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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 Sides With Nintendo, Upholds Patent Ineligibility Ruling
WASHINGTON, D.C. - A Washington federal judge did not err in deeming an encoding and decoding patent ineligible for patentability under the Patent Act, 35 U.S.C. 101, the Federal Circuit U.S. Court of Appeals ruled April 28 in a win for Nintendo Co. Ltd. and Nintendo of America Inc. (Nintendo, collectively) (RecogniCorp LLC v. Nintendo Co. Ltd., et al., No. 16-1499, Fed. Cir., 2017 U.S. App. LEXIS 7528).



Federal Circuit Reverses Judgment In Colon Purging Patent Case
WASHINGTON, D.C. - A New York federal judge erred in granting a defendant summary judgment that it did not directly infringe or induce others to infringe various claims of a patent directed to methods and compositions for purging a colon, the Federal Circuit U.S. Court of Appeals ruled May 5 (Braintree Laboratories Inc. v. Breckenridge Pharmaceutical Inc., No. 16-1731, Fed. Cir.).



Fracking Company's Breach Of Contract Claim Valid, Judge Rules
HOUSTON - A federal judge in Texas on April 27 ruled that a manufacturer of equipment used in hydraulic fracturing has a valid case for breach of fiduciary duty as well as other claims against a former employee who shared proprietary technology with other companies and then formed a rival company that sold the same equipment as his original employer (Downhole Technology LLC v. Silver Creek Services Inc., et al., No. 17-0020, S.D. Texas; 2017 U.S. Dist. LEXIS 64189).



Denial Of Injunction In Patent Case Upheld By Federal Circuit
WASHINGTON, D.C. - A Texas federal judge did not err in refusing to enter a permanent injunction despite finding, at a bench trial, that three patents were both valid and infringed, the Federal Circuit U.S. Court of Appeals held April 28 (Nichia Corporation v. Everlight Electronics Co. Ltd., et al., No. 16-1585, Fed. Cir., 2017 U.S. App. LEXIS 7527).



Federal Circuit: AIA Did Not Change Meaning Of On-Sale Bar
WASHINGTON, D.C. - A New Jersey federal judge's conclusion that a patent was not invalid because a 2011 statute changed the relevant standard for a commercial offer for sale was reversed May 1 by the Federal Circuit U.S. Court of Appeals (Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., et al., Nos. 16-1284, -1787, Fed. Cir., 2017 U.S. App. LEXIS 7650).



Federal Circuit Agrees With Examiner, Board: Patent Is Obvious
WASHINGTON, D.C. - A patent application covering an apparatus for engaging in wireless commercial transactions was properly rejected by the Patent Trial and Appeal Board, the Federal Circuit U.S. Court of Appeals ruled May 9 (In re: Paul Poniatowski, No. 17-1346, Fed. Cir., 2017 U.S. App. LEXIS 8185).



In Partial Reversal, Federal Circuit Says Claims Lack Descriptive Support
WASHINGTON, D.C. - A holding by the Patent Trial and Appeal Board that confirmed the patentability of five claims of a fiber optic patent was reversed May 10 by the Federal Circuit U.S. Court of Appeals (Cisco Systems Inc. v. Cirrex Systems LLC, Nos. 16-1143, -1144, Fed. Cir.).



Federal Circuit: Board Within Its Authority In Granting Patent Review
WASHINGTON, D.C. - A decision by the Patent Trial and Appeal Board to proceed with an inter partes review (IPR) after the petitioner requested that the petition be denied was not outside the board's statutory authority, the Federal Circuit U.S. Court of Appeals ruled May 10 (In re: AT&T Intellectual Property II L.P., No. 16-1830, Fed. Cir., 2017 U.S. App. LEXIS 8263).



Court Lacks Jurisdiction Over Defendant In Trade Secrets Suit, Judge Rules
HOUSTON - A federal district court lacks personal jurisdiction over a defendant in a patent infringement and misappropriation of trade secrets lawsuit because the plaintiff failed to show that the defendant had any contacts with the forum state, a federal judge in Texas ruled May 8 in granting the defendant's motion to dismiss (Downhole Technology LLC v. Silver Creek Services Inc., et al., No. 17-0020, S.D. Texas, 2017 U.S. Dist. LEXIS 70056).



Federal Circuit: No Due Process Violation In Bandwidth Patents Case
WASHINGTON, D.C. - A decision, upon inter partes review (IPR), that deemed various claims of two bandwidth selection patents anticipated or obvious over prior art was not a violation of the patent owner's due process rights, the Federal Circuit U.S. Court of Appeals ruled May 8 (Intellectual Ventures II LLC v. Ericsson Inc., et al., Nos. 2016-1739, -1740, -1741, Fed. Cir., 2017 U.S. App. LEXIS 8106).



Intellectual Property Owners Propose Changes To Section 101
WASHINGTON, D.C. - The legislative arm of the Intellectual Property Owners Association (IPO) on Feb. 7 issued a memorandum that proposed changes to the Patent Act, 35 U.S.C. 101, "to restore the scope of patent eligible subject matter that has been restricted" by the U.S. Supreme Court in several recent decisions the IPO deemed "bad law."



New Petition For Post- Grant Review Filed With Patent Board
ALEXANDRIA, Va. - Relying on the declaration of a "renowned physician-scientist" who has "focused for over three decades" on the development of inhaled treatments for pulmonary infections, Aaradigm Corp. on May 1 filed a petition for post-grant review (PGR) of a nebulizer device patent with the Patent Trial and Appeal Board (Aradigm Corp. v. Insmed Inc., No. PGR2017-00021, PTAB).



IBM Patent Application Rejected By Board Pursuant To Section 101
ALEXANDRIA, Va. - An application for a method and system for user automation out of a process flow claims ineligible subject matter pursuant to the Patent Act, 35 U.S.C. 101, the Patent Trial and Appeal Board ruled May 3 (Ex parte Uthe, No. 2015-001676, PTAB).



NVIDIA Petitions Board, Claims Polaris Patent Is Obvious, Anticipated
ALEXANDRIA, Va. - In a May 4 petition for inter partes review NVIDIA Corp. asserts unpatentability of myriad claims relating to a patented process for improved error coding through the use of data arrangement alteration (NVIDIA Corp. v. Polaris Innovations Ltd., No. IPR2017-01346, PTAB).



Board Sides With Examiner In Rejecting Microsoft Patent Claims
ALEXANDRIA, Va. - The Patent Trial and Appeal Board on May 9 upheld findings by an examiner that 20 claims of a patent application directed to inserting domain switch points in an instruction set would have been obvious to a person of ordinary skill in the art (Ex parte Stall, et al., No. 2015-005253, PTAB).



Microsoft Petitions Board For Inter Partes Review Of Memo Patent
ALEXANDRIA, Va. - A patent that claims a method for displaying a reminder to users of a communication device for future communication with members of their contact list does not pass muster under the Patent Act, 35 U.S.C. 103, Microsoft Corp. argues in a May 10 petition for inter partes review with the Patent Trial and Appeal Board (Microsoft Corp. v. Mira Advanced Technology Systems Inc., No. IPR2017-01411, PTAB).



Illinois Federal Judge Dismisses Lanham Act Dispute Over Promotion
CHICAGO - Allegations by the world record holder for consecutive kicks of a footbag - commonly known as a "hacky sack" - that Wendy's International Inc. violated the Lanham Act by using his identity in a 2013 promotion were rejected April 28 by an Illinois federal judge pursuant to Federal Rule of Civil Procedure 12(b)(6), Fed. R. Civ. P. 12(b)(6) (Johannes Martin v. Wendy's International Inc., No. 15-6998, N.D. Ill., 2017 U.S. Dist. LEXIS 64435).



6th Circuit Upholds Rejection Of Lanham Act Claims Against UPS
CINCINNATI - Allegations that United Parcel Service Inc. (UPS) committed infringement when it used the "UPS OrderLink" trademark in connection with a free software program despite rejection of the same by the U.S. Patent and Trademark Office were properly rejected by a Michigan federal judge, the Sixth Circuit U.S. Court of Appeals ruled May 3 (Progressive Distribution Services Inc. v. United Parcel Service Inc., No. 16-1830, 6th Cir., 2017 U.S. App. LEXIS 7841).



4th Circuit Affirms: Confusion Unlikely In '450' Trademark Case
RICHMOND, Va. - A North Carolina federal judge did not err in concluding that consumers were unlikely to be confused between the use of "450" in connection with competing hair care products, the Fourth Circuit U.S. Court of Appeals affirmed May 5 (Grayson O Company v. Agadir International LLC, No. 15-2552, 4th Cir., 2017 U.S. App. LEXIS 8010).



8th Circuit Panel Affirms Grant Of Injunction Against Dry Cleaner Franchisee
ST. LOUIS - An Eighth Circuit U.S. Court of Appeals panel on April 28 affirmed a Minnesota federal judge's grant of a permanent injunction enjoining a dry cleaner franchisee from using Martinizing International LLC's trademarks but said Martinizing was not entitled to punitive damages, costs or attorney fees in its action against the franchisee and two of its employees because they agreed to cease using the marks (Martinizing International LLC v. BC Cleaners LLC, et al., No. 16-1069, 8th Cir., 2017 U.S. App. LEXIS 7531).



New York Federal Judge Retains Jurisdiction Over Copyright, Trademark Case
NEW YORK - Efforts by a defendant to obtain dismissal for lack of jurisdiction and improper venue of allegations that it infringed copyrighted and trademarked fine jewelry designs were rejected May 4 by a New York federal judge, who found that personal jurisdiction exists in the case (Verragio Inc. v. SK Diamonds, No. 16-6931, S.D. N.Y., 2017 U.S. Dist. LEXIS 68422).



Copyright, Lanham Act Claims Partly Dismissed In Dispute Over Bobblehead
SAN DIEGO - Allegations that the sellers of a Hillary Clinton bobblehead doll committed false advertising by falsely claiming an association with the Trump organization fail to plead proximate causation because the claims lack evidence of lost sales or reputational damage, a California federal judge ruled May 8 (Bobbleheads.com LLC v. Wright Brothers Inc., et al., No. 16-2790, S.D. Calif., 2017 U.S. Dist. LEXIS 70050).



Company's Trade Secrets Misappropriation Claims Survive Dismissal Motion
DALLAS - Defendants in a misappropriation of trade secrets and intellectual property lawsuit have failed to show that a plaintiff failed to state its claims for violation of the Texas Uniform Trade Secrets Act (TUTSA), as well as several common-law claims, a federal magistrate judge in Texas ruled May 8 in denying the defendants' motion to dismiss (TeamLogic Inc. v. Meredith Group IT LLC, et al., No. 16-2542, N.D. Texas, 2017 U.S. Dist. LEXIS 69580).



Indiana Magistrate Judge Orders Discovery Of Franchise Pacts In Restaurant Row
HAMMOND, Ind. - An Indiana magistrate judge on May 10 granted a Texas grill and saloon franchisor's motion to compel discovery of franchise agreements of a western-style restaurant franchisor that is accusing it of trademark and trade dress infringement, but limited it to production of U.S. franchise agreements because requiring production of foreign franchise agreements, if any, would be "disproportional to the needs of the case" (Texas Roadhouse Inc., et al. v. Texas Corral Restaurants Inc., et al., No. 2:16-cv-28, N.D. Ind., 2017 U.S. Dist. LEXIS 71182).



Pennsylvania Federal Judge Won't Reconsider Copyright Ruling
HARRISBURG, Pa. - Efforts by a defendant to secure reconsideration of a March order that adopted a Pennsylvania federal magistrate judge's recommendation to deny summary judgment on a copyright infringement claim were unsuccessful on May 1 (Crestwood Membranes Inc. d/b/a i2M v. Constant Services Inc., No. 15-537, M.D. Pa., 2017 U.S. Dist. LEXIS 66105).



Defendants Win Summary Judgment In Copyright Dispute Over Photographs
NASHVILLE, Tenn. - A student and his college accused of copyright infringement in connection with an assignment that made use of stock photography are entitled to summary judgment, a Tennessee federal judge ruled April 28 (TC Reiner v. Ryon Nishimori, et al., No. 15-241, M.D. Tenn., 2017 U.S. Dist. LEXIS 65070).



Warner Bros. Wins Dismissal Of Copyright Claims Over Show Song
LOS ANGELES - A California federal judge on May 1 agreed with Warner Bros. Entertainment and a co-defendant that a request for statutory damages and attorney fees stemming from the excerpted use of a copyrighted song in the intro to the show "Lucifer" fails as a matter of law because the work in question was unpublished at the time it was first used (Robert J. Marderosian, et al. v. Warner Bros. Entertainment, et al., No. 17-1062, C.D. Calif., 2017 U.S. Dist. LEXIS 66173).



Judge Overrules Plaintiff's Objections To Order In Trade Secrets Suit
HOUSTON - A federal judge in Texas on May 2 overruled objections filed by a plaintiff in a misappropriation of trade secrets lawsuit in response to a federal magistrate judge's order allowing defendants to view certain confidential expert reports, finding that the plaintiff failed to show that the order was "clearly erroneous or is contrary to law" (Dresser-Rand Co. v. Schutte & Koerting Acquisition Co., et al., No. 12-184, S.D. Texas, 2017 U.S. Dist. LEXIS 66424).



Complaint Fails To Allege Disparagement Claim; No Coverage, Illinois Panel Affirms
CHICAGO - An Illinois appeals panel on May 1 held that an underlying complaint did not contain allegations sufficient to constitute a claim of disparagement against an insured, affirming a lower court's ruling that the insurer has no duty to defend because coverage was not triggered (Green4all Energy Solutions, Inc. v. State Farm Insurance Co., No. 1-16-2499, Ill. App., 1st Dist., 1st Div., 2017 Ill. App. Unpub. LEXIS 874).



Panel Affirms Ruling In Insurer's Favor In Copyright Infringement Coverage Suit
ATLANTA - The 11th Circuit U.S. Court of Appeals on May 2 affirmed a lower federal court's ruling in favor of an insurer in coverage dispute arising from underlying copyright infringement claims, finding that the insured failed to connect its construction of copyright-infringing homes to its advertising (Highlands Holdings Inc. v. Mid-Continent Casualty Co., No. 16-14981, 11th Cir., 2017 U.S. App. LEXIS 7724).



Federal Circuit Hears Oral Arguments In Dispute Over E-Commerce Patent
WASHINGTON, D.C. - In oral arguments on May 8, a patent owner took aim at a covered business method (CBM) review decision by the Patent Trial and Appeal Board that rendered unpatentable all claims of two patents covering e-commerce transactions (Linkgine Inc. v. VigLink Inc., et al., Nos. 16-2087, -2088, Fed. Cir.).



On Remand, Samsung Seeks Vacated Award, New Trial In Apple Design Patent Suit
SAN JOSE, Calif. - Samsung Electronics Co. Ltd. on April 21 filed a remand brief in California federal court, contending that, in the wake of a U.S. Supreme Court ruling that invalidated the basis for a $399 million infringement damages award against it, a new damages trial is merited in the long-running smartphone design patent dispute with Apple Inc. (Apple Inc. v, Samsung Electronics Co. Ltd., et al., No. 5:11-cv-01846, N.D. Calif.).



Tech Firm Seeks High Court Review Of Abstract Patentability Standard
WASHINGTON, D.C. - A company that received a trial court judgment declaring its signal analyzing patents invalid as abstract, which was upheld by the Federal Circuit U.S. Court of Appeals, filed a petition for certiorari April 6, asking the U.S. Supreme Court to correct what it calls a widespread practice of courts to incorrectly apply and improperly conflate patentability standards (Blue Spike LLC v. Google Inc., No. 16-1223, U.S. Sup.).



Means-Plus-Function Limitations Debated Before Federal Circuit
WASHINGTON, D.C. - A finding by a California federal judge that the means-plus-function limitation "means for mounting" in a patented method and system for real-time replication of file systems components was invalid for insufficient structure is under review by the Federal Circuit U.S. Court of Appeals, which heard oral arguments on May 8 (Twin Peaks Software Inc. v. IBM Corporation, No. 16-2177, Fed. Cir.).



PTO Director Says Patent Claims Are Invalid, Ineligible for Protection
WASHINGTON, D.C. - In a May 4 appellee brief, Michelle K. Lee, acting director of the U.S. Patent and Trademark Office (PTO), told the Federal Circuit U.S. Court of Appeals that the Patent Trial and Appeal Board properly rejected various claims of a patent application as anticipated (In re: C. Douglass Thomas, No. 17-1100, Fed. Cir.).



Patent Owner: Board Improperly Reallocated Burden In Review
WASHINGTON, D.C. - A decision by the Patent Trial and Appeal Board that a patented computer-assisted surgery planner for joint placement procedures is unpatentable was proper, an appellee told the Federal Circuit U.S. Court of Appeals in a May 3 brief (Blue Belt Technologies, et al. v. Mako Surgical Corp., No. 16-2740, Fed. Cir.).



Machine Company Tells 7th Circuit Defamation Pact Did Not Include Trademark Suit
CHICAGO - In a May 8 brief to the Seventh Circuit U.S. Court of Appeals, a machine company appeals a trial court's finding that the settlement of a defamation suit with a competitor also applied to a previously issued trademark judgment between the two firms and released a judgment in the plaintiff's favor (Engineered Abrasives Inc. v. American Machine Products & Services Inc., et al., No. 17-1429, 7th Cir.).



Government Opposes Certiorari In Dispute Over YouTube Video Takedown
WASHINGTON, D.C. - In a May 4 amicus curiae brief in the U.S. Supreme Court, the U.S. government voiced its opposition to a YouTube user's petition for certiorari, opining that a Ninth Circuit U.S. Court of Appeals ruling on good faith related to a copyright holder's Digital Millennium Copyright Act (DMCA) takedown notice does not conflict with existing case law, also stating that key issues regarding the copyright owner's "mental state" were not properly before the lower courts (Stephanie Lenz v. Universal Music Corp., et al., No. 16-217, U.S. Sup.).



Pharrell Williams, Robin Thicke Argue 'Blurred Lines' Does Not Infringe Gaye Song
SAN FRANCISCO - Even though musicians Pharrell Williams and Robin Thicke admit to being inspired by the "groove" and "feel" of a 1977 Marvin Gaye song when writing their 2013 hit song "Blurred Lines," in an April 24 brief to the Ninth Circuit U.S. Court of Appeals, they argue that a jury's finding of copyright infringement was improperly based on noncopyrightable musical elements and not on the song's lead sheet (Pharrell Williams, et al. v. Frankie Christian Gaye, et al., No. 15-56880, 16-55089 and 16-55626, 9th Cir.).



Abbott, Costello Heirs Assert 'Who's On First?' Copyright Interest To High Court
WASHINGTON, D.C. - In an April 18 petition for certiorari in the U.S. Supreme Court, heirs of Abbott and Costello assert their copyright interests in the legendary comedy duo's iconic "Who's on First?" routine, arguing that renewal of unitary copyrights in two films containing the routine preserved its copyright, which was ultimately transferred to them (TCA Television Corp., et al. v. Kevin McCollum, et al., No. 16-1258, U.S. Sup.).



Supreme Court Holds Oral Arguments In Biologics Act Dispute
WASHINGTON, D.C. - The merits of a July 2015 ruling by the Federal Circuit U.S. Court of Appeals that barred an abbreviated biologic license applicant from marketing Zarxio - biosimilar to the bone marrow stimulant Neupogen - for 180 days in light of the applicant's premature notice of commercial marketing was debated April 26 by the U.S. Supreme Court (Sandoz Inc. v. Amgen Inc., et al., No. 15-1039 and 15-1195, U.S. Sup.).



3rd Circuit Keeps Jurisdiction Over Walker Process Claim In Antitrust Action
PHILADELPHIA - Allegations by myriad plaintiffs that the companies that hold patents for the brand name drugs Lipitor and Effexor XR engaged in fraudulent patent procurement - known as Walker Process fraud pursuant to Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172 (1965) - do not arise under federal patent law, such that an appeal in the case must necessarily proceed in the Federal Circuit U.S. Court of Appeals, the Third Circuit U.S. Court of Appeals ruled April 13 (In re: Lipitor Antitrust Litigation, Nos. 14-4202, -4203, -4204, -4205, -4206, -4602, -4632, 15-1184, -1185, -1186, -1187, -1274, -1323 and 15-134, 3rd Cir., 2017 U.S. App. LEXIS 6346).



Federal Circuit Affirms Patent Verdict, Judgment In Favor Of Apple
WASHINGTON, D.C. - Allegations that Apple Inc. infringed a patent claim directed to a means of sending packet data from a cellular telephone to a network through the use of a selected channel were properly rejected by a Texas federal judge and jury, the Federal Circuit U.S. Court of Appeals ruled April 14 (Core Wireless Licensing S.a.r.l. v. Apple Inc., No. 15-2037, Fed. Cir., 2017 U.S. App. LEXIS 6410).



Damages Testimony Is Barred In Patent Infringement Suit Against IBM, Judge Says
WILMINGTON, Del. - An expert did not offer any developed damages theory relating to International Business Machines Corp.'s (IBM) use of its website, and there were "serious methodological and reliability problems" in his assumptions, a Delaware federal judge held April 17, excluding testimony in a patent infringement lawsuit (Parallel Networks Licensing LLC v. International Business Machines Corp., No. 13-2072, D. Del., 2017 U.S. Dist. LEXIS 58394).



Nonobviousiness Testimony Is Allowed; Judgment Granted On Invalidity In Patent Suit
PORTLAND, Ore. - While allowing expert testimony on objective considerations of nonobviousness, an Oregon federal judge also granted in part summary judgment on April 12 to a sportswear company that certain prior art references do not anticipate utility patents relating to heat-directing elements to a garment's innermost surface (Columbia Sportswear North America Inc. v. Seirus Innovative Accessories Inc., No. 15-00064, D. Ore., 2017 U.S. Dist. LEXIS 55714).



Federal Circuit Sides With False Marking, False Advertising Defendant
WASHINGTON, D.C. - A North Carolina federal judge did not err in granting summary judgment to a Lanham Act and Patent Act defendant accused of marking its key-cutting machines as "patent pending," the Federal Circuit U.S. Court of Appeals ruled April 13 (Gordon Gravelle v. Kaba Ibco Corp., No. 16-2318, Fed. Cir., 2017 U.S. App. LEXIS 6246).



Federal Circuit: Damages Should Be Limited For Failure To Mark
WASHINGTON, D.C. - Although largely affirming a Texas federal judge's claim construction and denial of a Samsung Electronics Co. Ltd. request for judgment as a matter of law (JMOL) that two patents are invalid as obvious, the Federal Circuit U.S. Court of Appeals on April 17 nonetheless vacated a ruling that a patent owner's damages should not be limited on the basis of its failure to mark products as patented (Rembrandt Wireless Technologies L.P. v. Samsung Electronics Co. Ltd., et al., No. 16-1729, Fed. Cir.; 2017 U.S. App. LEXIS 6502).



Federal Circuit Orders Patent Board To Dismiss Re-Examination Of Claims
WASHINGTON, D.C. - The Federal Circuit U.S. Court of Appeals on April 21 vacated certain aspects of a final decision by the Patent Trial and Appeal Board, agreeing that the underlying request for inter partes re-examination should not have been granted pursuant to Section 317(b) of the Patent Act, 35 U.S.C. § 317(b) (Fairchild [Taiwan] Corporation v. Power Integrations Inc., No. 17-1002, Fed. Cir., 2017 U.S. App. LEXIS 6998).



Federal Circuit: Board Obviousness, Anticipation Findings Unsupported
WASHINGTON, D.C. - A final ruling by the Patent Trial and Appeal Board that deemed various claims of an integrated circuit design patent obvious and anticipated was reversed April 24 by the Federal Circuit U.S. Court of Appeals on grounds that the board's findings were not supported by substantial evidence (Synopsys Inc. v. ATopTech Inc., Nos. 16- 1956, -1957, Fed. Cir., 2017 U.S. App. LEXIS 7095).



Judge Dismisses Infringement Claim Against Party City Over Drink Vessel Patent
SAN DIEGO - A California federal judge on April 25 dismissed claims asserted by a drink vessel maker for patent infringement and unjust enrichment in relation to a party supply retailer's alleged infringement on its utility patent but found that part of its claim for violation of California's unfair competition law (UCL) can proceed (Small Axe Enterprises Inc. v. Amscan Inc., et al., No. 3:16-cv-00981, S.D. Calif., 2017 U.S. Dist. LEXIS 62900).



Judge: Plaintiff Failed To Show Any DTSA Violation After Statute's Enactment
SAN FRANCISCO - Dismissal of nonpatent claims in a patent infringement and misappropriation of trade secrets lawsuit is proper because a company has failed to show that the alleged misappropriation of its trade secrets occurred after the enactment of the Defend Trade Secrets Act (DTSA), a federal judge in California ruled April 24 in granting in part and denying in part a defendant's motion to dismiss (Cave Consulting Group Inc. v. Truven Health Analytics Inc., No. 15-2177, N.D. Calif., 2017 U.S. Dist. LEXIS 62109).



Web Ad Patent Fails Section 101 Analysis, Patent Board Rules
ALEXANDRIA, Va. - Google Inc. prevailed April 24 when the Patent Trial and Appeal Board agreed with the software giant that various claims of a patented method for detecting fraudulent clicks on web advertisements are obvious or claim patent-ineligible subject matter (Google Inc. v. Patrick Zuili, No. CBM2016-00008, PTAB).



Facebook Challenges Info Sharing Patent, Seeks Inter Partes Review
ALEXANDRIA, Va. - A patented network-computer-based personal contact manager system renders a claimed system for sharing information over the internet unpatentable, Facebook Inc. alleges in an April 14 petition for inter partes review filed with the Patent Trial and Appeal Board (Facebook Inc. v. ZKey Investments LLC, No. IPR2017-01278, PTAB).



Patent Board Affirms Final Rejection Of Anti-Virus Patent
ALEXANDRIA, Va. - In an April 17 final written decision, the Patent Trial and Appeal Board agreed with a patent examiner that 20 claims of a patented system and method for detecting and nullifying the effects of computer viruses do not pass muster under Section 103(a) of the Patent Act, 35 U.S.C. 1 et seq. (Ex parte Intellectual Ventures I LLC, No. 2017-000054, PTAB).



In Final Decision, Patent Board Rejects Google Claims Of Invalidity
ALEXANDRIA, Va. - Although it found in April 2016 that Google Inc. demonstrated that it would likely prevail on allegations that two claims of a vector-based traffic information patent would have been obvious to a person of skill in the art, the Patent Trial and Appeal Board on April 21 confirmed the patentability of both claims (Google Inc. v. Ji-Soo Lee, No. IPR2016-00045, PTAB).



Yahoo In New Petition For Inter Partes Review Says Patent Is Obvious
ALEXANDRIA, Va. - A patented system and method relating to a method of prompting action between interconnected devices on April 24 was targeted for inter partes review (IPR) by Yahoo Inc. in a new filing before the Patent Trial and Appeal Board (Yahoo Inc. v. Intent IQ Inc., No. IPR2017-01299, PTAB).



New York Federal Judge Dismisses Declaratory Judgment Copyright Case
NEW YORK - In an April 17 ruling, a New York federal judge rejected a request by a plaintiff for intentional interference with contractual relations damages in connection with enforcement efforts by the agent for BMG Rights Management US LLC (Windstream Services LLC v. BMG Rights Management US LLC and Rightscorp Inc., No. 16-5015, S.D. N.Y., 2017 U.S. Dist. LEXIS 58204).



Wisconsin Federal Judge Denies Motion Mid-Trial In Copyright Case
MADISON, Wis. - An infringement plaintiff's motion for judgment as a matter of law (JMOL) on a defendant's assertion that two sets of copyrighted illustrations constitute a joint work was denied April 18 by a Wisconsin federal judge (Amy Lee Sullivan v. Flora Inc., No. 15-298, W.D. Wis., 2017 U.S. Dist. LEXIS 58774).



Claims In Trade Secrets Suit Substantially Survive Dismissal Motion
NEWARK, N.J. - A federal judge in New Jersey on April 17 substantially denied a motion to dismiss filed by defendants in a copyright infringement and misappropriation of trade secrets lawsuit, ruling that a company has properly pleaded its claims against a majority of the defendants in the action (Jorgensen & Co. v. Gary Sutherland, et al., No. 15-7373, D. N.J., 2017 U.S. Dist. LEXIS 59108).



Defaulting Web Host To Pay $62,624 In Damages, Fees On Copyright Claims
NEW YORK - A New York federal magistrate judge on April 21 recommended that a photographer be awarded $10,000 for each of five images infringed by web host Lycos Inc. - far less than the statutory maximum of $150,000 per infringed work originally sought in the case (Leif Skoogfors v. Lycos Inc., No. 16-2742, S.D. N.Y., 2017 U.S. Dist. LEXIS 61926).



New Legislation Proposes Changes To Register Of Copyrights Position
WASHINGTON, D.C. - A bill that would render the Register of Copyrights a presidential appointment subject to confirmation by the U.S. Senate was passed by a bipartisan U.S. House of Representatives on April 26 in a 378 to 48 vote.



Judge Finds Hoverboard Seller Infringed On Trademarks, Awards $1M
LOS ANGELES - A California federal judge on April 20 granted a motion filed by the owner of certain trademarks for summary judgment on its other claims for infringement and counterfeiting of a registered mark, awarding it $1 million in damages (UL LLC v. The Space Chariot Inc., et al., No. 2:16-cv-08172, C.D. Calif., 2017 U.S. Dist. LEXIS 56147).



4th Circuit Affirms Dismissal Of False Advertising Claims
RICHMOND, Va. - A Virginia federal judge's decision to dismiss allegations of false advertising levied in connection with Better Business Bureau ratings was not erroneous, the Fourth Circuit U.S. Court of Appeals ruled April 24 (Wall & Associates Inc. v. Better Business Bureau of Central Virginia, Inc., et al., No. 16-1819, 4th Cir., 2017 U.S. App. LEXIS 7118).



3rd Circuit Vacates, Remands Damage Award In Trademark Dispute
PHILADELPHIA - A decision by a Pennsylvania federal judge to "eschew" statutory damages and award more than $4 million to a trademark plaintiff was an abuse of discretion because "the record was insufficient to approximate actual damages," the Third Circuit U.S. Court of Appeals ruled April 18 (Covertech Fabricating Inc. v. TVM Building Products Inc., No. 15-3893, 3rd Cir., 2017 U.S. App. LEXIS 6588).



Trademark Plaintiff Largely Prevails In Nebraska Federal Case
OMAHA, Neb. - A request by a plaintiff for summary judgment on its allegations that four defendants infringed the "LaGrange" trademark was granted, in part, by a Nebraska federal judge on April 18 (JDR Industries v. James L. Vance, et al., No. 14-284, D. Neb., 2017 U.S. Dist. LEXIS 58912).



Judge: Fact Issues Exist Whether Defendants Used Bimbo's Trade Secrets
SALT LAKE CITY - Defendants in a misappropriation of trade secrets lawsuit have failed to show that no genuine issues of material fact exist as to whether they violated Utah's trade secrets statute in producing bread products using the trade secrets owned by another company, a federal judge in Utah ruled April 12 (Bimbo Bakeries Inc. v. Leland Sycamore, et al., No. 13-749, D. Utah, 2017 U.S. Dist. LEXIS 57861).



9th Circuit Affirms Dismissal In Dispute Over Growth Hormone Ads
SAN FRANCISCO - A California federal judge properly rejected a state law unfair competition plaintiff's effort to apply the Lanham Act's "establishment claim" standard outside the context of a Lanham Act claim, the Ninth Circuit U.S. Court of Appeals ruled April 21 (Serena Kwan, on behalf of herself and all others similarly situated v. SanMedica International, No. 15-15496, 9th Cir., 2017 U.S. App. LEXIS 6995).



Dismissal Of Trademark Dispute Between Tracks, Kentucky Downs Affirmed
CINCINNATI - Allegations that Kentucky Downs LLC infringed the trademarks of other horse racing venues when operating an historical horse-race gambling platform were properly dismissed, the Sixth Circuit U.S. Court of Appeals ruled April 19 (Oaklawn Jockey Club Inc., et al. v. Kentucky Downs LLC and Exacta Systems LLC, No. 16-5582, 6th Cir., 2017 U.S. App. LEXIS 7078).



Video-On-Demand Patentee Seeks Review Of Alice Standard For Abstract Ideas
WASHINGTON, D.C. - Asserting that a lack of uniformity exists as to courts' application of the Alice v. CLS Bank International, 134 S.Ct. 2347 (2014), standard of patent eligibility, the owner of a video-on-demand (VOD) patent on April 13 filed a petition for certiorari, asking the U.S. Supreme Court to clarify its ruling in Alice as it relates to abstract ideas (Broadband iTV Inc. v. Hawaiian Telcom Inc., et al., No. 16-1241, U.S. Sup.).



3 Amicus Briefs Support Certiorari In Samsung, Apple Patent Suit
WASHINGTON, D.C. - Amicus curiae briefs filed April 10 by intellectual property professors, small business advocates and technology associates urge the U.S. Supreme Court to grant certiorari in a patent dispute between Samsung Electronics Co. Ltd. and Apple Inc., with the amici arguing that critical matters of obviousness and injunctive relief merit review (Samsung Electronics Co. Ltd., et al. v. Apple Inc., No. 16-1102, U.S. Sup.).



Petition For Rehearing Filed With Federal Circuit In Section 101 Dispute
WASHINGTON, D.C. - A February ruling by the Federal Circuit U.S. Court of Appeals that affirmed findings that two data-processing patents claim ineligible subject matter was erroneous, the patent owner told the Federal Circuit in an April 19 combined petition for panel rehearing and rehearing en banc (Evolutionary Intelligence LLC v. Sprint Nextel Corp., et al., Nos. 2016-1188, -1190, -1191, -1192, -1194, -1195, -1197, -1198, -1199, Fed. Cir.).



SimpleAir, Google Again Square Off In Patent Appeal To Federal Circuit
WASHINGTON, D.C. - On the heels of a March ruling that confirmed a Patent Trial and Appeal Board holding that one SimpleAir Inc. patent is valid, the Federal Circuit U.S. Court of Appeals is poised to decide the propriety of a Texas federal judge's decision to dismiss a lawsuit against Google Inc. over two different SimpleAir patents (SimpleAir Inc. v. Google Inc., No. 16-2378, Fed. Cir.).



Patent Dispute Over Anticonvulsant Drug Briefed Before Federal Circuit
WASHINGTON, D.C. - A Delaware federal judge erroneously determined that a claimed pharmaceutical compound for lacosamide is not anticipated or obvious, two generic pharmaceutical companies recently argued to the Federal Circuit U.S. Court of Appeals (UCB Inc., et al. v. Accord Healthcare Inc., et al., Nos. 2016-2610, -2683, -2685, -2698, -2710, 2017-1001, Fed. Cir.).



PTO Director Defends Claim Construction In Appeal Of Rejected Patent
WASHINGTON, D.C. - The Federal Circuit U.S. Court of Appeals on May 1 will hear oral arguments in a dispute over the Patent Trial and Appeal Board's construction of the disputed term "traversing," as it appears in a patent application for a device for extracting energy from fluid flow within the body (In re: Medical Biomech Partnership, No. 16-2159, Fed. Cir.).



2nd Petition For Certiorari Filed In Dispute Over 'M2' Trademark
WASHINGTON, D.C. - An April 7 petition for certiorari to the U.S. Supreme Court represents the second request for review of a 2016 Fifth Circuit U.S. Court of Appeals ruling that affirmed a finding of no infringement in a dispute over two technology firms' use of the "M2" trademark that has led to the filing of three lawsuits (David Escamilla v. M2 Technology Inc., et al., No. 16-1213, U.S. Sup.).



Day Care Operator Appeals Contempt Ruling In 'Rainbow' Trademark Suit
RICHMOND, Va. - A child care center operator filed a brief with the Fourth Circuit U.S. Court of Appeals on April 26, seeking reversal of a trial court's entry of two contempt orders, arguing that it made good faith efforts to remove a disputed "Rainbow" from its website (Rainbow School Inc. v. Rainbow Early Education Holding LLC, et al., No. 17-1055, 4th Cir.).



Amici Urge 9th Circuit To Maintain Vicarious Copyright Liability Standard
PASADENA, Calif. - In an April 17 amicus curiae brief in the Ninth Circuit U.S. Court of Appeals, four internet and technology organizations oppose an adult entertainment firm's bid for rehearing its copyright infringement suit against a usenet provider, arguing that the existing panel ruling identified the proper causal connection standard for determining vicarious liability in online and technological contexts (Perfect 10 Inc. v. Giganews Inc., et al., No. 15-55500, 15-55523 and 15-56026, 9th Cir.).



Songwriter Appeals Sony's Attorney Fees Award In Copyright Suit To 1st Circuit
BOSTON - Despite rulings against him by a trial court and an appeals panel, a musician argues in an April 13 brief to the First Circuit U.S. Court of Appeals that Sony Corporation of America was improperly awarded attorney fees because it did not prevail on the underlying copyright infringement claims since the prior rulings deferred adjudication on the merits to an arbitrator (Luis Adrian Cortes-Ramos v. Sony Corporation of America, et al., No. 16-2441, 1st Cir.).



Federal Circuit Rejects Google Bid For En Banc Review In Patent Row
WASHINGTON, D.C. - A November 2016 ruling that the Patent Trial and Appeal Board relied on an incorrect definition of "covered business method patent" in assessing a petition for covered business method (CBM) review by Google Inc. will stand, the Federal Circuit U.S. Court of Appeals ruled April 4 (Google Inc. v. Unwired Planet LLC, No. 15-1812, Fed. Cir.).



Federal Circuit Rules Against Google, Affirms Patent Board Holding
WASHINGTON, D.C. - A decision by the Patent Trial and Appeal Board (PTAB) to uphold the patentability of an information transmission patent was not erroneous, the Federal Circuit U.S. Court of Appeals ruled March 28, in a blow to Google Inc. (Google Inc. v. SimpleAir Inc., No. 16-1901, Fed. Cir., 2017 U.S. App. LEXIS 5362).



Apple Seeks Discovery Of U.K. Suit Documents In Wireless Tech Patent Case
SAN FRANCISCO - In a March 29 reply brief in California federal court, Apple Inc. defended its motion to compel discovery of documents from a lawsuit in the United Kingdom, contending that "they may bear on whether [Unwired Planet LLC's] damages demand" in the present patent case "constitutes a 'reasonable' royalty" (Unwired Planet LLC v. Apple Inc., No. 3:13-cv-04134, N.D. Calif.).



Federal Circuit Upholds Rejection Of Request For Corrected Inventorship
WASHINGTON, D.C. - A California federal judge properly dismissed a claim for correction of patent inventorship, but the dismissal should have been without prejudice, the Federal Circuit U.S. Court of Appeals ruled March 29 (Phyllis Huster v. J2 Cloud Services Inc., et al., No. 16-1639, Fed. Cir., 2017 U.S. App. LEXIS 5434).



Federal Circuit Affirms: Inventorship Claim Barred By Sovereign Immunity
WASHINGTON, D.C. - A federal judge in Oregon properly found that the University of Massachusetts (UMass) is entitled to sovereign immunity in a lawsuit seeking a correction of patent inventorship, the Federal Circuit U.S. Court of Appeals ruled April 12 (Mussa Ali v. Carnegie Institution of Washington, No. 16-2320, Fed. Cir.; 2017 U.S. App. LEXIS 6250).



Federal Circuit Affirms Disposition Of Request For Fees In Patent Case
WASHINGTON, D.C. - A Delaware federal judge properly determined that a Medtronic Inc. claim for attorney fees in a patent dispute was timely and that a sublicensor was responsible for paying the fees because of a contractual fee-shifting provision, the Federal Circuit U.S. Court of Appeals ruled April 4 (Medtronic Inc. v. Mirowski Family Ventures LLC v. Boston Scientific Corp., et al., Nos. 2015-1996, 2015-2074, 2015-2075, Fed. Cir., 2017 U.S. App. LEXIS 5766).



Federal Circuit Affirms Denial Of Nonimmigrant Alien's Patent Agent Registration
WASHINGTON, D.C. - A decision by the U.S. Patent and Trademark Office (PTO) that denied a nonimmigrant alien's request to register as a patent agent was neither arbitrary nor capricious, the Federal Circuit U.S. Court of Appeals ruled April 5 (Jinyang Guo v. Michelle K. Lee, Director, U.S. Patent and Trademark Office, No. 17-1244, Fed. Cir.).



Federal Circuit Sides With Defendants In Drug Patent Dispute
WASHINGTON, D.C. - An Illinois federal judge's bench trial final judgment of infringement was reversed April 6 in a longstanding legal dispute over a patented process for preparing anticoagulant drugs featuring bivalirudin as an active ingredient (The Medicines Co. v. Mylan Inc., et al., Nos. 2015-1113, -1151, -1181, Fed. Cir.).



Magistrate Judge Bars In Part Testimony On Terms In Patent Infringement Suit
TYLER, Texas - A Texas federal magistrate judge on April 1 granted and denied in part testimony from a noninfringement expert and an invalidity expert on the constructions of "metal film" and "gate wiring" in a patent infringement lawsuit (Eidos Display LLC and Eidos III LLC v. Chi Mei Innolux Corp., et al., No. 11-00201, E.D. Texas, 2017 U.S. Dist. LEXIS 50167).



Judge Rules On Motions To Exclude Testimony In Patent Infringement Suit
SAN DIEGO - In a patent infringement lawsuit, a California federal judge on April 3 addressed several motions to exclude testimony on damages and reasonable royalty with regard to the alleged infringement by wireless companies to a patent relating to a mobile communication system with a moving base station (Carucel Investments L.P. v. Novatel Wireless Inc., et al., No. 16-118, S.D. Calif., 2017 U.S. Dist. LEXIS 50855).



Judge Denies Exclusion Of Expert Testimony In Patent Infringement Lawsuit
BOWLING GREEN, Ky. - After refusing to exclude expert testimony from both sides in a patent infringement case involving disposable pants-type diapers, a Kentucky federal judge on April 10 granted and denied in part summary judgment of noninfringement to a baby diaper manufacturer on certain accused products (SCA Hygiene Products Aktiebolag, et al. v. First Quality Baby Products LLC, et al., No. 10-00122, W.D. Ky., 2017 U.S. Dist. LEXIS 54167).



Patent Board Allows Canceled, Substituted Claims In Patent Review
ALEXANDRIA, Va. - Shire LLC on March 31 prevailed in a final written decision by the Patent Trial and Appeal Board, which in April 2016 instituted inter partes (IPR) review of six claims of a drug delivery system patent (Amerigen Pharmaceuticals Ltd. v. Shire LLC, No. IPR2015-02009, PTAB).



Apple Seeks Inter Partes Review Of Encoding Patent Before Board
ALEXANDRIA, Va. - In an April 4 petition for inter partes review by the Patent Trial and Appeal Board, Apple Inc. took aim at a patent that describes perceptually weighting speech signals during encoding (Apple Inc. v. St. Lawrence Communications LLC, No. IPR2017-01244, PTAB).



Board Rejects Claims Of Sheath Patent As Anticipated, Obvious
ALEXANDRIA, Va. - In an April 10 ruling that largely affirmed findings by a patent examiner, the Patent Trial and Appeal Board deemed 16 claims of a patented sheath used with an anastomosis for the prevention of fluid leaks unpatentable (Ex parte Joshua Stopek, Jacqueline Jones and Amin Elachchabi, No. 2015-005258, PTAB).



In Final Written Decision, Patent Board Partly Sides With Patent Owner
ALEXANDRIA, Va. - Although agreeing with a petitioner that three claims of a malware protection patent are obvious, the Patent Trial and Appeal Board on April 11 confirmed the patentability of nine other claims (Palo Alto Networks Inc., et al. v. Finjan Inc., No. IPR2016-00159, PTAB).



Uber Files Petition For Inter Partes Review Of Location-Sharing Patent
ALEXANDRIA, Va. - Six claims of a patented method for location sharing and mobile phone tracking are unpatentable as anticipated, Uber Technologies Inc. alleges in an April 7 petition for inter partes review (Uber Technologies Inc. v. X One Inc., No. IPR2017-01255, PTAB).



Bipartisan Legislation Proposed For Ending Reverse Payments
WASHINGTON, D.C. - The "Preserve Access to Affordable Generics Act" (S. 124) was introduced Jan. 12 by U.S. Sens. Amy Klobuchar, D-Minn., and Chuck Grassley, R-Iowa, in what was touted by Klobuchar as "bipartisan legislation to crack down on anti-competitive pay-for-delay pharmaceutical deals."



9th Circuit Affirms: Publicity Rights Claim Preempted By Copyright
SAN FRANCISCO - An order that granted a special motion to strike a common-law right of publicity claim pursuant to California's anti-SLAPP statute was not erroneous because the claims are preempted by Section 301 of the federal Copyright Act, 17 U.S.C. 101 et seq., the Ninth Circuit U.S. Court of Appeals ruled April 5 (Patrick Maloney, et al. v. T3Media Inc., No. 15-55630, 9th Cir., 2017 U.S. App. LEXIS 5894).



California Federal Judge Sides With Copyright Infringement Defendant
LOS ANGELES - On the heels of a March 9 recommendation by a California federal magistrate judge that a copyright infringement plaintiff should be sanctioned for failure to comply with a discovery order, a California federal judge on March 31 granted a defendant partial summary judgment with regard to 11 of 12 allegedly infringing fabric designs (Urban Textile v. Rue 21 Inc. and Mark Edwards Apparel Inc., No. 14-8285, C.D. Calif., 2017 U.S. Dist. LEXIS 49573).



9th Circuit Sides With Copyright Plaintiff In Fabric Design Case
SAN FRANCISCO - Where two works share an extrinsic similarity so strong that the works are near duplicates, district courts may properly conclude that no reasonable juror could find a lack of substantial similarity in the works' overall concept and feel, the Ninth Circuit U.S. Court of Appeals ruled April 3 (Unicolors Inc. v. Urban Outfitters Inc., No. 15-55507, 9th Cir., 2017 U.S. App. LEXIS 5675).



California Federal Judge: Concert Performances Not Part Of Copyright Claim
LOS ANGELES - Pop singer Katy Perry on April 3 prevailed in a dispute over her song "Dark Horse," when a California federal judge agreed that Perry's public performance of the work at concerts during her "Prismatic World Tour" cannot, at the summary judgment stage, form the basis of a copyright infringement claim (Marcus Gray, et al. v. Katy Perry, et al., No. 15-5642, C.D. Calif., 2017 U.S. Dist. LEXIS 50803).



9th Circuit Reverses Safe-Harbor Holding In Web Copyright Case
SAN FRANCISCO - Findings by a California federal judge that a copyright infringement defendant social media platform is entitled to safe-harbor immunity under Section 512(c) of the Digital Millennium Copyright Act, 17 U.S.C. 512(c), were reversed and remanded April 7 by the Ninth Circuit U.S. Court of Appeals (Mavrix Photographs LLC v. LiveJournal Inc., No. 14-56956, 9th Cir.; 2017 U.S. App. LEXIS 6028).