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Preview: LexisNexis® Mealey's™ Intellectual Property Legal News

LexisNexis® Mealey's™ Intellectual Property Legal News



Headline Intellectual Property Legal News from LexisNexis®



 



'DJ Logic' Trademark Suit Denied Certiorari By U.S. Supreme Court
WASHINGTON, D.C. - In its Oct. 2 order list, the U.S. Supreme Court denied a DJ's petition for certiorari over whether a likelihood of confusion determination in a trademark suit should be made by a court or a jury, letting stand a Sixth Circuit U.S. Court of Appeals ruling that found no evidence of confusion (Lee Jason Kibler v. Robert Bryson Hall II, et al., No. 16-1365, U.S. Sup., 2017 U.S. LEXIS 4841).



High Court Won't Hear Trademark Dilution Suit Over Parody Louis Vuitton Handbags
WASHINGTON, D.C. - Louis Vuitton Malletier S.A. (LV) won't have the opportunity to present arguments before the U.S. Supreme Court that a parody tote bag maker violated the Trademark Dilution Revision Act (TDRA); the high court denied the luxury goods maker's petition for certiorari in its Oct. 2 order list (Louis Vuitton Malletier S.A. v. My Other Bag Inc., No. 17-72, U.S. Sup., 2017 U.S. LEXIS 5936).



National Urban League Prevails In Trademark Dispute With Disaffiliate
DALLAS - Continued use by the Urban League of Greater Dallas and North Central Texas Inc. (ULGD) of the "Urban League" trademark on social media and online after the National Union League Inc. (NUL) stripped ULGD of its affiliate status represents infringement, a Texas federal judge ruled Sept. 29 (National Urban League Inc. v. Urban League of Greater Dallas and North Central Texas Inc., No. 15-3617, N.D. Texas, 2017 U.S. Dist. LEXIS 160608).



11th Circuit Reverses Rejection Of Service Mark Infringement Claim
ATLANTA - A Georgia federal judge's grant of summary judgment on behalf of a service mark infringement defendant was reversed and remanded Oct. 3 by the 11th Circuit U.S. Court of Appeals, which deemed controlling a 1975 case that extended protection for federally registered service marks to goods, beyond the area of registration listed in a service mark certificate (Savannah College of Art and Design v. Sportswear Inc., No. 15-13830, 11th Cir., 2017 U.S. App. LEXIS 19168).



Magistrate Judge Orders Rolling Paper Documents To Be Turned Over For Discovery
CHICAGO - A magistrate judge in an Illinois federal court on Sept. 27 ordered a tobacco company to produce documents regarding the design of its rolling papers that are in the possession of one of its French subsidiaries in a trademark infringement countersuit after finding that French law does not entirely preempt the company making those documents available for discovery (Republic Technologies LLC, et al. v. BBK Tobacco & Foods LLP, No. 16 3401, N.D. Ill., 2017 U.S. Dist. LEXIS 158986).



Trade Secrets, Other Claims Not Plausible On Face, Former Business Partner Says
CHICAGO - A company has failed to show that its trade secrets misappropriation, trademark infringement, breach of contract and other claims against its former business partner are plausible on their face and, thus, dismissal of those claims is warranted, the former business partner argues in an Oct. 10 motion to dismiss filed in Illinois federal court (Mighty Deer Lick Inc., d/b/a Mighty Deer Lick Sweet Apple Inc., v. Morton Salt Inc., No. 17-5875, N.D. Ill.).



Petitioner Must Prove Amended Claims Are Not Patentable, Federal Circuit Says
WASHINGTON, D.C. - In a case that spawned five separate decisions, a divided en banc Federal Circuit U.S. Court of Appeals on Oct. 4 vacated and remanded a denial by the U.S. Patent and Trademark Office (PTO) Patent Trial and Appeal Board of a patent owner's motion to amend challenged claims in an inter partes review (IPR) because the board erroneously placed the burden of proving patentability of the amended claims on the patent owner (Aqua Products Inc. v. Joseph Matal, No. 15-1177, Fed. Cir., 2017 U.S. App. LEXIS 19293).



Federal Circuit Affirms Vacatur Of Jury Verdict Of Patent Infringement
WASHINGTON, D.C. - A Texas federal judge's decision to vacate a jury's finding of patent infringement with regard to the "Express" coronary stent was affirmed by the Federal Circuit U.S. Court of Appeals on Sept. 29 (G. David Jang, M.D. v. Boston Scientific Corp., et al., No. 16-1275, Fed. Cir., 2017 U.S. App. LEXIS 18825).



Federal Circuit Upholds Patent Board Obviousness, Anticipation Rulings
WASHINGTON, D.C. - Citing the doctrine of collateral estoppel, the Federal Circuit U.S. Court of Appeals on Oct. 3 found that an inventor is barred from challenging a decision by the Patent Trial and Appeal Board that various claims of her patent are anticipated or obvious (In re: Lakshmi Arunachalam, No. 16-1607, Fed. Cir., 2017 U.S. App. LEXIS 19105).



Trial Date In Uber Trade Secrets Suit Moved To Early December
SAN FRANCISCO - In an Oct. 4 order, the federal judge overseeing the trade secrets and patent infringement lawsuit against Uber Technologies Inc. granted plaintiff Waymo LLC's motion for a continuance and delayed the start of trial until early December (Waymo LLC v. Uber Technologies Inc., et al., No. 17-0939, N.D. Calif.).



Injunction Barring Drug Sales Vacated By Federal Circuit, New Trial Ordered
WASHINGTON, D.C. - A Delaware federal judge erred by excluding priority date evidence and by instructing jurors that written description can be satisfied by the disclosure of a newly characterized antigen, the Federal Circuit U.S. Court of Appeals ruled Oct. 5 in a patent dispute over the cholesterol drug Repatha, which features the active ingredient "evolocumab" (Amgen Inc., et al., v. Sanofi, et al., No. 17-1480, Fed. Cir., 2017 U.S. App. LEXIS 19416).



California Contract Lawsuit Won't Be Dismissed Because Of Texas Patent Case
SAN FRANCISCO - In an Oct. 5 order, a California federal judge denied a motion to dismiss breach of contract allegations levied by Yahoo! Inc. in favor of an earlier-filed patent infringement action pending in Texas federal court (Yahoo! Inc. v. MyMail Ltd., No. 16-7044, N.D. Calif., 2017 U.S. Dist. LEXIS 165642).



Federal Circuit Says Jurisdiction Lacking Over Patent, Trademark Claims
WASHINGTON, D.C. - An appeal by pro se plaintiffs of a dismissal by the U.S. Court of Federal Claims of his allegations that the U.S. government committed patent and trademark infringement was turned away on Oct. 6 by the Federal Circuit U.S. Court of Appeals, which found that the patent claims were untimely and that the Claims Court lacked jurisdiction over the trademark portion of the case (John Sacchetti v. United States, et al., No. 17-1484, Fed. Cir., 2017 U.S. App. LEXIS 19530).



Bill Unveiled In Senate To Bar Tribal Sovereign Immunity Defense For Patent Review
WASHINGTON, D.C. - A democratic U.S. senator from Missouri introduced a bill on Oct. 5 that would strip patent holders of the ability to avoid inter partes review by the Patent Trial and Appeal Board (PTAB) by claiming tribal sovereign immunity.



Federal Circuit Upholds PTO Decision To Exclude Attorney From Practice
WASHINGTON, D.C. - A determination by the U.S. Patent and Trademark Office (PTO) - later upheld by a Virginia federal judge - that an attorney should be excluded from practicing before the PTO in light of his disbarment in North Carolina was itself upheld on Oct. 12 by the Federal Circuit U.S. Court of Appeals (Richard Polidi v. U.S. Patent and Trademark Office, No. 16-1997, Fed. Cir.).



Supreme Court Won't Hear Suit Over Liability For Online Sale Of Infringing Goods
WASHINGTON, D.C. - In its Oct. 10 order list, the U.S. Supreme denied a petition for certiorari in a children's pillowcase maker's suit against Amazon.com Inc., declining to consider questions regarding an online retailer's liability for the sale of a third party's goods that infringe another's patents or copyrights (Milo & Gabby LLC, et al. v. Amazon.com Inc., No. 17-287, U.S. Sup.).



Patent Board Turns Away Challenge To Cancer Drug In Final Decision
ALEXANDRIA, Va. - A consolidated challenge to 22 claims of the patented cancer drug Alimta was rejected Oct. 5 by the Patent Trial and Appeal Board, which found that various petitions for inter partes review (IPR) failed to demonstrate that the claimed invention would have been obvious to a person of skill in the art (Sandoz Inc., et al. v. Eli Lilly & Company, No. IPR2016-00318, PTAB).



Inter Partes Review Of Network Communication Patent Denied By Board
ALEXANDRIA, Va. - A challenge of a patent covering a system and method for communication between two or more disparate networks in parallel was turned away on Oct. 10 by the Patent Trial and Appeal Board, which exercised its discretion pursuant to Section 325(d) of the America Invents Act, 35 U.S.C. 325(d) (IPR) (Viptela Inc. v. Fatpipe Networks Private Ltd., No. IPR2017-01126, PTAB).



Board Institutes Review Of Remote Measurement System Patent
ALEXANDRIA, Va. - In an Oct. 10 ruling, the Patent Trial and Appeal Board agreed to institute inter partes review (IPR) of a patented system for measuring data remotely (Unified Patents Inc. v. Kamatani Cloud LLC, No. IPR2017-01370, PTAB).



Samsung Wins Institution Of Inter Partes Review Before Patent Board
ALEXANDRIA, Va. - A patented method for generating an edited video data stream will be the subject of an upcoming inter partes review (IPR), the Patent Trial and Appeal Board announced Oct. 11 (Samsung Electronics America Inc. v. Prisua Engineering Corp., No. IPR2017-01188, PTAB).



Arthritis Treatment Drug Targeted In Petition For Post-Grant Review
ALEXANDRIA, Va. - Thirty claims of a patent covering methods of treating arthritis through oral administration of a pharmaceutical comprised of zoledronic acid are "extremely broad," and the patent's specification "simply fails to enable their full scope," a petitioner for post-grant review told the Patent Trial and Appeal Board on Oct. 10 (Grunenthal GmbH v. Antecip Bioventures II LLC, PGR2018-00001, PTAB).



Megaupload Executives Denied Certiorari In Fugitive Disentitlement Dispute
WASHINGTON, D.C. - A group of former executives of the now-defunct file-sharing service Megaupload who were convicted for criminal copyright convictions won't have their questions about fugitive disentitlement of assets heard by the U.S. Supreme Court, as their petition for certiorari was denied in the high court's Oct. 2 order list (Finn Batato, et al. v. United States, No. 16-1206, U.S. Sup.).



Supreme Court Denies Certiorari In Dispute Over Substantial Similarity Test
WASHINGTON, D.C. - In its Oct. 10 orders list, the U.S. Supreme Court announced that it will not review a case that posed the question of which test for substantial similarity controls when determining whether copyright infringement has occurred (Shame On You Productions Inc. v. Elizabeth Banks, et al., No. 17-180, U.S. Sup.).



1st Circuit Affirms: Copyrights Conveyed To Gripe Website
BOSTON - The First Circuit U.S. Court of Appeals on Oct. 11 upheld findings by a Massachusetts federal judge that a disgruntled civil litigant conveyed a nonexclusive license to the "Ripoff Report" website when he clicked a box acknowledging that a user who posts on the site agrees to give the site's owner an "irrevocable right" to display the posting (Small Justice LLC, et al. v. Xcentric Ventures LLC, Nos. 15-1506, 16-1085, 1st Cir., 2017 U.S. App. LEXIS 19866).



3 Studio Plaintiffs Added In Amended Copyright Complaint Against VidAngel
LOS ANGELES - After receiving adverse rulings for sanctions, contempt and a preliminary injunction, video-streaming service provider VidAngel Inc. saw three more movie studios join a copyright infringement lawsuit against it, with the Oct. 6 filing of a first amended complaint (FAC) (Disney Enterprises Inc., et al. v. VidAngel Inc., No. 2:16-cv-004109, C.D. Calif.).



California Magistrate Judge OKs Service By Publication In Copyright, Patent Case
SAN FRANCISCO - Citing an inability by a copyright, patent and trade dress infringement plaintiff to serve a copy of its complaint on two defendants, a California federal judge on Oct. 6 found "good cause" to allow service by publication (Rain Design Inc. v. Spinido Inc., et al., No. 17-3681, N.D. Calif., 2017 U.S. Dist. LEXIS 166415).



Judge: No Coverage For Third-Party Claims Arising From Patent Infringement Dispute
SAN DIEGO - Granting a business owners liability insurer's motion for summary judgment in a breach of contract and bad faith lawsuit, a California federal judge on Sept. 29 found that a third-party complaint against an insured arising from a patent infringement lawsuit failed to trigger coverage (WAWGD, Inc., doing business as Foresight Sports v. Sentinel Insurance Company, No. 16-2917, S.D. Calif., 2017 U.S. Dist. LEXIS 161361).



Intellectual Property Exclusion Bars Coverage For Trademark Dispute, Judge Says
TAMPA, Fla. - A Florida federal judge on Oct. 4 entered judgment in favor of an insurer in a "personal and advertising injury" coverage dispute, finding that the policy's intellectual property exclusion bars coverage because all of the underlying causes of action were dependent on the insured's infringement of a trademark (Land's End at Sunset Beach Community Association, Inc. v. Aspen Specialty Insurance Co., No. 17-1740, M.D. Fla., 2017 U.S. Dist. LEXIS 163457).



U.S. Government Opposes Certiorari In Samsung, Apple Smartphone Patent Suit
WASHINGTON, D.C. - In an Oct. 4 amicus curiae brief, the U.S. government recommended that the U.S. Supreme Court deny Samsung Electronics Co. Ltd.'s petition for certiorari in its dispute over smartphone technology patents with Apple Inc., arguing that an appeals court judgment affirming a verdict and judgment were properly reached and present no questions of law meriting high court review (Samsung Electronics Co. Ltd., et al. v. Apple Inc., No. 16-1102, U.S. Sup.).



Patent Owner Tells Federal Circuit Petition Was Time-Barred
WASHINGTON, D.C. - A final written decision by the Patent Trial and Appeal Board that found certain claims of a patented moving flame, flameless candle unpatentable as obvious should be vacated because one of the underlying petitions for inter partes review was untimely, the patent owner recently told the Federal Circuit U.S. Court of Appeals (In re: Luminara Worldwide LLC, No. 17-1629, Fed. Cir.).



Petitioner Tells Supreme Court That Scope Of Inter Partes Review Is Reviewable
WASHINGTON, D.C. - In an Oct. 5 reply brief before the U.S. Supreme Court, a party that initiated an inter partes review (IPR) proceeding with the Trademark Trial and Appeal Board (TTAB) of the Patent and Trademark Office (PTO) argues that the agency's interim director incorrectly asserted that the scope of a final written decision from the board is not reviewable per the America Invents Act (AIA) (SAS Institute Inc. v. Joseph Matal, et al., No. 16-969, U.S. Sup.).



Federal Circuit Hears Arguments In Patent Eligibility Dispute
WASHINGTON, D.C. - The Federal Circuit U.S. Court of Appeals is poised to decide an assertion by two patent owners that their method and system for tracking and analyzing Internet interactions was improperly deemed patent-ineligible under Section 101 of the Patent Act, 35 U.S.C. 101, in a case scheduled for oral arguments on Oct. 5 (NICE Ltd., et al. v. ClickFox Inc., No. 17-1041, Fed. Cir.).



Federal Circuit Told Patent Board Re-examination Holdings Were Error
WASHINGTON, D.C. - A patent owner and licensee on Oct. 4 squared off with an inter partes re-examination challenger in oral arguments before the Federal Circuit U.S. Court of Appeals in a dispute over a reciprocating rotary arthroscopic instrument used to cut semi-rigid tissue such as bone and muscle (Smith & Nephew Inc. and Covidien LP v. Hologic Inc., No. 17-1008, Fed. Cir.).



Bar On Expert Testimony In Copyright Cases Not Cert Worthy, Video Maker Says
WASHINGTON, D.C. - The U.S. Supreme Court should deny certiorari in a copyright infringement action over the popular John Madden Football series computer game because the federal circuit courts agree that disputed works must be placed into evidence so a jury can compare them, and any ruling on the role of expert witnesses in software copying cases would not change the outcome of the case at hand, the video game maker argues in a Sept. 28 response brief (Robin Antonick v. Electronic Arts Inc., No. 17-168, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 3769).



Builder Appeals Home Plan 'Thin' Copyright Protection To U.S. Supreme Court
WASHINGTON, D.C. - A homebuilder in a Sept. 14 petition for certiorari asks the U.S. Supreme Court to review an 11th Circuit U.S. Court of Appeals ruling that it says devalues architectural plan copyrights, simultaneously arguing that the disposition of its infringement suit via summary judgment deprived it of the right to a jury trial under the Seventh Amendment to the U.S. Constitution (Arthur Rutenberg Homes Inc., et al. v. Jewel Homes LLC, et al., No. 17-511, U.S. Sup.).



FedEx, Nonprofit Argue Over Noncommercial Copyright License In 2nd Circuit
NEW YORK - A nonprofit educational firm and FedEx Office and Print Services Inc. briefed the Second Circuit U.S. Court of Appeals on issues surrounding the noncommercial use requirement in a public license for downloadable materials, with the parties disagreeing whether FedEx violated the materials' copyright by copying the materials for school districts (Great Minds v FedEx Office and Print Services Inc., No. 17-808, 2nd Cir.).



Artist Appeals Unclean Hands Ruling In 'Life Is Beautiful' Trademark Dispute
SAN FRANCISCO - A street artist's limited liability company argues in an Oct. 6 brief in the Ninth Circuit U.S. Court of Appeals that a trial court's unclean hands judgment against it over registrations of the "Life is Beautiful" trademark failed to account for the fact that errors in the registrations were due to innocent mistakes, not fraud (Amusement Art LLC v. Life is Beautiful LLC, et al., No. 17-55045, 9th Cir.).



Tech Firm Appeals Fees Award, Judgment In 'Dropbox' Trademark Suit
SAN FRANCISCO - In an Oct. 6 reply brief in the Ninth Circuit U.S. Court of Appeals, a small tech company argues that a $2 million attorney fee award against it was inappropriate and "create[s] a terrible precedent" because it was merely defending its "Dropbox" trademark against a larger company (Dropbox Inc. v. Thru Inc., No. 17-15078, 9th Cir.).



Federal Circuit Affirms: Jurisdiction Lacking In Patent Ownership Case
WASHINGTON, D.C. - A concession by two declaratory judgment defendants that they currently hold no title to a patent portfolio and that they will not hold title until a court determines otherwise are fatal to two declaratory judgment plaintiffs' assertion of federal subject matter jurisdiction over a dispute over ownership of the same patent portfolio, the Federal Circuit U.S. Court of Appeals affirmed Sept. 15 (First Data Corporation, et al. v. Eric Inselberg, et al., Nos. 2016-2677, -2696, Fed. Cir.).



Judgment Premised On Erroneous Claim Construction, Federal Circuit Says
WASHINGTON, D.C. - A Michigan federal judge did not abuse her discretion in dismissing patent invalidity defenses and counterclaims in a dispute over soffit panels but did err in granting the patent owner a summary judgment of infringement and permanent injunction, the Federal Circuit U.S. Court of Appeals ruled Sept. 15 (Quality Edge Inc. v. Rollex Corporation, No. 17-1005, Fed. Cir., 2017 U.S. App. LEXIS 17855).



Patent Board's Inurement Determination Reversed, Remanded By Federal Circuit
WASHINGTON, D.C. - A rejection by the Patent Trial and Appeal Board of assertions by an appellant that it created a prototype embodying a claimed invention before the priority date of a cited prior art reference was reversed and remanded by the Federal Circuit U.S. Court of Appeals on Sept. 20 (NFC Technology LLC v. Joseph Matal, U.S. Patent and Trademark Office, No. 16-1808, Fed. Cir., 2017 U.S. App. LEXIS 18164).



Federal Circuit Grants Mandamus Petition, Directs Transfer Of Patent Case
WASHINGTON, D.C. - In rejecting a Texas federal judge's interpretation of In re: Cordis Corp., 769 F.2d 733 (Fed. Cir. 1985), the Federal Circuit U.S. Court of Appeals on Sept. 21 granted a petition for mandamus and ordered a district court to determine on remand whether the case should proceed in Wisconsin or a different Texas federal court (In re: Cray Inc., No. 17-129, Fed. Cir.).



Ohio Federal Judge Dismisses Accused Product From Patent Case
COLUMBUS, Ohio - Allegations that Rust-Oleum Corp. and other defendants infringed a patented method of vinyl siding restoration through their "NeverWet" product were dismissed by an Ohio federal judge on Sept. 21 (Alan K. Stuart, et al. v. Rust-Oleum Corporation, et al., No. 16-622, S.D. Ohio, 2017 U.S. Dist. LEXIS 154380).



Oregon Federal Judge Partly Grants Motion To Stay Patent Litigation
PORTLAND, Ore. - An Oregon federal judge on Sept. 22 agreed to stay claim construction briefing in a patent case and strike a planned December claim construction hearing until the U.S. Patent and Trademark Office (PTO) agrees to grant or deny three petitions for inter partes review (IPR) of three patents (Reebok International Ltd. v. TRB Acquisitions LLC, No. 16-1618, D. Ore., 2017 U.S. Dist. LEXIS 155202).



Texas Federal Judge, Citing Convenience, Transfers Patent Case
MARSHALL, Texas - In what he deemed a "close case," U.S. Judge Rodney Gilstrap of the Eastern District of Texas on Sept. 22 agreed to transfer allegations of patent infringement to the U.S. District Court for the Northern District of California (Oyster Optics LLC v. Ciena Corporation, No. 16-1302, E.D. Texas, 2017 U.S. Dist. LEXIS 155586).



New Trial, Judgment As A Matter Of Law Denied In Delaware Patent Case
WILMINGTON, Del. - A patent owner whose allegations of infringement by Microsoft Corp. were rejected in May failed Sept. 26 to persuade a Third Circuit U.S. Court of Appeals judge, sitting by designation in the District of Delaware, to order a new trial (Parallel Networks Licensing LLC v. Microsoft Corp., No. 13-2073, D. Del., 2017 U.S. Dist. LEXIS 157005).



4 Sony Patent Claims Canceled By Patent Board
ALEXANDRIA, Va. - In a Sept. 25 final written decision, the Patent Trial and Appeal Board found that four claims of a Sony Corp. patent directed to a method for swift selection of a desired television channel would have been obvious over a combination of four pieces of prior art (Arris International PLC v. Sony Corporation, No. IPR2016-00835, PTAB).



Spacer Variation Patent Would Have Been Obvious, Petitioner Tells Board
ALEXANDRIA, Va. - In a Sept. 20 request for inter partes review, two petitioners took aim at a patented method of integrated circuit manufacturing including the formation of selectively sized spacers (Renesas Electronics Corporation and Renesas Electronics America Inc. v. Lone Star Silicon Innovations, No. IPR2017-02124, PTAB).



Sony Files Petition For Inter Partes Review Of Electronic Chassis Patent
ALEXANDRIA, Va. - On Sept. 20, Sony Corp. asserted before the Patent Trial and Appeal Board that three claims of a patented electronic chassis and housing with an integrated forced air cooling system would have been obvious to a person of skill in the art in light of two prior art references (In re: Sony Corp., No. IPR2017-01961, PTAB).



Cisco Challenges Data Transmission Patent In New Petition
ALEXANDRIA, Va. - An Oyster Optics LLC patent relating to a more secure system for data transmission over a fiber optic network would have been obvious to a person of skill in the art, according to a Sept. 27 petition for inter partes review filed with the Patent Trial and Appeal Board (Cisco Systems Inc. and Oclaro Optics LLC v. Oyster Optics LLC, No. IPR2017-02189, PTAB).



Board Institutes Inter Partes Review Of Horizon Drug Patent
ALEXANDRIA, Va. - The Patent Trial and Appeal Board on Sept. 28 agreed to review various claims of a patented method of using the drug glyceryl tri-(4-phenylbutryate) (HPN-100) to treat subjects with urea cycle disorders (Lupin Ltd. and Lupin Pharmaceuticals Inc. v. Horizon Therapeutics LLC, No. IPR2017-01160, PTAB).



9th Circuit Reverses, Remands Trade Dress Functionality Ruling
SAN FRANCISCO - A California federal judge erred in holding that the overall configuration of a live auction television show is functional, the Ninth Circuit U.S. Court of Appeals ruled Sept. 15, reversing and remanding the denial of preliminary injunctive relief in a trade dress infringement and trade secret misappropriation case (VBS Distribution Inc. v. Nutrivita Inc., et al., No. 17-11598, 9th Cir., 2017 U.S. App. LEXIS 17951).



2nd Circuit Affirms Denial Of Request To Disqualify Trademark Counsel
NEW YORK - Although vacating and remanding a permanent injunction, the Second Circuit U.S. Court of Appeals on Sept. 19 affirmed a New York federal judge's decision to deny a request for disqualification of Locke Lord in a dispute over the Swiss Army knife trade dress (Victorinox AG, et al. v. The B&F Systems Inc., et al., Nos. 15-4032, 16-2690, 2nd Cir., 2017 U.S. App. LEXIS 18070).



Pipe Maker Sues Tobacco Shop For Trademark Infringement
BATON ROUGE, La. - A glass pipe maker on Sept. 21 filed suit in Louisiana federal court, claiming that a tobacco shop sold counterfeit versions of its pipe and used its trademarked brand without its permission (SREAM Inc. v. Tine Forte Carville, No. 3:17-cv-00667, M.D. La.).



New York Federal Judge Denies UMG's Motion To Dismiss Copyright Claim
BROOKLYN, N.Y. - Assertions by defendant Universal Music Group (UMG) Inc. that a copyright infringement action should be dismissed on jurisdiction grounds or for failure to state a claim were rejected as "legally insufficient" by a New York federal judge on Sept. 17 (Hypefortype Ltd v. Universal Music Group Inc., No. 17-4468, E.D. N.Y., 2017 U.S. Dist. LEXIS 150500).



Scholastic Wins Transfer Of Copyright Action To New York Federal Court
TRENTON, N.J. - Allegations that Scholastic Inc. exceeded the terms of a limited license to use a plaintiff's copyrighted photographs in its publications will proceed in New York federal court in light of Scholastic's forum-selection clause with a stock photography agency, a New Jersey federal judge ruled Sept. 15 (George Steinmetz v. Scholastic Inc., No. 16-3585, D. N.J., 2017 U.S. Dist. LEXIS 149952).



Jurisdiction Lacking Over Dutch Company Accused Of Copyright Infringement
COLUMBUS, Ohio - In a Sept. 19 ruling, an Ohio federal judge found that a corporation incorporated and operating in the Netherlands cannot be made to stand trial in the United States on allegations that it infringed a copyrighted psychological assessment (IDS Publishing Corporation v. Reiss Profile Europe B.V., No. 16-535, S.D. Ohio, 2017 U.S. Dist. LEXIS 152114).



Minnesota Federal Judge Transfers Copyright Case To Florida Court
MINNEAPOLIS - A complaint by Mayo Clinic and Mayo Foundation for Medical Education and Research (Mayo, collectively) that seeks a declaration that Mayo did not infringe a copyrighted chart in an internal training session cannot proceed in Minnesota because the chart's author has not "purposefully directed" her activities there, a Minnesota federal judge ruled Sept. 27 (Mayo Clinic, et al. v. Enterprise Management Limited Inc. and Mary Lippitt, No. 17-941, D. Minn., 2017 U.S. Dist. LEXIS 158786).



Oracle's False Advertising Counterclaims Survive Motion To Dismiss
LAS VEGAS - A Nevada federal judge on Sept. 21 found that Lanham Act claims based upon a former copyright infringement defendant's alleged false representation that its revised software maintenance program was no longer infringing are not preempted by the Copyright Act, 17 U.S.C. 101 et seq. (Rimini Street Inc. v. Oracle America Inc., No. 14-1699, D. Nev., 2017 U.S. Dist. LEXIS 154930).



Copyright, Trademark, Patent Claims To Proceed In California Federal Court
LOS ANGELES - Efforts by a defendant to obtain dismissal of allegations of copyright, trademark and design patent infringement stemming from the sale of luxury candy were unsuccessful Sept. 25, when a California federal judge deemed the allegations adequately pleaded (Sugarfina Inc. v. Sweet Pete's LLC, No. 17-4456, C.D. Calif., 2017 U.S. Dist. LEXIS 156711).



New York Copyright Dispute Over Bar Exam Prep Programs Dismissed
NEW YORK - Citing evidence that a plaintiff "does not hold (and indeed, has not even applied for) a copyright," a New York federal judge on Sept. 25 dismissed without prejudice allegations of infringement by a bar exam prep company against a competitor (LLM Bar Exam LLC v. Barbri Inc., et al., No. 16-3770, S.D. N.Y., 2017 U.S. Dist. LEXIS 156411).



Judge Dismisses UCL Claim Related To Curricula, Allows Infringement Claim
SAN FRANCISCO - After finding that parts of curricula were duplicated, a California federal judge on Sept. 22 refused to dismiss the owner of the copyright's claim for infringement but dismissed her claims for violation of California's unfair competition law (UCL) and interference for failure to plead with particularity (Alisa Wolf, et al. v. Futures Explored, et al., No. 3:16-cv-03297, N.D. Calif., 2017 U.S. Dist. LEXIS 155614).



Energy Firm Tells High Court That Inter Partes Review Is Unconstitutional
WASHINGTON, D.C. - The inter partes review (IPR) method of challenging a patent's validity violates Article III of the U.S. Constitution and the Seventh Amendment, a patentee argues in its Aug. 24 merits brief to the U.S. Supreme Court, because it supplants the roles of a judge and jury with a decision by the U.S. Patent and Trademark Office's (PTO's) Patent and Trial Appeal Board (PTAB), which is not part of the Judicial Branch (Oil States Energy Services LLC v. Greene's Energy Group LLC, No. 16-712, U.S. Sup.).



Challenger Tells Federal Circuit Patent Wrongly Deemed Nonobvious
WASHINGTON, D.C. - A decision by the Patent Trial and Appeal Board that confirmed the patentability of the rheumatoid arthritis drug Orencia despite findings in the same ruling that a person of ordinary skill in the art (POSITA) would have been motivated to make the claimed invention was erroneous, the patent owner recently told the Federal Circuit U.S. Court of Appeals (Momenta Pharmaceuticals Inc. v. Bristol-Myers Squibb Co., No. 17-1694, Fed. Cir.).



Arguments Approach In Federal Circuit Appeal Of Patent Board Ruling
WASHINGTON, D.C. - A decision by the Patent Trial and Appeal Board that invalidated as obvious various claims of a USB rotary cover patent will be debated Oct. 3 in oral arguments before the Federal Circuit U.S. Court of Appeals (Pavo Solutions LLC v. Kingston Technology Co. Inc., No. 16-2209, Fed. Cir.).



Parties Brief Federal Circuit On Eligibility Of Genetic Testing Patent
WASHINGTON, D.C. - A California federal judge erred in determining that the subject matter of a patented method for detecting an antibiotic-resistant form of tuberculosis in human deoxyribonucleic acid (DNA) is patent-ineligible under Section 101 of the Patent Act, 35 U.S.C. 101, the patent owner recently told the Federal Circuit U.S. Court of Appeals (Roche Molecular Systems Inc. v. Cepheid, No. 17-1690, Fed. Cir.).



Google Waives Response In High Court Petition Over Genericness Of Its Trademark
WASHINGTON, D.C. - Google Inc. on Sept. 14 waived its right to file an opposition to a petition for certiorari in which two men assert that the term "google" has become generic and, thus, is no longer entitled to trademark protection (David Elliott, et al. v. Google Inc., No. 17-258, U.S. Sup.).



Vietnamese Food Company Appeals Cancellation Of Pho Trademarks To 9th Circuit
SAN FRANCISCO - A maker of pho soup base products tells the Ninth Circuit U.S. Court of Appeals in a Sept. 20 brief that a trial court erred in issuing judgment against it in a trademark dispute with a competing pho maker, arguing that its "Cot" marks are not descriptive and have acquired secondary meaning (Quoc Viet Foods Inc. v. VV Foods LLC, et al., No. 17-55331 and 17-55742, 9th Cir.).



Boat Maker Argues Rival Identified No Protectable Trade Dress, Trade Secrets
ATLANTA - A competing high-end boat manufacturer failed to identify any protectable, nonfunctional trade dress that was allegedly infringed, a craft designer tells the 11th Circuit U.S. Court of Appeals in a Sept. 20 appellee brief, also alleging that purportedly misappropriated confidential information did not qualify as trade secrets under Florida law (Yellowfin Yachts Inc. v. Barker Boatworks, LLC, et al., No. 17-11176, 11th Cir.).



Megaupload Executives Cite 6th Circuit Rulings To Support Certiorari Petition
WASHINGTON, D.C. - In a Sept. 1 supplemental brief further supporting their petition for certiorari in the U.S. Supreme Court, former executives of the now-defunct file-sharing service Megaupload point to two recent fugitive disentitlement of assets rulings by the Sixth Circuit U.S. Court of Appeals that they say conflict with the Fourth Circuit U.S. Court of Appeals' ruling against them in the present criminal copyright suit, deepening an already existing circuit split on the matter (Finn Batato, et al. v. United States, No. 16-1206, U.S. Sup.).



Director Says Sanctions Were Properly Vacated In Short Film Copyright Suit
NEW YORK - In a Sept. 21 appellee brief, a film director and his attorney ask the Second Circuit U.S. Court of Appeals to affirm a trial court's vacating of a sanctions award against them because it was based on the appeals court's prior finding that no tortious interference occurred in a copyright infringement dispute over a short film (16 Casa Duse LLC v. Alex Merkin, et al., No. 17-0625, 2nd Cir.).



Federal Circuit Won't Rehear Dispute Over Apportioned Patent Damages
WASHINGTON, D.C. - A deeply divided Federal Circuit U.S. Court of Appeals on Sept. 1 rejected a request for panel rehearing and rehearing en banc of a March ruling that upheld a $36 million lost profits award in a patent case (Mentor Graphics Corp. v. Synopsys Inc., et al., Nos. 2015-1470, -1554, -1556, Fed. Cir., 2017 U.S. App. LEXIS 16854).



California Federal Judge: 4 Asserted Patents Claim Ineligible Subject Matter
SAN FRANCISCO - A California federal judge on Sept. 1 granted Yahoo! Inc. dismissal of allegations that the search engine infringed four patents, after determining that each of the patents runs afoul of Section 101 of the Patent Act, 35 U.S.C. 101 (TS Patents LLC v. Yahoo! Inc., No. 17-1721, N.D. Calif., 2017 U.S. Dist. LEXIS 142573).



T-Mobile Gets Divided Ruling In Bid To Exclude Patentee's Expert Opinions
MARSHALL, Texas - An expert can opine that accused patent infringer T-Mobile "made" a product, rather than just "used" it, but cannot testify that the company never enabled a restoration feature because it was advised against doing so by counsel, a Texas federal magistrate judge ruled Sept. 4 (Huawei Technologies Co. Ltd. v. T-Mobile US, Inc., et al., No. 2:16-cv-00052, E.D. Texas, 2017 U.S. Dist. LEXIS 142606).



Federal Circuit: Protocol Processing Patent Properly Held Obvious
WASHINGTON, D.C. - The Federal Circuit U.S. Court of Appeals on Sept. 6 upheld findings by the Patent Trial and Appeal Board that a patented apparatus and method for cryptographic processing with the serial advanced technology attachment (SATA) protocol is unpatentable under Section 103 of the Patent Act, 35 U.S.C. 103 (Enova Technology Corp. v. Seagate Technology LLC, et al., No. 16-1749, Fed. Cir., 2017 U.S. App. LEXIS 17173).



Federal Circuit Affirms That Eyewear Retainer Patent Is Obvious
WASHINGTON, D.C. - The Patent Trial and Appeal Board, following inter partes review (IPR), did not err in deeming all 17 claims of a patented eyewear retention device obvious to a person of skill in the art, the Federal Circuit U.S. Court of Appeals ruled Sept. 12 (Cablz Inc. v. Chums Inc., et al., No. 16-1823, Fed. Cir., 2017 U.S. App. LEXIS 17561).



New Jersey Federal Judge Transfers Patent Action To Minnesota Court
TRENTON, N.J. - Allegations of infringement involving a patented laser light decorative lighting apparatus should proceed in Minnesota federal court, a New Jersey federal judge ruled Sept. 6 (Telebrands Corp. v. Seasonal Specialties, No. 17-3390, D. N.J., 2017 U.S. Dist. LEXIS 143900).



Nevada Federal Judge Denies Patent Plaintiff Enhanced Damages
LAS VEGAS - On remand from the U.S. Supreme Court, a Nevada federal judge on Sept. 6 again denied a prevailing patent infringement plaintiff enhanced damages, even under the Supreme Court's newly announced standard for such awards (Halo Electronics Inc. v. Pulse Electronics Inc., et al., No. 07-331, D. Nev., 2017 U.S. Dist. LEXIS 143737).



Federal Judge Grants Motion For Judgment In Hookah Patent Infringement Suit
LOS ANGELES - A federal judge in California on Sept. 11 granted a hookah bowl maker's motion for default judgment against a hookah retailer and awarded the plaintiff $105,600 in damages, which includes attorney fees (Albert Kirakosian, et al. v. J&L Sunset Wholesale & Tobacco, et al., No. 2:16-cv-06097, C.D. Calif., 2017 U.S. Dist. LEXIS 147715).



Federal Circuit Panel Upholds $91M Verdict In Trade Secrets Lawsuit
WASHINGTON, D.C. - A federal district court did not err in denying a company's motion for a new trial following a jury's award of a $70 million verdict on claims for misappropriation of trade secrets and a federal judge's order requiring the company to pay an additional $21 million because a damages award in the action was not "against the clear weight of the evidence," a Federal Circuit U.S. Court of Appeals panel ruled Sept. 1 in affirming the lower court's ruling (CardiAQ Valve Technologies, Inc. v. Neovasc Inc., Nos. 17-1302, 17-1513, Fed. Cir., 2017 U.S. App. LEXIS 16856).



Trademark, Patent Infringement Judgment Upheld By Federal Circuit
WASHINGTON, D.C. - A Florida federal judge did not abuse his discretion or err in entering a final judgment of trademark and patent infringement against a defendant accused of selling a competing, knockoff hydradermabrasion system, the Federal Circuit U.S. Court of Appeals held Sept. 8 (Edge Systems LLC, et al. v. Rafael Newton Aguila, No. 16-2189, Fed. Cir., 2017 U.S. App. LEXIS 17365).



Patent Board Won't Rehear Denial Of Inter Partes Review
ALEXANDRIA, Va. - An expanded panel of the Patent Trial and Appeal Board on Sept. 6 announced that it won't reconsider its decision to deny five separate requests for inter partes review by General Plastic Industrial Co. Ltd., saying "multiple, staggered petition filings, such as those here, are an inefficient use of the inter partes review process and the Board's resources" (General Plastic Industrial Co. Ltd. v. Canon Kabushiki Kaisha, Nos. IPR2016-01357, IPR2016-01358, IPR2016-01359, IPR2016-01360, IPR2016-01361, PTAB).



Facebook Challenges Denial Of Inter Partes Review By Patent Board
ALEXANDRIA, Va. - A decision by the Patent Trial and Appeal Board to deny inter partes review of a digital streaming patent was "a manifest error," Facebook Inc. alleges in a Sept. 1 request for rehearing (Facebook Inc. v. Skyy LLC, No. IPR2017-00691, PTAB).



High-Voltage Switching Patent Is Obvious, Petitioner Tells Board
ALEXANDRIA, Va. - A claimed centralized control system for the management of distribution and sales of electricity in a spot market was targeted for inter partes review (IPR) by the Patent Trial and Appeal Board in a Sept. 6 petition (Electric Reliability Council of Texas v. GRID Innovations LLC, No. IPR2017-02033, PTAB).



Petitioner Tells Patent Board Semiconductor Testing Patent Is Obvious
ALEXANDRIA, Va. - In a Sept. 11 petition for inter partes review by the Patent Trial and Appeal Board, Mentor Graphics Corp. takes aim at a patent directed to a method and apparatus for semiconductor testing, asserting that generating test data and identifying an outlier in the test data "was well known" in the art (Mentor Graphics Corporation v. Eric Paul Tabor, No. IPR2017-02094, PTAB).



Patent Board Institutes Review Of System, Method For Controlling Trains
ALEXANDRIA, Va. - In a Sept. 14 ruling, the Patent Trial and Appeal Board found that Westinghouse Air Brake Technologies Corp. enjoys a reasonable likelihood of proving that various claims of a patented system and method of controlling a train are unpatentable (Westinghouse Air Brake Technologies Corp. v. Siemens Industries Inc., No. IPR2017-00981, PTAB).



Illinois Federal Judge: Copyright Dispute Over Updated Manual Can Proceed
CHICAGO - In a Sept. 6 order, an Illinois federal judge deemed allegations by a not-for-profit corporation that a defendant infringed a copyrighted accreditation manual adequately pleaded to survive a motion to dismiss (The Joint Commission of Accreditation of Healthcare Organizations v. Fortis Business Media LLC, No. 16-4724, N.D. Ill., 2017 U.S. Dist. LEXIS 144217).



With Similarity Lacking, California Federal Judge Dismisses Copyright Case
LOS ANGELES - Allegations that the sponsor of a screenwriting contest misappropriated one of the submissions for use in the hit ABC sitcom "Black-ish" were rejected Sept. 13 by a California federal judge, who found no similarity between the sitcom and the submission as required to maintain a claim of copyright infringement (David Lloyd Marcus v. ABC Signature Studios Inc., et al., No. 17-148, C.D. Calif., 2017 U.S. Dist. LEXIS 148568).



2nd Circuit Affirms Trademark Ownership, Laches Determinations
NEW YORK - The Second Circuit U.S. Court of Appeals on Sept. 8 upheld findings by a New York federal judge that a dispute over the "Kehot" trademark and a related logo is barred by the doctrine of laches, citing a 16-year delay between when the trademark owner learned of the unauthorized use and when it levied a counterclaim of infringement (Vaad L'Hafotzas Sichos Inc., et al. v. Merkos L'Inyonei Church Inc., Nos. 16-2934, -3364, 2nd Cir., 2017 U.S. App. LEXIS 17360).



New York Federal Judge Denies Dismissal, Sanctions In Trademark Dispute
BUFFALO, N.Y. - A New York federal magistrate judge's recommendation that a motion to dismiss trademark infringement and unfair competition allegations be denied was adopted in full on Sept. 5 by a New York federal judge, who agreed that the plaintiff "fleshes out its claim in considerable detail" and that the claims are not frivolous (Sit N' Stay Pet Services Inc. v. Carrie Hoffman, No. 17-116, W.D. N.Y., 2017 U.S. Dist. LEXIS 143206).



Texas Federal Judge Dismisses, With Leave To Amend, Trademark Claims
DALLAS - Allegations of trademark infringement against a nonprofit public charter school network and two entities that oversee the charter schools were dismissed Sept. 7 by a Texas federal judge, on grounds that the complaint fails to allege specific acts of infringement by specific defendants (Springboards to Education Inc. v. KIPP Foundation, et al., No. 16-2436, N.D. Texas, 2017 U.S. Dist. LEXIS 144709).



Mississippi Federal Judge Denies Relief In Trade Dress Dispute
GREENVILLE, Miss. - Allegations that two defendants infringed trade dress through their design and sale of bracelets featuring a "tapered clasp" and other confusingly similar jewelry will proceed without a preliminary injunction in place, a Mississippi federal judge ruled Sept. 5 (Ronaldo Designer Jewelry Inc. v. James B. Cox, et al., No. 17-2, N.D. Miss., 2017 U.S. Dist. LEXIS 143047).



Alabama Federal Judge Denies Injunctive Relief In Trademark Dispute
MOBILE, Ala. - A counterclaimant's request for a preliminary injunction while a declaratory judgment action regarding confusion over the "Spire" trademark is litigated was denied Sept. 11 when an Alabama federal judge found an absence of evidence that irreparable harm would result if an injunction is not issued (Spire Inc. v. Cellular South Inc., No. 17-266, S.D. Ala., 2017 U.S. Dist. LEXIS 146169).



Judge Dismisses Claims Related To Infringement Of Jewelry Trademarks
SAN FRANCISCO - After finding a lack of federal and subject matter jurisdiction, a California federal judge on Sept. 8 granted a jewelry maker's motion to dismiss claims related to alleged intellectual property infringement but granted a jeweler leave to file a third amended complaint to assert claims for violation of the Declaratory Judgment and Lanham acts (Marco Bicego S.P.A., et al. v. Stephanie Kantis, et al., No. 17-cv-00927, N.D. Calif., 2017 U.S. Dist., 2017 U.S. Dist. LEXIS 145865).



Judge Grants Discovery Request Related To Illegal Amazon, EBay Sales
SAN FRANCISCO - A California federal judge on Sept. 1 granted a motion filed by a distributor of trademarked and copyrighted products and designs that alleges that a retailer violated trademark law and California's unfair competition law (UCL) by selling counterfeited items online, granting its request for limited discovery from online retailers regarding the defendant's sales and aliases (Jessie Steel, Inc. v. Linda Ann Henderson, No. 17-cv-02179, N.D. Calif., 2017 U.S. Dist. LEXIS 142167).



Black & Decker Loses Out On $54M Trademark Verdict Due To Expert's Flawed Survey
CHICAGO - Two companies got a $54 million trademark infringement verdict against them tossed Sept. 11 when an Illinois federal judge granted them a new trial based on the unreliability and irrelevance of expert testimony regarding the likelihood of consumer confusion about the products at issue, which the judge said probably "unfairly influenced the jury's verdict" (The Black & Decker Corporation, et al. v. Positec USA Inc., et al., No. 11-cv-5426, N.D. Ill., 2017 U.S. Dist. LEXIS 147463).



Parties, PTO Brief High Court On Requirements Of Inter Partes Review Scope
WASHINGTON, D.C. - In a pair of Sept. 5 respondent briefs, the interim director of the U.S. Patent and Trademark Office (PTO) and a patent holder tell the U.S. Supreme Court that when the Trademark Trial and Appeal Board (TTAB) institutes inter partes review (IPR) of the validity of patent claims, it is not required to review or rule on every patent claim asserted in a party's petition for review (SAS Institute Inc. v. Joseph Matal, et al., No. 16-969, U.S. Sup.).



Apple, Samsung Brief On 'Article Of Manufacture' In Remanded Design Patent Case
SAN JOSE, Calif. - In briefs filed Sept. 8 in response to a California federal judge's directive after rulings and remand orders from the U.S. Supreme Court and the Federal Circuit U.S. Court of Appeals, Apple Inc. and Samsung Electronics Co. Ltd. address questions about how to determine what the relevant "article of manufacture" is of products accused infringing a design patent and, relatedly, how to identify profits attributable to the article (Apple Inc. v. Samsung Electronics Co. Ltd., et al., No. 5:11-cv-01846, N.D. Calif.).



Claim Construction By Patent Board Debated Before Federal Circuit
WASHINGTON, D.C. - In oral arguments on Sept. 8, the Federal Circuit U.S. Court of Appeals heard an appeal of a Patent Trial and Appeal Board ruling that two claims of a patented tissue graft composed of the two primary layers of the human placenta patent would have been obvious to a person of skill in the art (POSITA) (MiMedx Group Inc. v. Musculoskeletal Transplant Foundation, No. 17-1043, Fed. Cir.).



Oral Arguments Approach In Patent Dispute Over Safe Harbor
WASHINGTON, D.C. - The Federal Circuit U.S. Court of Appeals on Oct. 4 will hear oral arguments in a case that poses the question of whether safe harbor protection for clinical activities can be repealed based upon the use of data derived subsequent to approval (Classen Immunotherapies Inc. v. Elan Pharmaceuticals Inc., No. 17-1033, Fed. Cir.).