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strains deposited at dsmz by stating that the current version of vsl 3 contains only seven strains of bacteria rather than eight de simone also wrote that it contains bacteria that are qualitatively and quantitatively different and that this counterfeit product has been falsely marketed and promoted to the public and medical community by stating that vsl 3 lacks clinical studies has not been the subject of any published peer reviewed controlled trials in humans untested imitation product etc by stating that vsl 3 is an imitation or knock off and by stating that vsl 3 has been discontinued or recalled vsl 3 is no longer available for sale at many retailers most of these claims failed at summary judgment though there was a factual question based on the statements that vsl 3 lacks clinical studies statements about the strains deposited at dsmz vsl didn t show that the de simone parties claimed that visbiome contains the strains deposited at dsmz the presence of the alphanumeric dsm codes didn t convey a false message because there was no showing that a consumer 1 would recognize that the letters dsm as referring to the leibniz institute dsmz 2 understand that the accompanying code is a scientific accession reference to a microbial deposit at the dsmz and 3 know that dsmz maintains physical samples of that deposit and then assume that the listing of the code means that the product contains material sourced from that particular deposit vsl s own expert acknowledged that such a chain of reasoning is beyond the grasp of most consumers statements that vsl 3 contains seven rather than eight strains for claims not barred by res judicata the only statements were in an email saying 1 that vsl 3 contains bacteria that are qualitatively and quantitatively different and 2 that vsl 3 is a counterfeit product has been falsely marketed and promoted to the public and medical community but these weren t made in interstate commerce i think the court must mean commercial advertising or promotion because they were in a single email sent to one individual as for the statement a phd level microbiologist and an expert on human gastrointestinal microflora concluded that based on his genetic analysis of the new formulation the italian vsl 3 actually only contained 7 strains of bacteria not the 8 contained in the original formulation the microbiologist did in fact reach this conclusion thus this was literally true not literally false statements that vsl 3 is an imitation or knock off these characterizations were substantially true vsl s ceo acknowledged that italian vsl 3 was the result of an attempt to reverse engineer the de simone formulation and that the vsl parties could not actually replicate the original statements that vsl 3 has been discontinued or recalled vsl 3 is no longer available for sale at many retailers many retailers ceased selling vsl 3 during the period following the issuance of the 2019 injunction related to vsl 3 so the explicit statement wasn t false statements that vsl 3 lacks clinical studies here there was a disputed issue with respect to the non res judicata barred statements the statement that vsl 3 is not supported by any published peer reviewed controlled trials was also not actionable because this statement was literally true but other statements e g vsl launched their version of vsl 3 an untested imitation product was plausibly false because the current version of vsl 3 has been the subject of 45 peer reviewed publications addressing its composition safety and efficacy since 2016 and vsl offered evidence to dispute the de simone parties contention that the testing on vsl 3 was performed on the pre 2016 formulation of this product vsl also had expert testimony about deceptiveness the court reached a similar result on the statement in response to a consumer question in an amazon product review that vsl 3 does not contain the same stains or the same strain rations and has no clinical documentation posted by rebecca tushnet at 11 31 am no comments email this blogthis share to x share to facebook share to pinterest labels false advertising tortious interference friday august 07 2026 ipsc closing plenary session ai everywhere all at once plagiarism or transformation machines evidence on copyright economic substitutes and ai stefan bechtold with david abrams christian peukert prevalence rate openai v nyt litigations includes statements about how often users use chatgpt in order to generate potentially infringing output openai normal people don t use it the way the nyt did more than 99 of the time nyt says 14 24 use for information search raising concerns corporate research for openai non work use has risen from 53 to 73 microsoft says that work career topics lead desktop usage 8am 5pm and relationship conversations surge on valentine s day used wildchat dataset 1 million chatgpt conversations from real users april 2023 may 2024 mostly gpt3 5 turbo currently focused on random sample of 10 000 prompts in english nyt rewrites are relatively uncommon more common write a six sentence para summarizing a tale of two cities write a simpsons episode where homer becomes addicted to drugs tell me what i need to know for my chemistry exam some overprotection write the lyrics to rocky road to dublin in english w native irish beside them that request was refused despite the public domain status of the work looking for whether users are looking for potential infringements or potential substitutes e g replacements for chemistry textbook and also looking for whether the output is refused b c of guardrails results 3 7 of sample prompts and outputs model identifies infringement risk guardrails only trigger in 0 13 of cases 1 19 over 2 potential economic substitute risk according to classification the substitute infringement groups don t overlap a ton next steps openai says 28 1 of their users are asking for writing tasks our data around 34 5 thinking about different classifier refinement e g what happens w minimal prompt to our classifier feeding it a textbook classifying w other llms the ai penalty in trade secret law camilla hrdy mike schuster with joe avery bias against self driving cars crashes are perceived as more serious as well as ai generated works trade secret liability often turns on whether improper means were used does this vague and morally charged standard lead to arbitrary distinctions in misappropriation cases scenario website provides insurance quotes no tos limit on request confidential quote database underlying it defendant competitor queries database recreates underlying dataset trade secret human 100 000 spent on 20 hourly employees over 5 weeks to systematically request different quotes ai 100 000 spent on specialized ai that systematically requested different quotes 500 mock jurors were asked would you have brought this lawsuit were means improper etc outcomes significantly more likely to find liability higher compensatory damages less ethically acceptable w ai note that liability improper means were above 50 for human use too only not statistically significant result was on punitive damages ai penalty makes more sense in trade secret than in patent improper means is open ended concept we d expect more bias 11th cir 2020 while manually accessing quotes is unlikely ever to constitute improper means using a bot to collect an otherwise infeasible amount of data may well be that case was scraping w o ai but ai is a subset of automation ai trade secret ai used to steal trade secrets cases are coming there have already been a smattering agentic ai will be a perfect accomplice whether from direct prompts or escapes don t want a bright line rule reasonable measures should still be required but this all makes sense it s important to update rules over time flying over a plant is very different in 1970 and 2026 the value of knowing what works ai and unprotectable ip sarah polcz interviews w researchers at frontier ai labs spending enormous sums to poach researchers 100 million year reported salaries how can individual researchers possibly be worth so much most valuable ip is the least protectable high level insights that are short abstract and easily carried from lab to lab in heads of researchers ip like specific blocks of code or weights of model is comparatively less valuable high level insights also move among researchers socially where there s no current employment relationship aith circuit court of appeals nikola datzov with david schwartz ai judging models showed no meaningful prompt sensitivity shockingly accurate capable depending on complexity of the case key driver is ai s confidence in outcome patent cases appear more complex but show the same trends and capabilities ai models can identify which cases they can and can t accurately decide courts could prioritize remaining cases for human faster review parties could determine whether appeals were worth pursuing the terms and conditions of generative ai andres sawicki with john newman allocating generative ai output ownership looking at tos meh news provider obtains a license to the input to provide the desired service standard broad terms nonexclusive irrevocable worldwide sublicensable etc for inputs and outputs worse news permitted uses are not limited to specified purposes a small fraction say they only use the inputs to provide the service to you the user plurality say they use them to provide service to you and other users also see a large percentage with any business activity some with no explicit limit and a small number where the permitted uses vary by tier 55 of licenses to inputs are restricted and 52 of licenses to outputs notably 45 take unrestricted license to use the inputs so photographers should worry tos also try to make users responsible for any harm infringement w hold harmless and indemnification provisions written quite broadly implications these provisions undermine ownership in materials shifts liability risks to users though it s hard for me to imagine that litigating indemnification wouldn t be more expensive than it s worth so i m not sure that s true risks to democratic deliberation and self government q re ai penalty human labor is linear ai is efficient if you allow it then it will be much easier to do this harvesting more efficiently so if it s troubling then ai makes it worse a similar reasoning to legal protection against plug molds bonito boats or mask works anticopying logic not sure that makes sense forever b c things change but makes sense posted by rebecca tushnet at 7 00 pm no comments email this blogthis share to x share to facebook share to pinterest labels conferences copyright patent trade secrets ipsc breakout session 5 ip politics identity intellectual property and political identity barbara lauriat ip features some strange bedfellows going back as early as we can find about patent project a book on intellectual property victorian inquiry examining royal commissions on patent copyright reform and even abolition were debated both whigs and tories struggled to fit ip into their political identities not just ideologies but how they saw themselves communism socialism focus on the role of public interest and underlying communitarian principles limiting to lifetime of author was communitarian also focused on personal nature of the labor so socialists could say that the work of the mind was different but herbert spencer made the same argument from completely opposite political beliefs john stuart mill changed his views over time a bit started out very pro patent as an exception to anti monopoly but in his discussion of communism he carved out invention as a potential area where invention would still happen b c it s a naturally agreeable thing to do cut from the next edition of principles of political economy though suffrage was also connected to property ownership largely uneducated mechanic could become a voter through invention so wide availability of patents could be seen as democratizing and dickens distinguished support for patenting from support for chartism ip and free trade was also part of the discussion lessons don t assume the audience agrees on the fundamentals adapt arguments for different audiences people did change their minds when arguments appealed to their political identities forget about political theory free traders who opposed patents suggested rewards prizes this seemed to involve more gov t regulation and so practical arguments pushed that faction into further further extreme positions that eventually failed christian nationalism and ip lucas osborn definition a political ideology that seeks to entangle christianity with political life heavy version being a christian is very important to being truly american it is very important that the us president be christian the bible should have at least some influence over us law and when the bible conflicts with the will of the people the bible should have more influence only about 3 of pew respondents endorsed all 4 propositions lighter version about ½ of americans say laws should be influenced by christian morals what would this mean for ip depends on the kind of xianity looked at biblical principles important in theories of property imago dei genesis let us make man in our image after our likeness g d is a creator so that s an area of overlap dominion mandate humans have dominion over all the earth caretakers stewards of creation in ways different from other animals private property exodus thou shalt not steal dominion mandate is consonant w private ownership property rights viewed as necessary for human flourishing and social stability humans are bad and selfish so private property provides a structure to control our worst natures the bible supports giving people the fruits of their labor whether wages or property rights examples start from that foundation and yet come to pretty different conclusions ruth okediji is the public domain just v james edwards to invent is divine okediji private property is in tension w though not irreconcilable with stewardship need conception of what it means to be human to shape sustainable conditions for flourishing life edwards mass flourishing coincides w private property rights ip rights okediji says that optimal production of knowledge goods is important but so is optimal consumption stewardship includes private rights and service to others edwards private ownership is what you need leaves service to others outside bounds of legal duties okediji need ongoing assessment of ip law including traditional knowledge edwards founders were right should broaden patentable subject matter make injunctions easier to grant affirm that patents are private property not government grants takeaway xianity doesn t get you to a 20 year patent term or automatic injunctions so be careful what would xian ip look like you can imagine limiting protections for obscene pornographic and potentially blasphemous content though they also 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