appeal Board has the discretion to deny a follow-on inter partes review petition where multiple petitions are filed against the same patent.  In exercising its discretion, the board may consider whether “the same or substantially the same prior art or arguments previously were presented to the Office.”  35 U.S.C. § 325(d).  Additionally, the board may consider several factors “including the facts of each case, the burden on the parties and the Board, and the public interest.”  See Polygroup Ltd. v. Willis Elec. Co., Ltd., No. IPR2016-00801, Paper No. 8, at 14 (P.T.A.B. Oct. 17, 2016). While the board’s decisions granting and denying follow-on petitions depend on the circumstances of the case, there are several factors petitioners and patent owners can use to assess the likelihood of the board exercising its discretion. We studied the reasoning for grant or denial of 120 follow-on petitions and report our findings here.

The board will typically decline to exercise its discretion when (1) a petition presents new prior art and/or arguments that are substantially different from the previously relied on art and/or arguments; (2) a different petitioner is challenging the previously challenged claims; (3) a petition challenges claims not previously challenged; or (4) the prior petition was denied without substantive evaluation of the prior art or its applicability to the challenged claims, such as when a proceeding is terminated prior to receiving an institution decision or a final written decision, or when the board denied the previous petition without addressing the merits of petitioner’s arguments. The board may also decline to exercise its discretion when the board has instituted proceedings between the same parties on the same or substantially the same grounds because there will be little additional burden to the parties and the board.

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Ctrl Alt Career: Reset Goals to Find Personal Success

By Joyce Brafford

The thought of chasing your dream can feel like an impossibility. With financial, professional and personal goals so closely tied to success as an attorney, there seems to be little opportunity to leave a traditional job in favor of something more fulfilling. But it can be done. In this article, three lawyers will reflect on how choosing a non-traditional path impacted their relationship to the profession, and their feelings about that decision.

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The ‘Nonvisual Play-Doh Scent Mark’: Can It Really Be a Source Identifier?

By Katherine Escalante

Can you put a value to a certain smell? Play-Doh thinks so. In February, Hasbro, Inc. filed its application for the scent of Play-Doh. Scent has a powerful way of evoking particular emotions in consumers. We all have a scent that brings us back to a cherished memory — something unique to our experiences growing up. While I can admit that Play-Doh has a distinct scent, I could never quite tell you what it smelled like. To me Play-Doh smelled like… well… Play-Doh.

The fragrance itself is described as a “unique scent formed through the combination of a sweet, slightly musky, vanilla-like fragrance, with slight overtones of cherry, and the natural smell of a salted, wheat-based dough.” While it is rare for a scent to be trademarked in the United States, it is not unheard of. The first scent to be trademarked was a floral fragrance “reminiscent of Plumeria blossoms” used on yarn in 1990. Consumers tend to view unusual features of a product as a way to make it stand out from the others, not to designate who made it, placing a heavy burden on those that want to trademark scents.

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Texas, Delaware or Good Ole North Carolina?

By Tara Muller

In a much-anticipated ruling on May 22, 2017, the U.S. Supreme Court in TC Heartland v. Kraft Foods narrowed the definition of venue for patent infringement cases. Until last week, a patent holder could sue an alleged infringer in any venue where the defendant was doing business, causing forum shopping and a very high concentration of patent cases in plaintiff-friendly venues like Eastern District of Texas. Roughly 40 percent of infringement suits, many filed by non-practicing entities, have been filed in ED TX in the last two years. Now, however, patent enforcers must file suit in the judicial district in which the corporate defendant “resides” (meaning state of incorporation) or where it has committed alleged acts of infringement AND has a regular and established place of business. Experts predict TC Heartland will increase the cost of litigation and drastically end forum shopping. They forecast a flood of litigation into other states, including Delaware, where so many companies incorporate, or tech-sector states like California and New Jersey.

Possible?  Sure, but litigators are a clever bunch when they put on their thinking caps. If they found work-arounds to the America Invents Act, they may just find creative ways to stay in their favorite jurisdiction, perhaps by shifting their focus from producers to sellers and retailers.

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