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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®



 



4th Circuit: Contributory Copyright Infringement Requires Proof Of Willful Blindness
RICHMOND, Va. - In a Feb. 1 ruling, the Fourth Circuit U.S. Court of Appeals upheld a Virginia federal judge's determination that two internet service providers (ISPs) are not entitled to a safe-harbor defense to allegations of contributory copyright infringement, but vacated and reversed a jury's $25 million statutory damage award upon finding that jurors were presented with erroneous instructions (BMG Rights Management [US] LLC, et al. v. Cox Communications Inc., et al., No. 16-1972, 17-1352 and 17-1353, 4th Cir., 2018 U.S. App. LEXIS 2487).



California Federal Judge Orders YouTube, Google To Show Cause For Removal
LOS ANGELES - A recent removal by YouTube LLC and Google Inc. of a purported copyright action to California federal court and subsequent request for dismissal prompted a California federal judge on Jan. 22 to enter an order to show cause for why the case should not be returned to Los Angeles County Superior Court (Akiko Kijimoto v. YouTube LLC, et al., No. 17-8184, C.D. Calif., 2018 U.S. Dist. LEXIS 9918).



Fee Award Recommended In Copyright Dispute Over Beatles Footage
NEW YORK - In a Jan. 25 report and recommendation, a New York federal magistrate judge found that a copyright infringement dispute over footage of the Beatles performing at Shea Stadium in 1965 was unreasonable (Sid Bernstein Presents LLC v. Apple Corps Limited, et al., No. 16-7084, S.D. N.Y., 2018 U.S. Dist. LEXIS 13335).



10-Year MP3tunes Copyright Suit Settles For $39 Million
NEW YORK - A New York federal judge on Jan. 26 approved an agreement and consent judgment, settling a decade-long copyright infringement lawsuit brought by a group of record labels and music publishers against the founder of now-defunct online music-sharing service MP3tunes LLC, assessing an agreed-upon $39 million judgment against the defendant and adjourning the case (Capitol Records LLC, et al. v. MP3tunes LLC, et al., No. 1:07-cv-09931, S.D. N.Y.).



U2 Wins Dismissal Of New York Copyright Dispute Over Guitar Solo
NEW YORK - A composer and musician's allegation that the band U2 infringed his copyright during a guitar solo on the song "The Fly" is both "vague and sweeping," a New York federal judge ruled Jan. 30 (Paul Rose v. Paul David Hewson, p/k/a Bono, et al., No. 17-1471, S.D. N.Y., 2018 U.S. Dist. LEXIS 14840).



Counterclaim Of Copyright Invalidity Stricken As Redundant By Federal Judge
CHICAGO - A counterclaim seeking a declaration of copyright invalidity is "unnecessary" in light of affirmative defenses of fair use, first sale, acquiescence and license raised in response to allegations of copyright infringement, an Illinois federal judge ruled Jan. 23 (Maui Jim Inc. v. SmartBuyGlasses Optical Limited, No. 16-9788, N.D. Ill., 2018 U.S. Dist. LEXIS 10093).



Federal Circuit Grants Panel Rehearing, Citing Wi-Fi One Patent Ruling
WASHINGTON, D.C. - In light of its Jan. 8 en banc holding in Wi-Fi One LLC v. Broadcom Corp. that the bar on judicial review of decisions to institute inter partes review (IPR) does not extend to determinations that a petition for IPR is time-barred, the Federal Circuit U.S. Court of Appeals on Jan. 19 agreed to revisit a 2015 ruling that rejected allegations by a patent owner that a petition for IPR was untimely (Click-to-Call Technologies LP v. Oracle Corp., et al., No. 15-1242, Fed Cir.).



Federal Circuit Upholds Texas Judge; Patents Survive Section 101 Challenge
WASHINGTON, D.C. - Four claims of two Core Wireless Licensing S.A.R.L. patents directed to a small screen display interface are patent-eligible under Section 101 of the Patent Act, 35 U.S.C. 101, a divided Federal Circuit U.S. Court of Appeals ruled Jan. 25 (Core Wireless Licensing S.A.R.L. v. LG Electronics Inc., et al., Nos. 2016-2684, 2017-1922, Fed. Cir.).



California Federal Judge: Search Engine Optimization Patents Are Invalid
SAN FRANCISCO - In a Jan. 19 holding, a California federal judge rejected, pursuant to Section 101 of the Patent Act, 35 U.S.C. 101, five patents covering the process of search engine optimization (SEO) (BrightEdge Technologies Inc. v. Searchmetrics GmbH, et al., No. 14-1009, N.D. Calif., 2018 U.S. Dist. LEXIS 9007).



Federal Circuit Upholds Judge's Refusal To Enter Judgment On Patent Verdict
WASHINGTON, D.C. - The Federal Circuit U.S. Court of Appeals on Jan. 19 rejected assertions by a patent defendant that a Texas federal judge erred in ordering jurors to take back their invalidity holding, while also rejecting claims by the patent owner that the same judge erred in granting a summary judgment of noninfringement of another patent before trial (Flexuspine Inc. v. Globus Medical Inc., No. 17-1188, Fed. Cir., 2018 U.S. App. LEXIS 1280).



New Jersey Federal Judge Won't Dismiss Induced, Willful Infringement Claims
TRENTON, N.J. - Efforts by Telebrands Inc. - maker of the "Polar Pooch" self-cooling mat - to obtain dismissal of allegations that it induced others to infringe two cooling platform patents were unsuccessful Jan. 24, when a New Jersey federal judge deemed the claim sufficient under the Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), pleading standards (The Green Pet Shop Enterprises LLC v. Telebrands Inc., No. 17-6179, D. N.J.).



Rejection By Patent Board For Obviousness-Type Double Patenting Affirmed
WASHINGTON, D.C. - An ex parte re-examination by the Patent Trial and Appeal Board that resulted in the rejection of seven claims of the patented immunosuppressive drug Remicade was not erroneous, the Federal Circuit U.S. Court of Appeals ruled Jan. 23, upholding findings of obviousness-type double patenting (In re: Janssen Biotech Inc., et al., No. 17-1257, Fed. Cir.).



Federal Circuit: Patent Board Must Revisit Patentability Holding
WASHINGTON, D.C. - In a Jan. 25 ruling, the Federal Circuit U.S. Court of Appeals found that the Patent Trial and Appeal Board failed to address arguments regarding the patentability of various dependent patent claims separately from independent claims deemed unpatentable in a separate inter partes review (IPR) (MaxLinear Inc. v. CF Crespe LLC, No. 17-1039, Fed. Cir.).



Federal Circuit: Patent Board Erred In Treatment Of Prior Art Reference
WASHINGTON, D.C. - In a Jan. 30 decision, the Federal Circuit U.S. Court of Appeals partly affirmed a rejection by the Patent Trial and Appeal Board of various claims of a reciprocating rotary arthroscopic instrument patent but reversed with regard to others, amid findings that the board erred in deeming one prior art reference analogous (Smith & Nephew Inc. v. Hologic Inc., No. 17-1008, Fed. Cir.).



California Federal Jury Renders $26.7 Million Patent Infringement Verdict
SAN FRANCISCO - A patent dispute over noninvasive prenatal testing (NIPT) ended in an infringement verdict Jan. 25 in a California federal court (Illumina Inc. v. Ariosa Diagnostics Inc., No. 12-5501, N.D. Calif.).



D.C. Federal Judge: USPTO Satisfied Freedom Of Information Act Request
WASHINGTON, D.C. - A Freedom of Information Act (FOIA) request for documents relating to the U.S. Patent and Trademark Office (USPTO)'s Sensitive Application Warning System (SAWS) program was adequately fulfilled by the USPTO, according to a Jan. 31 ruling by a District of Columbia federal judge (R. Danny Huntington v. U.S. Department of Commerce, No. 15-2249, D. D.C., 2018 U.S. Dist. LEXIS 15430).



University Seeks Rehearing Of Decision To Deny Stay Of Inter Partes Review
ALEXANDRIA, Va. - The Regents of the University of California on Jan. 26 urged the Patent Trial and Appeal Board to revisit a Jan. 12 order that denied the university a third extension of its deadline to file preliminary response to two petitions for inter partes review (IPR) by St. Jude Medical LLC (SJM) (St. Jude Medical LLC v. Regents of the University of California, Nos. IPR2017-01338, -01339, PTAB).



Patent Board: 8 Claims Of Cellular Communications Patent Are Obvious
ALEXANDRIA, Va. - In a Jan. 23 final written decision, the Patent Trial and Appeal Board sided squarely with several petitioners seeking inter partes review of a Cellular Communications Equipment LLC patent relating to the 3rd Generation Partnership Project (3GPP) Long Term Evolution (LTE) wireless communication system (Apple Inc., et al. v. Cellular Communications Equipment LLC, No. IPR2016-01480, PTAB).



Patent Board Sides With Patent Owner In Final Written Decision
ALEXANDRIA, Va. - A challenge to 16 claims of a wrinkle reduction patent was unsuccessful Jan. 19, when the Patent Trial and Appeal Board turned away assertions of obviousness (Ulthera Inc. v. Dermafocus LLC, No, IPR2016-01459, PTAB).



Apple Petitions Board For Review Of Battery Current Control Patent
ALEXANDRIA, Va. - A Uniloc USA Inc. patent disclosing, among other things, a method of discharging a battery once a battery hits a predetermined temperature threshold would have been obvious to a person of skill in the art (POSITA), Apple Inc. asserts in a Jan. 23 petition for inter partes review (Apple Inc. v. Uniloc USA Inc., No. IPR2018-00523, PTAB).



Petitioner Tells Patent Board Taylor Made Golf Club Head Is Obvious
ALEXANDRIA, Va. - A global golf equipment manufacturer on Jan. 26 petitioned the Patent Trial and Appeal Board for inter partes review of a Taylor Made Golf Company Inc. patent relating to a "wood-type golf club head" (Parsons Xtreme Golf LLC v. Taylor Made Golf Company Inc., No. IPR2018-00537, PTAB).



4th Circuit Vacates, Remands Dispute Over Redskins Trademarks
RICHMOND, Va. - Citing the U.S. Supreme Court's June 2017 decision in Matal v. Tam, 137 S. Ct. 1744, 1751 (2017), the Fourth Circuit U.S. Court of Appeals on Jan. 18 vacated and remanded to the Eastern District of Virginia a dispute over the registrability of six trademarks and logos belonging to the Washington Redskins professional football team (Pro-Football Inc. v. Amanda Blackhorse, et al., No. 15-1874, 4th Cir., 2018 U.S. App. LEXIS 1186).



Suit Over Sweeteners' Packaging In Franchise Network Survives Dismissal
INDIANAPOLIS - An Indiana federal judge on Jan. 18 denied a motion to dismiss a lawsuit accusing the owner of Applebee's and IHOP restaurants of using artificial sweetener in its franchise network that's packaged in a yellow packet made to look like trademarked Splenda sweetener (Heartland Consumer Products LLC, et al. v. DineEquity, Inc., et al., No. 17-1035, S.D. Ind., 2018 U.S. Dist. LEXIS 7983).



Jack Daniel's Wins Injunction, Judgment In Arizona Trademark Case
PHOENIX - Following a four-day bench trial in October 2017, an Arizona federal magistrate judge on Jan. 29 sided squarely with declaratory judgment defendant Jack Daniel's Properties Inc. in a trademark and trade dress dispute over a "Bad Spaniels" dog chew toy (VIP Products LLC v. Jack Daniel's Properties Inc., No. 14-2057, D. Ariz., 2018 U.S. Dist. LEXIS 14432).



Missouri Federal Judge Dismisses Service Mark Claims By Karaoke Company
ST. LOUIS - Allegations of service mark infringement against four defendants were dismissed by a Missouri federal judge on Jan. 23, based upon findings that a karaoke licensing company is unlikely to succeed on the merits of its claims (Phoenix Entertainment Partners LLC v. Sports Legends LLC, et al., No. 17-1209, E.D. Mo., 2018 U.S. Dist. LEXIS 10381).



NCAA Alleges Dealerships Violated UCL, Infringed On March Madness Mark
LOS ANGELES - The National Collegiate Athletic Association (NCAA) on Jan. 26 sued the operators of vehicle dealerships in relation to the alleged use of its trademark, asserting causes of action for infringement and violation of California's unfair competition law (UCL) (National Collegiate Athletic Association v. Ken Grody Management Inc., et al., No. 8:18-cv-00153, C.D. Calif.).



Insurer Has No Duty To Pay For Independent Counsel In Copyright Suit, Panel Says
CHICAGO - An Illinois appeals panel on Jan. 22 affirmed a lower court's ruling that a commercial general liability insurer has no obligation to reimburse its insured for more than $16,000 in independent counsel fees incurred in an underlying copyright infringement dispute, rejecting the insured's contention that a conflict of interest entitled it to independent counsel (Bean Products, Inc. v. Scottsdale Insurance Co., No. 1-17-0421, Ill. App., 1st Dist., Div. 1, 2018 Ill. App. Unpub. LEXIS 89).



Federal Circuit To Hold Arguments In Kodak Appeal Of Patent Board Holding
WASHINGTON, D.C. - The Federal Circuit is scheduled to hear allegations in oral arguments on Feb. 1 by Eastman Kodak Co. and others that the Patent Trial and Appeal Board erred when deeming three claims of a "computer to plate" printing patent nonobvious (Eastman Kodak Company, et al., v. CTP Innovations, No. 17-1278, Fed. Cir.).



Maker Of Antipsychotic Drug Tells Federal Circuit Patent Is Infringed
WASHINGTON, D.C. - In a Jan. 26 cross-appellant brief Forest Laboratories LLC argued that although a Delaware federal judge properly determined that two claims of the patented atypical antipsychotic drug Saphris were not obvious, she erred in finding that several generic drug makers' proposed products would not infringe (Forest Laboratories LLC v. Hikma Pharmaceuticals LLC, et al., No. 17-2369, Fed. Cir.).



ABA Tells Federal Circuit: PTO Fee Awards Would 'Hamper Access To Justice'
WASHINGTON, D.C. - In a Jan. 23 amicus brief, the American Bar Association (ABA) urges the Federal Circuit U.S. Court of Appeals to undo its June 2017 ruling that the U.S. Patent and Trademark Office (USPTO) may seek recovery of its attorney fees when it must defend its rejection of a patent application in court (Nantkwest Inc. v. Joseph A. Matal, Acting Director U.S. Patent and Trademark Office, No. 16-1794, Fed. Cir.).



Apple Tells Federal Circuit Wisconsin Patent Trial Was 'Fraught With Error'
WASHINGTON, D.C. - In a Jan. 17 appellee brief filed in the Federal Circuit U.S. Court of Appeals, the Wisconsin Alumni Research Foundation (WARF) defended the propriety of an October 2015 jury verdict that Apple Inc. infringed a computer processor patent, in contrast to the software giant's recent assertion that "no reasonable jury could find that Apple's processors operate exactly as the asserted claims require" (Wisconsin Alumni Research Foundation v. Apple Inc., Nos. 2017-2265, -2332, -2380, -2400, Fed. Cir.).



Oksana Baiul Petitions High Court Over Copyright Act Preemption
WASHINGTON, D.C. - In a Jan. 22 petition for certiorari, Olympic figure skater Oksana Baiul asks the U.S. Supreme Court to consider whether the complete preemption doctrine of Section 301 of the Copyright Act can be applied to state law claims that merely touch on copyright law (Oksana Baiul, et al. v. NBC Sports, et al., No. 17-1033, U.S. Sup.).



Architectural Firm Seeks Review Of Copyright Law Protecting Building Designs
WASHINGTON, D.C. - In a Jan. 19 petition for certiorari, an architectural firm asks the U.S. Supreme Court to review the rights and affections provided to authors of architectural works under the Architectural Works Copyright Protection Act (AWCPA), asserting that lower court rulings failed to enforce its rights by finding that a former client had an implied license in disputed design plans (Frost-Tsuji Architects v. Highway Inn Inc., et al., No. 17-1025, U.S. Sup.).



Asian Food Firm Defends Fees Denial In Trademark Suit To 9th Circuit
SAN FRANCISCO - In a Jan. 22 appellee brief, an Asian foods maker tells the Ninth Circuit U.S. Court of Appeals that a trial court has twice properly denied a defendant's motions for attorney fees in a trademark dispute, arguing that the correct "totality of the circumstances" standard was thoroughly considered (Anhing Corp. v. Viet Phu Inc., et al., No. 17-55851, 9th Cir.).



'Sealtight' Trademark Holder Tells 8th Circuit It Deserves Disgorgement Of Profits
ST. LOUIS - A fastener manufacturer argues in a Jan. 30 brief in the Eighth Circuit U.S. Court of Appeals that an infringement verdict in its favor related to its "Sealtight" trademark should have resulted in an award of disgorgement of the infringer's profits, saying that the trial court improperly balanced the parties' equities in denying the award (B&B Hardware Inc. v. Hargis Industries Inc., No. 17-1570 and 17-1755, 8th Cir.).



Supreme Court Grants Certiorari In Dispute Over Patent Lost Profit Awards
WASHINGTON, D.C. - In its Jan. 12 order list, the U.S. Supreme Court granted certiorari for a second time in a dispute over the availability of lost profits awards in cases of infringement under Section 271(f) of the Patent Act, 35 U.S.C. 271(f), where the profits arose from prohibited combinations occurring outside the United States (WesternGeco LLC v. ION Geophysical Corp., No. 16-1011, U.S. Sup.).



Certiorari Denied In Dispute Over Fee Award In Longstanding Patent Case
WASHINGTON, D.C. - A June 2017 decision by the Federal Circuit U.S. Court of Appeals to reverse, for a second time, a Pennsylvania federal judge's award of attorney fees on behalf of a prevailing patent defendant will stand, thanks to a denial of certiorari in the case Jan. 8 by the U.S. Supreme Court (All-Tag Security S.A. v. Checkpoint Systems Inc., No. 17-519, U.S. Sup.).



Overturning Achates, Federal Circuit Says Time-Bar Rulings Are Appealable
WASHINGTON, D.C. - In a divided Jan. 8 ruling, an en banc Federal Circuit U.S. Court of Appeals found that the bar on judicial review of decisions to institute inter partes review (IPR) does not extend to determinations that a petition for IPR is time-barred under the America Invents Act (AIA), 35 U.S.C. 315(b) (Wi-Fi One LLC v. Broadcom Corp., Nos. 15-1944, -1945, -1946, Fed. Cir.).



Federal Circuit Vacates Finding Apotex Infringed Drug Delivery Patents
WASHINGTON, D.C. - A Delaware federal judge erred by failing to construe "extended release coating" as the term appears in two drug delivery patents as requiring a continuous outer film, in light of intrinsic evidence, the Federal Circuit U.S. Court of Appeals ruled Jan. 4 (Aptalis Pharmatech Inc., et al., v. Apotex Inc., et al., No. 17-1344, Fed. Cir., 2018 U.S. App. LEXIS 201).



Federal Circuit Vacates Denial Of Relief In Hair Treatment Patent Case
WASHINGTON, D.C. - In a Jan. 16 ruling, the Federal Circuit U.S. Court of Appeals found that a Delaware federal judge erred in basing her decision to deny a patent assignee and licensee injunctive relief on an erroneous claim construction that excluded various accused L'Oreal USA Inc. products (Liqwd Inc., et al., v. L'Oreal USA Inc., et al., No. 17-2295, Fed. Cir.).



Federal Circuit Upholds Patent Board Anticipation, Obviousness Rulings
WASHINGTON, D.C. - A final decision by the Patent Trial and Appeal Board (PTAB) that upheld an examiner's rejection of various claims of a patented process for crossing, or mating, two parent soybean lines was affirmed Jan. 8 by the Federal Circuit U.S. Court of Appeals (Monsanto Technology LLC v. E.I. du Pont de Nemours & Co., No. 17-1032, Fed. Cir.).



Enhanced Damages, Willfulness Finding Vacated By Federal Circuit
WASHINGTON, D.C. - A jury verdict of willful patent infringement and corresponding $24,280,330 compensatory damages award, along with a Nebraska federal judge's subsequent doubling of that sum, were vacated and remanded Oct. 12 by the Federal Circuit U.S. Court of Appeals (Exmark Manufacturing Company v. Briggs & Stratton Power Products Group LLC, No. 16-2197, Fed. Cir., 2018 U.S. App. LEXIS 783).



Federal Circuit Affirms: Malware Detection Patent Is Patent-Eligible
WASHINGTON, D.C. - Although upholding a California federal judge's determination of patent eligibility, the Federal Circuit U.S. Court of Appeals on Jan. 10 deemed a defendant entitled to judgment as a matter of law (JMOL) with regard to a separate patent on grounds that an accused malware detection product does not perform a claimed "policy index" limitation (Finjan Inc. v. Blue Coat Systems Inc., No. 16-2520, Fed. Cir.).



Federal Circuit Affirms Denial Of Fees In Honeywell Patent Dispute
WASHINGTON, D.C. - A Delaware federal judge did not err in determining that allegations of infringement of a patent later deemed invalid for violating Section 102 of the Patent Act, 35 U.S.C. 102, were not exceptional, the Federal Circuit U.S. Court of Appeals affirmed Jan. 11 (Honeywell International Inc. v. FujiFilm Corporation, et al., Nos. 2017-1070, -1073, Fed. Cir., 2018 U.S. App. LEXIS 684).



Federal Circuit Affirms Obviousness Rejection Of Patent Application
WASHINGTON, D.C. - An inventor's efforts to patent a portable memory device identification system were unsuccessful Jan. 17, when the Federal Circuit U.S. Court of Appeals instead affirmed findings by the Patent Trial and Appeal Board that the invention would be obvious to a person of skill in the art (In re: Dominick Theresa, No. 17-1920, Fed. Cir.).



Magistrate Strikes Some Expert Testimony In Ticket Sales Patent License Row
MARSHALL, Texas - A Texas federal magistrate judge on Jan. 17 granted in part a motion by a patent holder to exclude testimony from a ticket distributor's computer-programming expert in a dispute over a license agreement, ruling that the expert cannot offer opinions about a key term in the agreement because the meaning of the term is a question of law for a jury to determine (CEATS, Inc. v. TicketNetwork, Inc., et al., No. 2:15-cv-01470, E.D. Texas, 2018 U.S. Dist. LEXIS 7214).



Patent Board Sides With Apple, Deems All Challenged Claims Obvious
ALEXANDRIA, Va. - In a Jan. 11 final written decision, the Patent Trial and Appeal Board deemed all 24 challenged claims of a data compression patent obvious under Section 103(a) of the Patent Act, 35 U.S.C. 103(a) (Apple Inc. v. Realtime Data LLC, No. IPR2016-01366, PTAB).



Patent Owner Prevails In Final Written Decision By Patent Board
ALEXANDRIA, Va. - A patent relating to Novartis AG's Afinitor anti-cancer drug was confirmed as patentable Jan. 11 in a final written decision by the Patent Trial and Appeal Board, which rebuffed allegations of obviousness by Par Pharmaceutical Inc. and other drug makers (Par Pharmaceutical Inc., et al., v. Novartis AG, No. IPR2016-00084, PTAB).



In Covered Business Method Review, Patent Board Finds 5 Claims Ineligible
ALEXANDRIA, Va. - The Patent Trial and Appeal Board in a Jan. 16 final written decision sided with a petitioner for covered business method (CBM) review, agreeing that five claims of a method for communicating information from remote sites to a central location are directed to the abstract idea of "establishing a communications route between two points to relay information" (Emerson Electric Company v. Sipco LLC, No. CBM2016-00095, PTAB).



Covered Business Method Review Of Document Retrieval Patent Requested
ALEXANDRIA, Va. - In a Jan. 11 petition for covered business method (CBM) review, Fiserv Inc. and Hanmi Bank (Fiserv, collectively) assert that a patent titled "Method Of Obtaining An Electronically Stored Financial Document" is "solely directed to the long well-known abstract idea of simply storing and retrieving a financial document based on extremely basic information regarding the document" (Fiserv Inc., et al., v. Mirror Imaging LLC, No. CBM2018-00014, PTAB).



Drug Company Seeks Review Of Cancer Treatment Patent, Joinder With Other Case
ALEXANDRIA, Va. - West-Ward Pharmaceutical Co. on Jan. 17 took aim at a cancer treatment patent while also requesting joinder to an inter partes review (IPR) by Breckenridge Pharmaceutical Inc., in which the Patent Trial and Appeal Board on Jan. 3 instituted trial (West-Ward Pharmaceutical Co. v. Novartis Pharmaceuticals Corporation, No. IPR2018-00507, PTAB).



Government Stance On Registration Vs. Application Sought By Supreme Court
WASHINGTON, D.C. - In its Jan. 8 orders list, the U.S. Supreme Court moved one step closer to resolving a circuit split on whether a copyright infringement lawsuit may commence only upon receipt of a copyright registration or earlier, when an application for copyright is filed (Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC, et al., No. 17-571, U.S. Sup.).



5th Circuit Affirms: Assignment Extinguishes Standing In Copyright Case
NEW ORLEANS - A Texas federal judge did not err in dismissing, on standing grounds, counterclaims of copyright infringement by various Tejano recording artists, the Fifth Circuit U.S. Court of Appeals ruled Jan. 4 (Hacienda Records L.P. v. Ruben Ramos, et al., No. 16-41180, 5th Cir., 2018 U.S. App. LEXIS 211).



9th Circuit Partly Affirms, Partly Reverses In Oracle, Rimini Copyright Case
SAN FRANCISCO - In a Jan. 8 decision, the Ninth Circuit U.S. Court of Appeals upheld a Nevada federal judge's determination that a third-party software support company committed copyright infringement when it relied on a license granted to one customer to copy software from the Oracle USA Inc. website to provide services to other customers who had no such license (Oracle USA Inc., et al. v. Rimini Street Inc., et al., Nos. 16-16-832 & 16-16905, 9th Cir., 2018 U.S. App. LEXIS 463).



BitTorrent Copyright Case Rejected In Oregon On Standing Grounds
PORTLAND, Ore. - The author of the screenplay for the motion picture "Fathers & Daughters" is not the "legal owner" of the film, with standing to sue for infringement, because the exclusive rights to the work were transferred in a license granted within a distribution agreement, an Oregon federal judge ruled Jan. 17 (Fathers & Daughters Nevada LLC v. Lingfu Zhang, No. 16-1443, D. Ore., 2018 U.S. Dist. LEXIS 7435).



Kansas Federal Judge Won't Refer Case To Register Of Copyrights
KANSAS CITY, Kan. - In a Jan. 17 ruling, a Kansas federal judge denied a motion to refer to the Register of Copyrights allegations by an infringement defendant that a copyright registration for the Oil Daily publications is invalid (Energy Intelligence Group Inc., et al., v. CHS McPherson Refinery Inc., No. 16-1015, D. Kan., 2018 U.S. Dist. LEXIS 7048).



2nd Circuit Cites Matal In Dispute Over Denied Food Truck Application
NEW YORK - In a Jan. 3 ruling, the Second Circuit U.S. Court of Appeals deemed repeated denials by the New York State Office of General Services (OGS) of an application by Wandering Dago (WD) Inc. to participate in the state's Summer Outdoor Lunch Program unconstitutional (Wandering Dago Inc. v. New York State Office of General Services, et al., No. 16-622, 2nd Cir., 2018 U.S. App. LEXIS 87).



Nebraska Federal Judge Won't Retransfer Trademark Claims To Texas
OMAHA, Neb. - A request by a trademark owner to retransfer infringement allegations to the U.S. District Court for the Southern District of Texas was denied Jan. 16 by a Nebraska federal judge, who found that the plaintiff failed to show that a previously severed defendant is indispensable to the Texas action (Buc-ee's Ltd. v. Buck's Inc., et al., No. 17-287, D. Neb., 2018 U.S. Dist. LEXIS 6619).



Judge Transfers Noninfringement, UCL Action Against Harley To Wisconsin
MILWAUKEE - A California federal judge on Jan. 11 transferred an aftermarket motorcycle part company's action in which it seeks a declaration of noninfringement and asserts a claim for violation of California's unfair competition law (UCL) against a motorcycle maker to the U.S. District Court for the Eastern District of Wisconsin, noting that an underlying cease-and-desist letter originated in Wisconsin (Cobra Engineering Inc. v. H-D USA Llc, et al., No. 2:18cv71, E.D. Wis.).



9th Circuit Affirms: No Case Or Controversy In Trademark Dispute
SAN FRANCISCO - A California federal judge did not err in dismissing a declaratory judgment action over the "Merit" trademark, the Ninth Circuit U.S. Court of Appeals ruled Jan. 4, because the plaintiff in the case failed to establish the existence of an actual controversy as required by the Declaratory Judgment Act, 28 U.S.C. 2201 (Merit Healthcare International Inc. v. Merit Medical Systems Inc., No. 16-55290, 9th Cir., 2018 U.S. App. LEXIS 246).



11th Circuit Affirms: Former Member Has No Right To 'Commodores' Mark
ATLANTA - The 11th Circuit U.S. Court of Appeals on Jan. 9 found that when Thomas McClary departed the Grammy Award-winning band The Commodores in 1984, he forfeited his common-law rights to use and profit from "The Commodores" trademark (Commodores Entertainment Corporation v. Thomas McClary, et al., No. 16-15794, 11th Cir., 2018 U.S. App. LEXIS 518).



6th Circuit Reinstates Dispute Over Riflescope Trade Dress Protection
CINCINNATI - A rejection on summary judgment of allegations that a riflescope maker committed trade dress infringement through the design of its knurling was erroneous, the Sixth Circuit U.S. Court of Appeals ruled Jan. 10 (Leapers Inc. v. SMTS LLC, et al., No. 17-1007, 6th Cir., 2018 U.S. App. LEXIS 599).



Divided 1st Circuit Limits Trademark Licensee To Prepetition Damages
BOSTON - In what it deemed a case of first impression, a divided First Circuit U.S. Court of Appeals on Jan. 12 found that a trademark licensee retains only the right to seek prepetition damages following a Chapter 11 debtor-in-possession's rejection of the underlying license agreement (Mission Product Holdings Inc. v. Tempnology LLC, No. 16-9016, 1st Cir., 2018 U.S. App. LEXIS 870).



Federal Circuit Holds Oral Arguments In Dispute Over Denied Fee Award
WASHINGTON, D.C. - A dispute over the question of whether an "exceptional case" finding in a district court can be based on events that occur during an inter partes re-examination or review was argued before the Federal Circuit U.S. Court of Appeals on Jan. 10 (SAP America Inc. v. Wellogix Inc., No. 17-1176, Fed. Cir.).



Inventors: Denial Of Patent Application By Examiner Was Error
WASHINGTON, D.C. - In a Jan. 11 reply brief, two appellants tell the Federal Circuit U.S. Court of Appeals that their invention "advanced the science" by "creating a previously unknown composition of matter" and discovering a new usefulness for the composition, thereby rendering the invention eligible for patent protection (In re: Trevor Pearson and Craig Robertson, No. 17-2530, Fed. Cir.).



Patent Owner, Challenger Both Appeal Board Rulings To Federal Circuit
WASHINGTON, D.C. - An inter partes review (IPR) petitioner that successfully established obviousness of 32 claims of three patents nonetheless argues in a Jan. 9 brief that the Patent Trial and Appeal Board ruling did not go far enough and should have instead invalidated all challenged claims (Vivint Inc. v. Alarm.com Inc., Nos. 2017-2218, -2219, -2220, -2260, -2261, -2262, Fed. Cir.).



Fair Use Finding In Copyright Case Appealed By Dr. Seuss Enterprises
NEW YORK - In a Dec. 21 appellant brief to the Second Circuit U.S. Court of Appeals, Dr. Seuss Enterprises L.P. (DSE) - owner of the rights to the Dr. Seuss literary works - argues that a New York federal judge erred in deeming a play featuring the popular Seuss character Cindy-Lou Who a fair use of DSE's "How the Grinch Stole Christmas" copyright (Matthew Lombardo, et al., v. Dr. Seuss Enterprises L.P., No. 17-2952, 2nd Cir.).



Jay-Z, Others Erroneously Prevailed In Copyright Case, Appellant Tells 2nd Circuit
NEW YORK - Claims of copyright infringement surrounding the "Roc-A-Fella" logo should have proceeded but were instead disposed of on summary judgment, the alleged creator of the logo told the Second Circuit U.S. Court of Appeals on Nov. 20 (Dwayne D. Walker, Jr. v. Shawn Carter, et al., No. 17-2483, 2nd Cir.).



Festival Host To 9th Circuit: 'Life Is Beautiful' Marks Were Fraudulently Obtained
SAN FRANCISCO - The organizer of the annual "Life is Beautiful" festival tells the Ninth Circuit U.S. Court of Appeals in a Jan. 5 brief that an artist's trademark claims related to that phrase were properly dismissed due to unclean hands and a failure to use the asserted marks in commerce (Amusement Art LLC v. Life is Beautiful LLC, et al., No. 17-55045, 9th Cir.).



Federal Circuit Upholds Validity Of Stem Cell Production Patent
WASHINGTON, D.C. - A Delaware federal judge did not err in deeming a three-step method for stimulating and harvesting stem cells non-obvious, the Federal Circuit U.S. Court of Appeals ruled Dec. 18 in a win for Genzyme Corp. and Sanofi-Aventis U.S. LLC (Genzyme, collectively) (Genzyme Corporation, et al. v. Dr. Reddy's Laboratories Ltd., et al., No. 16-2206, Fed. Cir., 2017 U.S. App. LEXIS 25454).



Claims Court Finding Of Obviousness Not Clearly Erroneous, Federal Circuit Says
WASHINGTON, D.C. - In what it deemed a "case specific" ruling, the Federal Circuit U.S. Court of Appeals on Dec. 19 upheld a determination by the Court of Federal Claims that various claims of an allegedly infringed patent are obvious under Section 103 of the Patent Act, 35 U.S.C. 103 (American Innotek Inc. v. United States, No. 17-1178, Fed. Cir., 2017 U.S. App. LEXIS 25552).



Federal Circuit Partly Reverses Prior Art Holding By Patent Board
WASHINGTON, D.C. - Although agreeing with the Patent Trial and Appeal Board that a grandparent patent application provides sufficient disclosure to satisfy the written disclosure requirement, the Federal Circuit U.S. Court of Appeals on Dec. 27 reversed and remanded findings that a working prototype reduced the claims to practice before the publication date of relevant prior art (Nintendo of America Inc. v. iLife Technologies Inc., No. 16-2266, Fed. Cir., 2017 U.S. App. LEXIS 26614).



Federal Circuit Affirms Patent Board Claim Construction, Decision
WASHINGTON, D.C. - The Federal Circuit U.S. Court of Appeals on Dec. 18 affirmed a determination of patentability by the Patent Trial and Appeal Board in a dispute over a method of improved message transmission (HTC Corporation, et al., v. Cellular Communications Equipment LLC, No. 16-1880, Fed. Cir., 2017 U.S. App. LEXIS 25457).



Federal Circuit Vacates Judgment, Dismisses As Moot Appeal Of Denied Fees
WASHINGTON, D.C. - A New York federal judge's grant of summary judgment in favor of a patent infringement defendant was vacated Dec. 19 by the Federal Circuit U.S. Court of Appeals, which found that genuine disputes of material fact exist regarding whether the defendant directs or controls the performance its licensees of certain steps of a claimed method (David A. Tropp v. Travel Sentry Inc., et al., Nos. 2016-2386, -2387, -2714, 2017-1025, Fed. Cir.).



Sandoz, Others Prevail In California Patent Dispute Over Biosimilar Treatment
SAN FRANCISCO - A California federal judge on Dec. 19 granted four defendants summary judgment of noninfringement with regard to a patent covering the neutropenia treatments Neupogen and Neulasta (Amgen Inc. v. Sandoz Inc., et al., No. 14-4741, N.D. Calif.).



Delaware Federal Judge Addresses Dismissal Request In Patent Case
WILMINGTON, Del. - In a Dec. 18 memorandum, a Delaware federal judge deemed Delaware a proper forum for HTC Corp. to defend allegations of patent infringement but found that a Delaware venue for HTC America Inc. is improper pursuant to the U.S. Supreme Court's holding in TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514 (2017), and the patent venue statute, 28 U.S.C. 1400(b) (3G Licensing S.A., et al. v. HTC America Inc., et al., No. 17-83, D. Del., 2017 U.S. Dist. LEXIS 207202).



Pokemon GO Maker Prevails In California Patent Litigation
SAN FRANCISCO - Allegations by the owner of four mapping patents that Niantic Inc., developer of the popular Pokemon GO app, committed infringement were rejected Dec. 19 by a California federal magistrate judge, who deemed the underlying technology patent-ineligible under Section 101 of the Patent Act, 35 U.S.C. 101 (Location Based Services LLC v. Niantic Inc., No. 17-4413, N.D. Calif., 2017 U.S. Dist. LEXIS 208677).



Federal Magistrate Judge Lifts Stay, Recommends Dismissal Of Patent Case
MARSHALL, Texas - In a Dec. 19 ruling, a Texas federal magistrate judge lifted the stay of patent infringement litigation pending since 2014 and recommended that the case be dismissed with prejudice, following findings by the Patent Trial and Appeal Board that the patent in suit is invalid (C-Cation Technologies LLC v. Time Warner Cable Inc., et al., No. 14-59, E.D. Texas, 2017 U.S. Dist. LEXIS 208498).



Missouri Federal Judge Won't Compel Prescription Records In Drug Patent Case
ST. LOUIS - In a Jan. 2 memorandum, a Missouri federal judge quashed a motion to compel a Missouri-based pharmacy provider to comply with a subpoena duces tecum issued by a New Jersey federal judge overseeing patent litigation over the narcolepsy drug Xyrem (Par Pharmaceutical Inc. v. Express Scripts Specialty Distribution Services Inc., No. 17-510, E.D. Mo., 2018 U.S. Dist. LEXIS 197).



Patent Board: Claims Of Medication Adjustment Method Are Unpatentable
ALEXANDRIA, Va. - In a final written decision issued Jan. 2, the Patent Trial and Appeal Board agreed with an inter partes review (IPR) petitioner that six claims of a method and apparatus for automatically adjusting patient medication levels would have been obvious to a person of skill in the art (CareFusion Corporation v. Baxter International Inc., No. IPR2016-01463, PTAB).



Snap Seeks Board Review Of Patents Asserted In California Infringement Case
ALEXANDRIA, Va. - In a series of petitions for inter partes review (IPR) filed since November, Snap Inc. has fired back at a patent owner that accused the social media giant of infringement in a California federal complaint last year; in one petition, filed Dec. 29, Snap asserts that six claims of one of the patents would have been obvious over a combination of prior art (Snap Inc. v. VaporStream Inc., No. IPR2018-00408, PTAB).



Patent Board Denies Rehearing Of Rejected Patent Application
ALEXANDRIA, Va. - A September 2017 decision that affirmed an examiner's rejection of 32 claims of a social networking system patent application on grounds of ineligibility under Section 101 of the Patent Act, 35 U.S.C. 10, will not be revisited, the Patent Trial and Appeal Board announced Dec. 18 (Ex parte John Hegeman, et al., No. 2016-004317, PTAB).



Juniper Networks, Others Prevail In Inter Partes Review Of Tracking Patent
ALEXANDRIA, Va. - The Patent Trial and Appeal Board on Dec. 29 deemed 11 claims of a patented system for tracking electronic assets unpatentable as obvious (Juniper Networks Inc., et al. v. Chrimar Systems Inc., No. IPR2016-01397, PTAB).



Honeywell Seeks Covered Business Method Review Of Intellicheck Patent
ALEXANDRIA, Va. - A patented apparatus for reading and processing content from an identification document and then determining whether the identified person is authorized to perform an activity does not pass muster under Section 101 of the Patent Act, 35 U.S.C. 101, Honeywell International Inc. asserts in a Dec. 22 petition for covered business method (CBM) review before the Patent Trial and Appeal Board (Honeywell International Inc. v. Intellicheck Mobilisa Inc., No. CBM2018-00003, PTAB).



Federal Circuit: Bar On Registration Of Immoral Marks Is Unconstitutional
WASHINGTON, D.C. - Although the Trademark Trial and Appeal Board (TTAB) correctly found that a proposed "fuct" trademark comprises immoral or scandalous material under the Lanham Act, 15 U.S.C. 1052(a), (Section 2(a)), the immoral and scandalous marks provision constitutes an unconstitutional restriction of free speech, the Federal Circuit U.S. Court of Appeals ruled Dec. 15 (In Re: Erik Brunetti, No. 15-1109, Fed. Cir., 2017 U.S. App. LEXIS 25336).



Judge Denies GoDaddy's Request For Restraining Order In Infringement, UCL Case
OAKLAND, Calif. - A California federal judge on Dec. 20 denied a request by GoDaddy Operating Co. LLC, which asserts causes of action for trademark infringement and violation of California's unfair competition law (UCL) against a graphics company and others, for a temporary restraining order, finding that the issue would be better decided on fully-briefed motions for an injunction rather than a temporary restraining order (GoDaddy Operating Company, LLC v. Usman Ghaznavi, et al., No. 17-cv-6545, N.D. Calif., 2017 U.S. Dist. LEXIS 209386).



Health Care Product Maker Files Trademark Infringement, UCL Federal Lawsuit
LOS ANGELES - A California laboratory on Jan. 2 sued several other entities in a California federal court, asserting that they infringed on its trademarks and violated California's unfair competition law (UCL) when they knowingly used the laboratory's federally registered trademarks (Trigg Laboratories Inc. v. WSM Investment LLC, et al., No. 2:18-cv-00024, C.D. Calif.).



9th Circuit Reverses As 'Unreasonable' Fee Award In Copyright Case
SAN FRANCISCO - In a Dec. 19 holding, the Ninth Circuit U.S. Court of Appeals upheld a California federal judge's denial of summary judgment on copyright infringement claims but vacated and remanded an award of attorney fees on behalf of a prevailing defendant (Anthony Johnson v. Storix Inc., No. 16-55439, 9th Cir., 2017 U.S. App. LEXIS 25682).



Heightened Standard Applied To Fraud-Based Lanham Act Claims
CHICAGO - Allegations of copyright infringement and common-law trademark infringement survived a motion to dismiss Dec. 21, but an Illinois federal judge deemed dismissal of the remainder of the complaint - including causes of action for unfair competition and false advertising - warranted (VitalGo Inc., et al. v. Kreg Therapeutics Inc., et al., No. 16-5577, N.D. Ill., 2017 U.S. Dist. LEXIS 210362).



Copyright Claim To Proceed In South Carolina Federal Court
CHARLESTON, S.C. - A copyright infringement plaintiff on Jan. 2 not only defeated a defense motion for summary judgment but also prevailed on its request for sanctions when a South Carolina federal judge agreed that a defendant failed to comply with two interrogatories (Sinclair and Associates of Greenville, LLC v. CresCom Bank, et al., No. 16-465, D. S.C., 2018 U.S. Dist. LEXIS 303).



Music Publisher Sues For $1.6 Billion For Unpaid Songwriter Royalties
LOS ANGELES - A music publishing firm on Dec. 29 sued Spotify USA Inc. for $1.6 billion in California federal court, asserting that the online music-streaming provider has failed to obtain proper licenses to cover royalties to songwriters who hold the copyrights in the compositions for songs that Spotify users have streamed billions of times (Wixen Music Publishing Inc. v. Spotify USA Inc., No. 2:17-cv-09288, C.D. Calif.).



Boston Band Founder Argues Contract Breach From Ex-Member's Trademark Use
BOSTON - In a Dec. 29 brief to the First Circuit U.S. Court of Appeals, Tom Scholz, who founded the multiplatinum-selling rock band Boston, argues that a former band member's use of the "Boston" trademark to promote his post-Boston musical endeavors breached a previous settlement agreement between them (David Thomas Scholz v. Barry Goudreau, No. 17-1264, 1st Cir.).



Generic Vietnamese Soup Marks Were Properly Canceled, Firm Tells 9th Circuit
SAN FRANCISCO - Because evidence and testimony established that the Vietnamese word "cot" is generic in the context of soup, a Vietnamese food distributor argues in a Dec. 19 brief to the Ninth Circuit U.S. Court of Appeals that a trial court correctly canceled a rival firm's trademarks incorporating the word and issued judgment accordingly on the rival's infringement claims (Quoc Viet Foods Inc. v. VV Foods LLC, et al., No. 17-55331 and 17-55742, 9th Cir.).



11th Circuit Briefed On Trademark Rights For Karaoke Tracks
ATLANTA - In briefs filed with the 11th Circuit U.S. Court of Appeals, a karaoke track producer and a karaoke service operator recently debated whether a likelihood of confusion can arise from the operator's use of purportedly pirated karaoke tracks that display the producer's trademarks (Phoenix Entertainment Partners LLC v. Kevin Burke, No. 17-13043, 11th Cir.).



Former Jack In The Box Franchisee Appeals Contract Trademark Judgment
SAN FRANCISCO - Arguing that disputed facts exist on a purported cure agreement and the amounts owed to franchisor Jack in the Box Inc. (JIB), a terminated franchisee tells the Ninth Circuit U.S. Court of Appeals in a Dec. 19 reply brief that a trial court wrongly issued judgment against it on trademark infringement and contract claims (Jack in the Box Inc. v. Deepak Mehta, et al., No. 17-15336, 9th Cir.).



Parties Dispute Validity Of Sloan-Kettering Immunotherapy Patent
WASHINGTON, D.C. - In a Dec. 15 response brief, a patent challenger tells the Federal Circuit U.S. Court of Appeals that the Patent Trial and Appeal Board erred in finding no motivation to combine various prior art to arrive at an invention claiming chimeric antigen receptor (CAR) immunotherapy (Kite Pharma Inc. v. Sloan-Kettering Institute for Cancer Research, No. 17-1647, Fed. Cir.).



Photographer, Publisher Debate Copyright Pleadings Standard In 2nd Circuit
NEW YORK - With a Feb. 2 oral argument date approaching, the Second Circuit U.S. Court of Appeals has been fully briefed by a photographer who alleges that a license to use his copyrighted pictures was exceeded and a publisher that says the infringement claim against it was properly dismissed for failure to plead with specificity (Michael Yamashita, et al. v. Scholastic Inc., No. 17-1957, 2nd Cir.).



Board Erred In Deeming Technology Anticipated, Patent Owner Says
WASHINGTON, D.C. - The Federal Circuit U.S. Court of Appeals on Jan. 8 will hold oral arguments in a dispute over a September 2016 ruling by the Patent Trial and Appeal Board that rendered various claims of an OpenTV Inc. patent anticipated by a European patent application (OpenTV Inc. v. Joseph A. Matal, No. 17-1250, Fed. Cir.).