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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®



 



Federal Circuit Affirms: 4 Patents Claim Ineligible Subject Matter
WASHINGTON, D.C. - The Federal Circuit U.S. Court of Appeals on April 9 found no error in an Illinois federal judge's determination that four patents claiming an "electronic means of increasing user control over subscription entertainment content" are ineligible for protection under Section 101 of the Patent Act, 35 U.S.C. 101 (Maxon LLC v. Funai Corporation Inc., No. 17-2139, Fed. Cir.).



Federal Circuit Upholds Obviousness Finding In Win For Patent Challengers
WASHINGTON, D.C. - In an April 2 holding, the Federal Circuit U.S. Court of Appeals confirmed findings by the Patent Trial and Appeal Board that all claims of a stacked semiconductor patent would have been obvious under pre-America Invents Act Section 103, 35 U.S.C. 103, in light of three pieces of prior art (Raytheon Company v. Sony Corp., et al, Nos. 2017-1554, -1556, -1557, Fed. Cir.).



Federal Circuit: Needle Stick Patent Would Have Been Obvious, Anticipated
WASHINGTON, D.C. - The Patent Trial and Appeal Board correctly deemed nine claims of a patented device designed to eliminate needle stick injuries anticipated or obvious, according to an April 3 ruling by the Federal Circuit U.S. Court of Appeals (EMED Technologies Corporation v. Repro-Med Systems Inc., No. 17-1547, Fed. Cir.).



Federal Circuit Sides With Apple, Affirms Outcome Of Inter Partes Review
WASHINGTON, D.C. - In a per curiam order issued April 6, the Federal Circuit U.S. Court of Appeals turned away an appeal by a patent owner of obviousness findings by the Patent Trial and Appeal Board, in a win for Apple Inc. (Comarco Wireless Technologies v. Apple Inc., No. 17-1929, Fed. Cir.).



Delaware Patent Dispute Over Generic Drug Survives Judgment On The Pleadings
WILMINGTON, Del. - A Delaware federal magistrate judge on April 2 recommended rejection of a jurisdictional challenge to an action seeking a declaratory judgment of induced patent infringement stemming from, among other things, dosing instructions for a proposed generic drug (Ferring Pharmaceuticals Inc., et al., v. Novel Laboratories Inc., et al., No. 17-894, D. Del., 2018 U.S. Dist. LEXIS 55659).



Dell Wins Dismissal Of Texas Contributory Patent Infringement Claim
AUSTIN, Texas - A Texas federal judge on April 4 granted a motion to dismiss a contributory infringement claim against Dell Inc. in a dispute over patented automated software updates and wireless network selection operations (Iron Oak Technologies LLC v. Dell Inc., No. 17-999, W.D. Texas, 2018 U.S. Dist. LEXIS 57309).



Federal Circuit Dismisses Appeal Of Exceptionality Finding In Patent Case
WASHINGTON, D.C. - A pro se appellant seeking reversal of a California federal judge's decision to award attorney fees to a prevailing patent infringement defendant was turned away by the Federal Circuit U.S. Court of Appeals on April 6, amid findings that the appellant failed to challenge the award at the time (Ira Pazandeh v. Yamaha Corporation of America, No. 18-1275, Fed. Cir., 2018 U.S. App. LEXIS 8814).



Federal Circuit Upholds Finding That Video Games Did Not Infringe Patent
WASHINGTON, D.C. - Amendments made by a patentee to overcome an anticipation rejection by the U.S. Patent and Trademark Office (USPTO) limited the invention in such a way that accused products by Microsoft Corp. and others cannot infringe, the Federal Circuit U.S. Court of Appeals ruled April 9 (Richard Baker v. Microsoft Corp., et al., No. 17-2357, Fed. Cir.).



Federal Circuit Upholds Patent Examiner, Board's Rejection Of Folate Treatment Claims
WASHINGTON, D.C. - The Patent Trial and Appeal Board did not err in affirming a patent examiner's finding that various claims of a patent application covering the use of folates for the prevention and treatment of vascular diseases would have been obvious to a person of skill in the art, the Federal Circuit U.S. Court of Appeals ruled April 11 (In re: Merck & Cie, No. 17-1960, Fed. Cir.).



Inventor Seeks Dismissal Of Counterclaims Related To Glassware Feature Patents
SEATTLE - An inventor on April 10 moved in a Washington federal court to dismiss counterclaims asserted against him in which a company and its owners seek declarations that they did not violate California's unfair competition law (UCL), the Lanham Act and other laws in relation to allegedly copied patented designs (Elliot Kremerman v. Open Source Steel, LLC, et al., No. 2:17-cv-953, W.D. Wash., 2017 U.S. Dist. LEXIS 171735).



Post-Grant Review Of Small Interfering RNA Molecule Patent Sought
ALEXANDRIA, Va. - In an April 2 petition for post-grant review (PGR) filed with the Patent Trial and Appeal Board, a pharmaceutical company warns that allowing small interfering ribonucleic acid (siRNA) molecules to be patented could create a risk of "blocking or delaying life-extending, disease modifying technologies" (Alnylam Pharmaceuticals Inc. v. Silence Therapeutics GmbH, No. PGR2018-00059, PTAB).



Covered Business Method, Inter Partes Review Of Same Patent Sought By Apple
ALEXANDRIA, Va. - In three petitions filed with the Patent Trial and Appeal Board on April 4, Apple Inc. took aim at a patented mobile transaction approval system (Apple Inc. v. Universal Secure Registry LLC, Nos. CBM2018-00022, IPR2018-00808, IPR2018-00809, PTAB).



Board Rejects Challenge Of Blood Clotting Protein Patent In Final Decision
ALEXANDRIA, Va. - Allegations that a claimed method for improving the viral safety of liquid compositions comprising "Factor VII" (FVII) - a protein involved in the blood clotting process - is obvious were not proven by a preponderance of the evidence, the Patent Trial and Appeal Board ruled April 5 (Laboratoire Francais du Fractionnement et des Biotechnologies S.A. v. Novo Nordisk Healthcare AG, No. IPR2017-00028, PTAB).



Denying Leave To Amend, Board Finds Semiconductor Patent Obvious, Anticipated
ALEXANDRIA, Va. - In a final written decision issued April 11, the Patent Trial and Appeal Board agreed with inter partes review (IPR) petitioner Samsung Electronics Co. Ltd. that 21 claims of a patent relating to the semiconductor fabrication process are unpatentable under Sections 102 and 103 of the Patent Act, 35 U.S.C. 102(b), 103(a) (Samsung Electronics Co. Ltd. v. Promos Technologies Inc., No. IPR2017-00037, PTAB).



Symantec Proxy Server Patent Targeted For Inter Partes Review
ALEXANDRIA, Va. - In an April 11 petition, an information security company tells the Patent Trial and Appeal Board that 14 claims of a Symantec Corp. patent would have been obvious to a person of ordinary skill in the art, in view of a combination of two prior art patent applications (Zscaler Inc. v. Symantec Corp., No. IPR2018-00912, PTAB).



9th Circuit Upholds Denial Of Attorney Fees In Trademark, UCL Case
SAN FRANCISCO - A California federal judge did not abuse his discretion in refusing to declare a trademark dispute between operators of Thai restaurants in California "exceptional" under the Lanham Act, 15 U.S.C. 1117(a), the Ninth Circuit U.S. Court of Appeals ruled March 30 (Tritaporn Sirisup and Sirisup Inc. v. It's Thai LLC, et al., No. 16-55875, 9th Cir., 2018 U.S. App. LEXIS 8119).



Lanham Act Claim Against Watchmaker, Jeweler Will Proceed In California Court
SAN FRANCISCO - A California federal magistrate judge on April 4 granted two defendants summary judgment on allegations that their use of a former astronaut's name, title, photo and voice in an advertisement without his permission represented a negligent and intentional infliction of emotional distress (Colonel David Randolph Scott v. Citizen Watch Company of America Inc., et al., No. 17-436, N.D. Calif., 2018 U.S. Dist. LEXIS 57672).



California Federal Judge: False Advertising Dispute Subject To Arbitration
SAN FRANCISCO - Although dismissing allegations by one plaintiff that LegalZoom.com Inc. violated the Lanham Act, 15 U.S.C. 1051 et seq., when it advertised itself as a non-practicing legal entity, a California federal judge on April 11 stayed identical claims by a co-plaintiff, in view of an arbitration agreement between the parties (LegalForce RAPC, et al. v. LegalZoom Inc., No. 17-7194, N.D. Calif., 2018 U.S. Dist. LEXIS 60986).



Florida Federal Judge Reconsiders Ruling On Trademark Counterclaim
MIAMI - In two orders issued April 6, a Florida federal judge largely denied a defendant summary judgment on allegations of trademark misuse but also reconsidered her March 2 ruling that barred the defendant from seeking cancellation of the trademark in question on grounds of confusing similarity with two other previously registered marks (Royal Palm Properties LLC v. Pink Palm Properties LLC, No. 17-80476, S.D. Fla., 2018 U.S. Dist. LEXIS 58997).



Supreme Court Won't Review Dispute Over Architectural Works
WASHINGTON, D.C. - In its April 2 orders list, the U.S. Supreme Court denied certiorari in a copyright dispute that posed the question of whether the Architectural Works Copyright Protection Act (AWCPA) was violated by a Hawaii federal judge's grant of an unremunerated, involuntary, sua sponte implied license (Frost-Tsuji Architects v. Highway Inn Inc., et al., No. 17-1025, U.S. Sup.).



New York Federal Judge: Copyright Dispute Over 'Anastasia' Can Proceed
NEW YORK - Citing the need for a "detailed examination" of the 1940s fictionalized play "Anastasia" and a more recent musical adaptation of the same name, a New York federal judge on April 2 denied a motion for summary judgment of no substantial similarity, writing that "there are material facts in dispute" (Jean-Etienne de Becdelievre, et al. v. Terrance McNally, et al., No. 16-9471, S.D. N.Y., 2018 U.S. Dist. LEXIS 55815).



5th Circuit Rules Against Redfin, Remands Copyright Dispute To Texas Court
NEW ORLEANS - In granting an infringement defendant summary judgment, a Texas federal judge "erred by conflating" the copyright holder's federal statutory cause of action with a downstream licensee's state contract law defense, the Fifth Circuit U.S. Court of Appeals ruled April 9 (Alexander Stross v. Redfin Corporation, No. 17-50046, 5th Cir., 2018 U.S. App. LEXIS 8913).



Suit Not Subject To Federal Jurisdiction Under Trade Secret Law, Judge Rules
TEXARKANA, Ark. - A federal judge in Arkansas on April 11 remanded a lawsuit to state court, ruling that although a defendants' temporary restraining order (TRO) cited Arkansas' trade secret law, it did not justify removal to federal court because it did not cite any violations of federal copyright law as required under 28 U.S. Code Section 1447(c) (Warren Hanson, et al. v. Steven K. Randall, et al., No. 18-4025, W.D. Ark., 2018 U.S. Dist. LEXIS 61330).



Record Labels' Unfair Competition Claim Against Vimeo Mostly Dismissed
NEW YORK - The safe harbor from copyright infringement liability provided to online service providers under the Digital Millennium Copyright Act (DMCA) extends to claims that sound in copyright infringement, a New York federal judge ruled March 31, mostly dismissing an unfair competition claim brought against video-sharing service provider Vimeo LLC by a group of record labels (Capitol Records LLC, et al. v. Vimeo LLC, et al., No. 1:09-cv-10101 and -10105, S.D. N.Y., 2018 U.S. Dist. LEXIS 56049).



Oral Arguments Held In Patent Dispute Over Zolmitriptan Nasal Spray
WASHINGTON, D.C. - A patent infringement defendant at oral arguments on April 5 told the Federal Circuit U.S. Court of Appeals that a Delaware federal judge committed reversible errors of law in finding that a patented formulation of zolmitriptan suitable for intranasal administration was nonobvious (Lannett Holdings Inc. v. Impax Laboratories Inc., et al., No. 17-2020, Fed. Cir.).



Damages For Foreign Patent Infringement Argued In Supreme Court Briefs
WASHINGTON, D.C. - A patent holder tells the U.S. Supreme Court in an April 9 reply brief that the presumption against extraterritorial application of U.S. law does not preclude a patentee from being awarded damages for foreign infringement when the resulting injury was domestic (WesternGeco LLC v. ION Geophysical Corp., No. 16-1011, U.S. Sup.).



On Remand From Supreme Court, Federal Circuit Holds Arguments In Laches Dispute
WASHINGTON, D.C. - A patent owner on April 6 told the Federal Circuit U.S. Court of Appeals at oral arguments that the U.S. Supreme Court's rulings on laches in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 137 S. Ct. 954, 967 (2017), and Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2013), compels reversal of a New York federal judge's decision to deny a request for relief under Federal Rule of Civil Procedure 60(b)(6), Fed. R. Civ. P. 60(b)(6) (Medinol Ltd. v. Cordis Corporation and Johnson & Johnson, No. 15-1027, Fed. Cir.).



Validity Of Messaging Patent Debated In Briefs Before Federal Circuit
WASHINGTON, D.C. - In an April 2 appellee brief, a patent owner defends a decision by the Patent Trial and Appeal Board (PTAB or board) that rejected allegations of obviousness by WhatsApp Inc. and Facebook Inc. (WhatsApp Inc., et al. v. TriPlay Inc., Nos. 17-2549, -2551, Fed. Cir.).



Parties Brief Dispute Over Voice, Video Transmission Patents Before Federal Circuit
WASHINGTON, D.C. - A Delaware federal judge's construction of "signal interface" as inclusive of an implicit positional limitation was erroneous, a patent owner tells the Federal Circuit U.S. Court of Appeals in a recent brief (United Access Technologies LLC v. AT&T Corporation, et al., Nos. 2017-2614, -2615, -2616, 2018-1030, -1031, -1032, Fed. Cir.).



Band Members Argue Ownership, Infringement Of 'Ratt' Trademark In 9th Circuit
SAN FRANCISCO - The former bassist for Ratt defends his ownership rights in the band's trademarks in an April 6 cross-appellant brief, asking the Ninth Circuit U.S. Court of Appeals to affirm a trial court's finding that the purported transfer of the marks' ownership was ineffective (WBS Inc. v. Juan Croucier, et al., No. 17-55973 and 17-56009, 9th Cir.).



Amici Support En Banc Rehearing Of Fair Use Suit Over Media-Monitoring Service
NEW YORK - A group of amici curiae, comprising nonprofit and media critic organizations, filed a brief April 3 urging the Second Circuit U.S. Court of Appeals to rehear a case in which a panel majority found certain aspects of an online media-monitoring service use of copyrighted materials to not be fair use, despite deeming the use transformative (Fox News Network LLC v. TVEyes Inc., No. 15-3885, 2nd Cir.).



Federal Circuit Sides With Oracle, Orders New Trial On Copyright Damages
WASHINGTON, D.C. - A California federal judge erroneously denied Oracle America Inc. judgment as a matter of law (JMOL) with regard to Google Inc.'s invocation of fair use as a defense to Oracle's claims of copyright infringement, the Federal Circuit U.S. Court of Appeals ruled March 27 (Oracle America Inc. v. Google Inc., Nos. 17-1118, -1202, Fed. Cir.).



Divided 9th Circuit Sides With Gaye's Children In 'Blurred Lines' Copyright Case
SAN FRANCISCO - In a March 21 ruling, a divided Ninth Circuit U.S. Court of Appeals largely affirmed a California federal judge's handling of a high-profile copyright dispute involving the 2013 hit song "Blurred Lines" and Marvin Gaye's "Got To Give It Up," which the panel agreed was infringed (Pharrell Williams, et al. v. Frankie Christian Gaye, et al., No. 15-56880, 16-55089 and 16-55626, 9th Cir.).



2nd Circuit: FedEx Did Not Infringe Materials Covered By Public License
NEW YORK - Allegations that FedEx Office and Print Services Inc. committed infringement when it reproduced various copyrighted works at the request of school district licensees for noncommercial purposes were properly dismissed, the Second Circuit U.S. Court of Appeals ruled March 21 (Great Minds v FedEx Office and Print Services Inc., No. 17-808, 2nd Cir., 2018 U.S. App. LEXIS 7035).



11th Circuit Confirms Res Judicata Ruling In Copyright, Lanham Act Case
ATLANTA - A decision by a Florida federal judge to dismiss, on res judicata grounds, allegations of copyright infringement and violations of the Lanham Act, 15 U.S.C. 1125 et seq., was not erroneous, the 11th Circuit U.S. Court of Appeals ruled March 22 (Eric Ferrier v. James V. Atria, No. 17-11261, 11th Cir., 2018 U.S. App. LEXIS 7467).



Delaware Federal Judge Tosses $235.5 Million Award In Patent Case
WILMINGTON, Del. - A jury's verdict of willful, induced infringement of a patent relating to the beta-blocking drug Coreg is not supported by substantial evidence, a Delaware federal judge ruled March 28, citing "multiple factors, unrelated" to a defendant drug maker's label that "actually caused" doctors to prescribe generic carvedilol tablets as a treatment for chronic heart failure (CHF) (GlaxoSmithKline LLC, et al. v. Teva Pharmaceuticals USA Inc., No. 14-878, D. Del., 2018 U.S. Dist. LEXIS 51169).



Federal Circuit Upholds Patent Board Refusal Of New Evidence On Remand
WASHINGTON, D.C. - On remand from the Federal Circuit U.S. Court of Appeals, the Patent Trial and Appeal Board did not err in refusing to consider new arguments by an inter partes review (IPR) challenger and a proposed response by the owner of a patented computer network appliance, the Federal Circuit ruled March 19 (Dell Inc. v. Acceleron LLC, No. 17-1101, Fed. Cir., 2018 U.S. App. LEXIS 6834).



Divided Federal Circuit: Insufficient Explanation Given For Invalidating Patent
ALEXANDRIA, Va. - A June 2016 finding by the U.S. Patent and Trademark Office (PTO)'s Patent Trial and Appeal Board that six claims of a data network power consumption patent would have been obvious to a person of skill in the art was not sufficiently explained in the board's final written decision, the Federal Circuit U.S. Court of Appeals ruled March 23, in a loss for Apple Inc. (DSS Technology Management Inc. v. Apple Inc., Nos. 16-2523, -2524, Fed. Cir., 2018 U.S. App. LEXIS 7438).



Magistrate Judge: Fracking Patent Not Invalid Due To 'Indefiniteness'
DENVER - A federal magistrate judge in Colorado on March 9 defined disputed terms in a fracking patent dispute and determined that the patent in question was not invalid due to "indefiniteness," as was argued by a company that was sued for patent infringement (Frac Shack Inc. v. Fuel Automation Station LLC, et al., No. 16-2275, D. Colo.; 2018 U.S. Dist. LEXIS 39505).



Patent Owner Prevails Before Federal Circuit In Appeal Of Re-Examination
WASHINGTON, D.C. - A decision by the Patent Trial and Appeal Board that rejected as anticipated four claims of a power supply patent was based upon an "unreasonably" broad construction of the disputed claim term "coupled," the Federal Circuit U.S. Court of Appeals ruled March 19 (In re: Power Integrations Inc., No. 17-1304, Fed. Cir.).



Citing Erroneous Claim Construction, Federal Circuit Vacates $12.3 Million Award
WASHINGTON, D.C. - Because a jury's verdict of infringement was premised on an incorrect claim construction by a California federal judge, the Federal Circuit U.S. Court of Appeals on March 22 vacated a $12.3 million damage award in the case, as well as the judge's award of supplemental damages (Cave Consulting Group v. OptumInsight Inc., No. 17-1060, Fed. Cir.).



Testimony On Disputed Terms In Fracking Patent Document 'Constrained,' Judge Says
MARSHALL, Texas - A judge in the U.S. District Court for the Eastern District of Texas on March 15 ruled in favor of a fracking company regarding its understanding of terms in a document related to a patent dispute and held that the parties should ensure that all testimony at trial that relates to disputed terms is "constrained by the Court's reasoning" (Enerpol LLC v. Schlumberger Technology Corporation, No. 17-394, E.D. Texas, 2018 U.S. Dist. LEXIS 42288).



Federal Circuit Sides With Google, Says Patent Board Construction Too Narrow
WASHINGTON, D.C. - Findings by the Patent Trial and Appeal Board that four digital identification patents were not proven to be unpatentable as anticipated or obvious by inter partes review (IPR) petitioner Google Inc. were vacated and remanded March 26 by the Federal Circuit U.S. Court of Appeals (Google Inc. v. Network-1 Technologies Inc., Nos. 16-2509, -2510, -2511, -2512, Fed. Cir.).



Federal Circuit Upholds Denial Of Attorney Fees In Patent Litigation
WASHINGTON, D.C. - A Delaware federal judge did not err in finding that claims that an ultimately invalidated patent was infringed were not exceptional under Section 285 of the Patent Act, 35 U.S.C. 285, the Federal Circuit U.S. Court of Appeals ruled March 22 (Sarif Biomedical LLC v. Brainlab Inc., et al., No. 17-1103, Fed. Cir.).



Patent Case Against Xerox Dismissed, With Leave To Amend, By Nebraska Judge
OMAHA, Neb. - In a March 21 memorandum and order, a Nebraska federal judge agreed with Xerox Corp. that allegations that the photocopier and printer manufacturer infringed directly and under the doctrine of equivalents 20 patents do not pass muster under Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), and therefore must be dismissed (Midwest Athletics and Sports Alliance LLC v. Xerox Corporation, No. 17-478, D. Neb., 2018 U.S. Dist. LEXIS 45002).



Federal Trade Secret Misappropriation Claim Found To Be Insufficient
SAN FRANCISCO - A software company has failed to provide sufficient detail to show that its competitor and several former employees violated the Defend Trade Secrets Act (DTSA) by misappropriating its trade secret information to get its competing product to market before the company, a federal judge in California ruled March 23 in granting in part a defendant's motion to dismiss (Vendavo Inc. v. Price f[x] AG, et al., No. 17-6930, N.D. Calif., 2018 U.S. Dist. LEXIS 48637).



Patent Board: Radio Frequency Identification Tag Is Anticipated, Obvious
ALEXANDRIA, Va. - Nine claims of a patent relating to a radio frequency identification (RFID) tag that can be activated and deactivated with a switch device were deemed unpatentable March 20 by the Patent Trial and Appeal Board, which also rejected the patent owner's proposal to substitute nine new claims as prohibited by The America Invents Act, 35 U.S.C. 316(d)(3) (Kapsch Trafficom IVHS Inc. v. Neology Inc., No. IPR2016-01763, PTAB).



L'Oreal Challenges UMass Patent In New Petition For Inter Partes Review
ALEXANDRIA, Va. - A patent relating to a method of treating wrinkles with compositions containing adenosine or an adenosine analog would have been obvious to a person of skill in the art (POSITA), L'Oreal USA Inc. asserts in a March 20 petition for inter partes review (IPR) by the Patent Trial and Appeal Board (L'Oreal USA Inc. v. University of Massachusetts, et al., No. IPR2018-00779, PTAB).



Petitioner Tells Board: Securities Trading Patent Covers Abstract Idea
ALEXANDRIA, Va. - An International Securities Exchange LLC patent relating to securities trading was targeted for covered business method (CBM) review in a March 23 petition filed with the Patent Trial and Appeal Board (Miami International Holdings Inc., et al., v. International Securities Exchange LLC, No. CBM2018-00021, PTAB).



Netflix Prevails Before Patent Board In Inter Partes Review Proceeding
ALEXANDRIA, Va. - In a final written decision issued March 26, the Patent Trial and Appeal Board agreed with Netflix Inc. that a patented delivery system for digitally stored content, including audio, video and textual information, would have been obvious to a person of skill in the art (Netflix Inc. v. Affinity Labs of Texas LLC, No. IPR2017-00122, PTAB).



Kroger Requests Review Of Patented Formulation For Reduced Calorie Foods
ALEXANDRIA, Va. - A patent reciting the addition of a resistant starch to food to reduce calorie content is unpatentable as anticipated and obvious, The Kroger Co. asserts in a March 23 petition for inter partes review (IPR) by the Patent Trial and Appeal Board (The Kroger Co., et al., v. Healthy Fiber LLC, No. IPR2018-00824, PTAB).



Contributory Trademark Liability Question Certified For Appeal To 6th Circuit
DETROIT - Although indicating his disagreement with a defendant's interpretation of the relevant case law, a Michigan federal judge on March 27 nonetheless certified for interlocutory appeal his earlier ruling that the defendant - the operator of a consumer-based review website - can be held contributorily liable for alleged direct trademark infringement (Reliable Carriers Inc. v. MovingSites LLC, No. 17-10971, E.D. Mich., 2018 U.S. Dist. LEXIS 49904).



11th Circuit Upholds Dismissal Of Karaoke Company's Lanham Act Case
ATLANTA - The 11th Circuit U.S. Court of Appeals on March 13 found that a karaoke disc jockey's display of the "Sound Choice" service mark as part of his karaoke accompaniment tracks is unlikely to confuse consumers into believing that the DJ is associated or affiliated with the mark owner (Phoenix Entertainment Partners LLC v. Casey Road Food and Beverage LLC, et al., No. 17-13043, 11th Cir., 2018 U.S. App. LEXIS 6486).



6th Circuit Affirms Summary Judgment For Coach In Counterfeiting Case
CINCINNATI - A Michigan federal judge did not err in granting summary judgment to Coach Services Inc. and others or in awarding statutory damages and a permanent injunction in a dispute over counterfeit Coach purses and wallets, the Sixth Circuit U.S. Court of Appeals ruled March 15 (Coach Services Inc., et al. v. Source II Inc., et al., No. 17-1546, 6th Cir., 2018 U.S. App. LEXIS 6398).



Illinois Federal Judge Orders Cancellation Of 'Capsule' Trademark
CHICAGO - In a March 26 ruling, an Illinois federal judge deemed the "capsule" trademark for use in connection with "cases specifically adapted for protection and storage of consumer electronics, namely, cellular phones and mobile media players" merely descriptive and lacking secondary meaning (Uncommon LLC v. Spigen Inc., No. 15-10897, N.D. Ill., 2018 U.S. Dist. LEXIS 48806).



California Federal Judge: Rule 9(b) Inapplicable To Trademark Infringement
SAN DIEGO - Although agreeing with a defendant that allegations of false designation of origin and false advertising under the Lanham Act, 15 U.S.C. 1125(a)(1)(A-B), are inadequately pleaded pursuant to Rule 9(b) of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 9(b), a California federal judge on March 28 stopped short of applying the heightened pleading standard to a related claim for trademark infringement (Julian Bakery Inc. v. Healthsource International Inc., No. 16-2594, S.D. Calif., 2018 U.S. Dist. LEXIS 52248).



Judge Dismisses Suit Seeking Coverage For Claims That Insured Stole Trade Secrets
PHILADELPHIA - A Pennsylvania federal judge on March 15 granted a commercial general liability insurer's motion to dismiss an insured's declaratory judgment lawsuit seeking coverage for underlying claims that it stole a competitor's employees and trade secrets to develop and sell competing products, finding that the policy's libel and slander coverage provision was not triggered (TELA Bio, Inc., et al. v. Federal Insurance Company, No. 16-5585, E.D. Pa., 2018 U.S. Dist. LEXIS 43221).



Petition Challenging Inter Partes Review Presents No Unique Issue, Respondents Say
WASHINGTON, D.C. - In a March 26 opposition brief, four respondents that successfully challenged a software anti-piracy patent tell the U.S. Supreme Court that the patentee's petition for certiorari challenging the constitutionality of inter partes review (IPR) raises no new issues that will not be addressed by its pending ruling in Oil States Energy Services LLC v. Greene's Energy Group LLC (Uniloc USA Inc., et al. v. SEGA of America Inc., et al., No. 17-1018, U.S. Sup.).



Parties Again Square Off In Federal Circuit Appeal Of Patent Board Ruling
WASHINGTON, D.C. - In what the Federal Circuit U.S. Court of Appeals has styled a "companion" case to a dispute involving a related patent, United Technologies Corp. (UTC) and General Electric Co. (GE) recently completed briefing in another dispute over an inter partes review (IPR) by the Patent Trial and Appeal Board, in which various claims of a UTC gas turbofan engine patent were deemed anticipated or obvious (United Technologies Corp. v. General Electric Co., No. 18-1020, Fed. Cir.).



Federal Circuit Poised To Hear Arguments In Dispute Over Device-Charging Patent
WASHINGTON, D.C. - A panel of the Federal Circuit U.S. Court of Appeals will hold oral arguments April 2 in a patent owner's appeal of an adverse inter partes review (IPR) initiated by Apple Inc. (Comarco Wireless Technologies v. Apple Inc., No. 17-1929, Fed. Cir.).



Reply Brief Filed; Oral Arguments Held Before En Banc Federal Circuit
WASHINGTON, D.C. - A dispute over the availability of attorney fees for the U.S. Patent and Trademark Office (USPTO) upon a successful defense of a rejected patent application is now before the Federal Circuit U.S. Court of Appeals following en banc oral arguments on March 8 (NantKwest Inc. v. Joseph A. Matal, Acting Director U.S. Patent and Trademark Office, No. 16-1794, Fed. Cir.).



Omaha Steaks Appeals Rejection Of Trademark Opposition To Federal Circuit
WASHINGTON, D.C. - A September 2017 final order by the Trademark Trial and Appeal Board that turned away Omaha Steaks International Inc.'s opposition to a trademark application for "Greater Omaha Providing The Highest Quality Beef" is at the center of a dispute before the Federal Circuit U.S. Court of Appeals (Omaha Steaks International Inc. v. Greater Omaha Packing Co. Inc., No. 18-1152, Fed. Cir.).



Default Judgment In 'DermaPen' Trademark Suit Argued Before 10th Circuit
DENVER - The Tenth Circuit U.S. Court of Appeals on March 21 heard arguments from the parties in a dispute over U.S. rights to the "DermaPen" trademark, with arguments focusing on whether a trial court properly entered default judgment against the underlying defendants for failure to comply with a court order requiring them to retain counsel (Steve Marshall v. Derma Pen LLC, No. 17-4096, 10th Cir.).



Fair Use Of Dr. Seuss' 'Grinch' By Playwright Debated In 2nd Circuit
NEW YORK - In a March 26 reply brief, Dr. Seuss Enterprises L.P. (DSE), which holds the rights to all of Dr. Seuss' works, tells the Second Circuit U.S. Court of Appeals that a New York playwright's use of elements from "How the Grinch Stole Christmas!" in a purported parody infringed the famous children's author's copyrights and did not constitute fair use (Matthew Lombardo, et al. v. Dr. Seuss Enterprises L.P., No. 17-2952, 2nd Cir.).



Media-Monitoring Service Seeks Rehearing Of Fair Use Ruling For Fox News
NEW YORK - Less than a month after a Second Circuit U.S. Court of Appeals panel found its online media-monitoring service to not be fair use and, thus, infringing of Fox News Network LLC's copyrighted content, TVEyes Inc. on March 20 petitioned the court for rehearing en banc, seeking reconsideration of the panel's market harm analysis (Fox News Network LLC v. TVEyes Inc., No. 15-3885, 2nd Cir.).



Federal Circuit Rules Against Google, Vacates Dismissal Of Patent Case
WASHINGTON, D.C. - A Texas federal judge erred in dismissing a patent infringement complaint against Google Inc. because the district court improperly presumed that terminally disclaimed continuation patents were patentably indistinct variations of their parent patents without analyzing the claims' scope, the Federal Circuit U.S. Court of Appeals ruled March 12 (SimpleAir Inc. v. Google Inc., No. 16-2738, Fed. Cir.).



Divided Federal Circuit Upholds Patent Eligibility Ruling, Vacates Damages
WASHINGTON, D.C. - In a March 8 decision, a panel majority of the Federal Circuit U.S. Court of Appeals found that a Massachusetts federal judge did not err in denying judgment as a matter of law (JMOL) that 12 claims of two patents are ineligible for patenting under Section 101 of the Patent Act, 35 U.S.C. 101, but reversed a verdict that three claims of one of the patents in suit was infringed (Exergen Corporation v. Kaz USA Inc., No. 16-2315, -2341, Fed. Cir.).



Divided Federal Circuit Finds No Preclusion, Upholds Rejection Of Patent Claims
WASHINGTON, D.C. - An inter partes re-examination decision by the Patent Trial and Appeal Board (PTAB) that nine patent claims are invalid as anticipated and lacking written description was not erroneous, a divided Federal Circuit U.S. Court of Appeals ruled March 2 (Knowles Electronics LLC v. Cirrus Logic Inc., No. 16-2010, Fed. Cir., 2018 U.S. App. LEXIS 5228).



Federal Circuit Affirms Dismissal Of Patent Claims Against McDonald's
WASHINGTON, D.C. - Allegations by a patent owner that McDonald's Corp., through its use of third-party credit authorization networks, directly infringed two patents covering a system for managing digital data were properly dismissed by an Illinois federal judge, the Federal Circuit U.S. Court of Appeals ruled March 6 (William Grecia v. McDonald's Corporation, No. 17-1672, Fed. Cir.).



Rejection Of Patent Claims Against Automakers Affirmed By Federal Circuit
WASHINGTON, D.C. - A New York federal judge did not err in granting several automakers summary judgment on allegations of infringement of a book holder patent or in dismissing an inventor's claim with prejudice with regard to several other automakers, the Federal Circuit U.S. Court of Appeals ruled March 7 (Chikezie Ottah v. Fiat Chrysler, et al., No. 17-1842, Fed. Cir.).



9th Circuit Orders Supplemental Briefing In Patent Office FOIA Dispute
SAN FRANCISCO - Less than one month after oral arguments in a case that pits a patent renewal firm against the U.S. Patent and Trademark Office (USPTO), the Ninth Circuit U.S. Court of Appeals on March 1 directed the parties to file supplemental briefs addressing - among other things - whether the USPTO makes patent files available under the Freedom of Information Act (FOIA), 5 U.S.C. 552(a)(2)(A)-(E), through its Patent Application Information Retrieval (PAIR) System (Renewal Services Inc. v. U.S. Patent and Trademark Office, No. 16-56088, 9th Cir., 2018 U.S. App. LEXIS 5322).



Defendant In Fracking Patent Case Must Produce Documents, Federal Judge Says
HOUSTON - A federal judge in Texas on March 6 ruled that a company had to comply with discovery requests in a hydraulic fracturing patent infringement lawsuit because the company alleging the infringement had specifically named items in its amended complaint that constituted a violation of its patent (Baker Hughes Oilfield Operations LLC v. Packers Plus Energy Services Inc., No. 17-1422, S.D. Texas; 2018 U.S. Dist. LEXIS 36590).



Patent Infringement, Trade Secrets Suit Transferred To Delaware Federal Court
GREENWOOD, S.C. - In granting in part and denying in part the defendants' motion to dismiss and/or transfer venue, a federal judge in South Carolina on March 5 ruled that a company has failed to show that the defendants in a patent infringement and trade secret misappropriation resided in South Carolina or that a significant amount of the claims made occurred in the state (Flexible Technologies Inc. v. SharkNinja Operating LLC, et al., No. 17-0117, D.S.C., 2018 U.S. Dist. LEXIS 37122).



Judge Defines Terms In Patent Infringement Case Over Fracking Technology
HOUSTON - A federal judge in Texas on Feb. 16 identified several disputed terms in a patent infringement lawsuit between two hydraulic fracturing technology companies, ruling that the plaintiff's argument regarding the claim construction briefing was "more persuasive" than the defendants' position (Multilift Wellbore Technology Ltd. v. ESP Completion Technologies LLC, et al., No. 1702611, S.D. Texas; 2018 U.S. Dist. LEXIS 25630).



Panel: Lack Of Direct Contact In Trade Secret Suit Bars Misappropriation Claim
DENVER - Because a plaintiff failed to show that it directly provided confidential and trade secret information to another company that eventually filed a patent application using the plaintiff's trade secrets, a federal district court did not err in finding that the plaintiff failed to state a claim for trade secret misappropriation, a 10th Circuit U.S. Court of Appeals panel ruled March 2 in affirming the lower court's ruling (N8 Medical Inc., et al. v. Colgate-Palmolive Co., No. 17-4049, 10th Cir., 2018 U.S. App. LEXIS 5398).



BlackBerry Sues Facebook, Instagram, WhatsApp Over Mobile Messaging Patents
LOS ANGELES - Touting its status as an "innovator in the field of mobile communications," BlackBerry Ltd. filed a complaint in California federal court March 6 against Facebook Inc., WhatsApp Inc. and Instagram Inc., alleging infringement of seven of its patents by the firms' respective messaging apps (BlackBerry Ltd. v. Facebook Inc., et al., No. 2:18-cv-01844, C.D. Calif.).



Board Rejects Challenge By R.J. Reynolds Of Electronic Cigarette Patent
ALEXANDRIA, Va. - In a final written decision issued March 2, the Patent Trial and Appeal Board disagreed with R.J. Reynolds Vapor Co. that 14 claims of a patent titled "Electronic Cigarette" would have been obvious to a person of skill in the art (POSITA) (R.J. Reynolds Vapor Company v. Fontem Holdings 1 B.V., No. IPR2016-01692, PTAB).



Video Game Display Patent Targeted In New Post-Grant Review Petition
ALEXANDRIA, Va. - A patent covering a video game display based on a received selection of panel information should not have been issued, a petitioner asserts in a March 8 request for post-grant review by the Patent Trial and Appeal Board (Supercell Oy v. Gree Inc., No. PGR2018-00047, PTAB).



CPAP Humidifier Patent Is Obvious, Board Concludes
ALEXANDRIA, Va. - In a final written decision issued March 9, the Patent Trial and Appeal Board agreed with a petitioner that five claims relating to a humidifier chamber for a continuous positive airway pressure (CPAP) machine do not pass muster under Section 103 of the Patent Act, 35 U.S.C. 103 (Resmed Ltd. v. Fisher & Paykel Healthcare Ltd., No. IPR2016-01719, PTAB).



Patent Owner Requests, Receives Adverse Judgment In Post-Grant Review Case
ALEXANDRIA, Va. - Just over three months after the Patent Trial and Appeal Board granted a petition for post-grant review of an "omnidirectional" multicamera housing patent, the patent owner moved for entry of an adverse judgment, voluntarily canceling all claims (Axis Communications AB v. Arecont Vision LLC, No. PGR2017-00031, PTAB).



D.C. Circuit: Foreign Broadcasters Can Be Held Liable Under Copyright Act
WASHINGTON, D.C. - In a March 2 ruling, the District of Columbia U.S. Circuit Court of Appeals in what it deemed a question of first impression affirmed findings by a District of Columbia federal judge that the owner of a foreign website, acting abroad, commits an infringing "performance" under the Copyright Act when it uploads copyrighted video content for on-demand viewing in the United States (Spanski Enterprises Inc. v. Telewizja Polska S.A., No. 17-7051, D.C. Cir., 2018 U.S. App. LEXIS 5331).



Split Judgment Issued In Authors' Copyright, Online Defamation Suit
SALT LAKE CITY - An author whose novel was copied by another author was granted summary judgment on the matter of copyright infringement liability in a March 9 ruling; however, a Utah federal judge found that online postings and comments about the plaintiff constituted unactionable opinion, granting judgment to the defendant on defamation claims (Rachel Nunes v. Tiffanie Rushton, No. 2:14-cv-00627, D. Utah, 2018 U.S. Dist. LEXIS 39380).



Sony Prevails Before 9th Circuit In Copyright Dispute Over 'Elysium'
SAN FRANCISCO - Finding no error in a California federal judge's determination that a plaintiff failed to establish access by Sony Pictures Entertainment Inc. to an allegedly infringed screenplay, the Ninth Circuit U.S. Court of Appeals on March 1 affirmed summary judgment in favor of the film studio (Steve K. Wilson Briggs v. Sony Pictures Entertainment Inc., et al., No. 14-17175, 9th Cir., 2018 U.S. App. LEXIS 5243).



Rehearing Request In Oracle, Rimini Street Copyright Case Denied
SAN FRANCISCO - The Ninth Circuit U.S. Court of Appeals announced March 2 that it will not revisit a January 2018 ruling that a third-party software support company infringed Oracle USA Inc.'s copyrights when it relied on a single customer license to service other unlicensed customers, rejecting the software support company's assertion of a circuit split on the question of whether nontaxable costs are authorized by the Copyright Act, 17 U.S.C. 505 (Oracle USA Inc., et al. v. Rimini Street Inc., et al., Nos. 16-16832 & 16-16905, 9th Cir., 2018 U.S. App. LEXIS 5514).



9th Circuit Partly Reverses Dismissal In Dispute Over Copyrighted Software
SAN FRANCISCO - Allegations that a Dutch company committed copyright infringement when it continued to use a licensor's software after the parties' agreement expired were improperly dismissed on grounds of lacking personal jurisdiction, the Ninth Circuit U.S. Court of Appeals ruled March 13 (DEX Systems Inc. v. Deutsch Post AG, et al., No. 16-56044, 9th Cir., 2018 U.S. App. LEXIS 6231).



9th Circuit Upholds Judgment, Denial Of Fees In Copyright Dispute
SAN FRANCISCO - A California federal judge did not err in finding that the owner and operator of a website that posts pornographic pictures and video clips qualified for the safe harbor defense set forth in the Digital Millennium Copyright Act (DMCA), 17 U.S.C. 512(c), because the infringing material was posted online at the direction of users and the copyright holder failed to establish a genuine issue of fact as to actual knowledge, a divided Ninth Circuit U.S. Court of Appeals ruled March 14 (Ventura Content Ltd. v. Motherless Inc., et al., Nos. 13-56332, -56970, 9th Cir., 2018 U.S. App. LEXIS 6307).



In Issue Of First Impression, 11th Circuit Applies Octane In Lanham Act Case
ATLANTA - A Florida federal judge did not err in awarding attorney fees to a defendant accused of false advertising, because the case qualifies as "exceptional" under the U.S. Supreme Court's holding in Octane Fitness, LLC v. ICON Health & Fitness, Inc., the 11th Circuit U.S. Court of Appeals ruled March 8 in what it deemed an issue of first impression (Edward Tobinick MD v. Dr. Steven Novella, No. 16-16210, 11th Cir., 2018 U.S. App. LEXIS 5845).



New York Federal Judge Won't Reconsider Jurisdiction Ruling In Counterfeiting Case
NEW YORK - A Texas-based website accused of infringing the copyrights and trademarks of textbook maker McGraw-Hill Global Education Holdings LLC and others was denied reconsideration on March 5 of an earlier ruling that rejected the website's assertion of lacking personal jurisdiction (McGraw-Hill Global Education Holdings LLC, et al., v. Mehul Mathrani, et al., No. 16-8530, S.D. N.Y., 2018 U.S. Dist. LEXIS 35541).



California Federal Judge Sides With Ratt Founder In Trademark Dispute
LOS ANGELES - A purported assignment of the "Ratt" trademarks in 1997 was declared invalid March 6 by a California federal judge, in what marks a win for the original founding member of the famed 1980s heavy metal band (WBS Inc. v. Stephen Pearcy, No. 16-3495, C.D. Calif., 2018 U.S. Dist. LEXIS 36640).



Trade Secret, Trademark And Copyright Claims Survive Dismissal Motions
DETROIT - Ford Motor Co. has shown that its competitor and its U.S. distributor in the automobile diagnostics industry stole certain of its trade secret and copyrighted source code and used the information to reverse-engineer its competing diagnostic tools in violation of state and federal law and illegally used Ford's trademarked logos in the process, a federal judge in Michigan ruled Feb. 26 in denying the defendants' motions to dismiss (Ford Motor Co. v. Launch Tech Co. Ltd., No. 17-12906, E.D. Mich., 2018 U.S. Dist. LEXIS 29923).



Illinois Federal Judge Denies Summary Judgment In Mark Cancellation Dispute
CHICAGO - A plaintiff seeking review of a cancellation by the Trademark Trial and Appeal Board (TTAB) of three trademarks relating to cigarette rolling papers was denied summary judgment by an Illinois federal judge on March 12 (DRL Enterprises Inc. v. North Atlantic Operating Company Inc., et al., No. 16-8384, N.D. Ill., 2018 U.S. Dist. LEXIS 40191).



Hacky Sack Champ's Lanham Act Claim Properly Dismissed, 7th Circuit Says
CHICAGO - In a March 9 summary order, the Seventh Circuit U.S. Court of Appeals turned away a challenge of an Illinois federal judge's rejection of Lanham Act, 15 U.S.C. 1125(a)(1)(A), false endorsement claims stemming from the use by Wendy's International Inc. of his identity in a 2013 promotion (Johannes Martin v. Wendy's International Inc., et al., No. 17-2043, 7th Cir., 2018 U.S. App. LEXIS 5988).



Formalwear Association Granted Default Judgment Over Counterfeiting Websites
TRENTON, N.J. - A New Jersey federal judge on March 9 deemed 15 websites that were selling counterfeit bridal and prom apparel to be in default for failing to respond to trademark infringement claims against them, leading her to grant default judgment, injunctive relief and damages to a plaintiff formalwear association (American Bridal & Prom Industry Association Inc., et al. v. Jollyprom.com, et al., No. 3:17-cv-02454, D. N.J., 2018 U.S. Dist. LEXIS 38898).



Jewelry Brand Asserts Infringement, UCL Claims In California Federal Court
LOS ANGELES - A California jewelry brand on March 9 sued numerous companies, asserting claims for trademark infringement and violation of California's unfair competition law (UCL), alleging that they are making and selling imitations of its jewelry pieces (Zenga Inc. v. K3 Jewelry, et al., No. 2:18cv1983, C.D. Calif.).



Government Seeks To Argue In High Court Foreign Patent Infringement Profits Suit
WASHINGTON, D.C. - One week after filing an amicus curiae brief, the U.S. government on March 9 filed a motion in the U.S. Supreme Court, seeking leave to participate in April 18 oral arguments in a case focusing on whether a patent holder can be awarded profits for a party's acts of infringement outside the United States (WesternGeco LLC v. ION Geophysical Corp., No. 16-1011, U.S. Sup.).



Oracle Opposes Certiorari In Challenge To Inter Partes Review's Constitutionality
WASHINGTON, D.C. - Oracle Corp. and NetApp Inc. filed a brief March 5 urging the U.S. Supreme Court to deny certiorari to a firm whose patent was declared invalid after inter partes review (IPR), arguing that that no deference to the pending decision on the constitutionality of IPR in Oil States Energy Services, LLC v. Greene's Energy Group, LLC is needed because the petitioner forfeited any constitutional argument (KIP CR P1 LP v. Oracle Corp., et al., No. 17-707, U.S. Sup.).



Patent Owner Again Appeals Adverse Inter Partes Review Findings To Federal Circuit
WASHINGTON, D.C. - Briefing was recently completed in a dispute pending before the Federal Circuit U.S. Court of Appeals, in which a patent owner asserts that the Patent Trial and Appeal Board erred on remand from a December 2016 ruling by the Federal Circuit when it again deemed various claims of a credit card transaction security patent anticipated and obvious (John D'Agostino v. Mastercard International Inc., Nos. 18-1000, -1001, Fed. Cir.).



Fraud, Patent Dispute Over Infringed Toothbrush Argued Before Federal Circuit
WASHINGTON, D.C. - A patent owner told the Federal Circuit U.S. Court of Appeals at oral arguments on March 9 that an infringer requested samples of a flexible toothbrush - then marked "patent pending" - with the intent to copy the technology for resale under a competing brand, and then concealed evidence of infringing shipments from a Washington federal judge (Loops LLC, et al., v. Phoenix Trading Inc., et al., No. 17-1316, Fed. Cir.).



Oral Arguments Held In Dispute Over Denied Fee Award In Patent Case
WASHINGTON, D.C. - At oral arguments on March 5 counsel for three prevailing patent infringement defendants told the Federal Circuit U.S. Court of Appeals that a Delaware federal judge erred in deeming the underlying case unexceptional under Section 285 of the Patent Act (Sarif Biomedical LLC v. Brainlab Inc., et al., No. 17-1103, Fed. Cir.).



Parties Brief Federal Circuit In Dispute Over Turbofan Engine Patent
WASHINGTON, D.C. - The Patent Trial and Appeal Board erred in deeming four claims of a patent covering geared turbofan engine technology unpatentable under Sections 102 and 103 of the Patent Act, 35 U.S.C. 102, 103, the patent owner maintains in an appeal to the Federal Circuit U.S. Court of Appeals (United Technologies Corp. v. General Electric Company, No. 17-2537, Fed. Cir.).