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LexisNexis® Mealey's™ Intellectual Property Legal News



Headline Intellectual Property Legal News from LexisNexis®



 



Constitutionality Of Inter Partes Review Procedure Debated By Supreme Court
WASHINGTON, D.C. - In a case that could upend the landscape for patent litigants globally, the U.S. Supreme Court heard oral arguments Nov. 27 in a dispute over the constitutionality of inter partes review (IPR) proceedings by the U.S. Patent and Trademark Office (PTO's) Patent Trial and Appeal Board (Oil States Energy Services LLC v. Greene's Energy Group LLC, No. 16-712, U.S. Sup.).



Supreme Court Hears Arguments In Dispute Over Scope Of Inter Partes Review
WASHINGTON, D.C. - Once the Patent Trial and Appeal Board agrees to institute inter partes review (IPR), it must address in its final written decision all claims challenged in the underlying petition, an attorney for software developer SAS Institute Inc. told the U.S. Supreme Court Nov. 27 during oral arguments (SAS Institute Inc. v. Joseph Matal, et al., No. 16-969, U.S. Sup.).



Federal Circuit Affirms Delayed Motion To Amend Dooms Patent Complaint
WASHINGTON, D.C. - A Florida federal judge's decision to dismiss a patent infringement complaint without prejudice following a plaintiff's delayed efforts to add a co-inventor was upheld by the Federal Circuit U.S. Court of Appeals on Nov. 17 (Cobra International Inc. v. BCNY International Inc., et al., Nos. 16-2103, -2173, -2635, Fed. Cir., 2017 U.S. App. LEXIS 23133).



Federal Circuit: Patent Board Properly Rejected Application As Anticipated
WASHINGTON, D.C. - The Federal Circuit U.S. Court of Appeals on Nov. 17 turned away an inventor's challenge to a decision by the Patent Trial and Appeal Board that rejected - as anticipated - various claims of a patent application (In re: C. Douglass Thomas, No. 17-1100, Fed. Cir., 2017 U.S. App. LEXIS 23135).



Federal Circuit Remands Indefiniteness Holding By Delaware Federal Judge
WASHINGTON, D.C. - A judgment of patent invalidity based upon findings that certain language in a patented catalytic conversion system is indefinite was reversed Nov. 20 by the Federal Circuit U.S. Court of Appeals (BASF Corporation v. Johnson Matthey Inc., No. 16-1770, Fed. Cir.).



Delaware Federal Magistrate Judge: Don't Dismiss Patent Case Against WhatsApp
WILMINGTON, Del. - A Delaware federal magistrate judge on Nov. 20 recommended that allegations that WhatsApp Inc. infringed two electronic messaging patents should proceed, rejecting a request for dismissal on grounds of patent ineligibility (TriPlay Inc. v. WhatsApp Inc., No. 13-1703, D. Del., 2017 U.S. Dist. LEXIS 191330).



Federal Circuit Vacates Relief, Orders New Trial On Patent Damages
WASHINGTON, D.C. - Although affirming a California federal judge's determination that various claims of a capacitor patent are not indefinite under Section 112 of the Patent Act, 35 U.S.C. 112, the Federal Circuit U.S. Court of Appeals on Nov. 21 reversed an award of lost profits and grant of permanent injunctive relief in the case (Presidio Components Inc. v. American Technical Ceramics Corp., Nos. 16-2607, -2650, Fed. Cir.).



Federal Circuit Sides With Apple, Affirms Patent Claim Construction
WASHINGTON, D.C. - The Federal Circuit U.S. Court of Appeals on Nov. 22 upheld the claim construction of various disputed terms proffered by a California federal judge in a win for Apple Inc. (Rembrandt Patent Innovations LLC, et al. v. Apple Inc., No. 16-2324, Fed. Cir.).



Hearing Held On Tribal Sovereign Immunity, Inter Partes Review
WASHINGTON, D.C. - The House Judiciary Subcommittee on Courts, Intellectual Property and the Internet convened Nov. 7 to discuss the recent trend of private companies entering into intellectual property agreements with Native American tribes to stave off inter partes review (IPR) challenges before the Patent Trial and Appeal Board by invoking the doctrine of tribal sovereign immunity.



Microsoft Seeks Inter Partes Review Of Remote Control Zoom Patent
ALEXANDRIA, Va. - In a Nov. 17 petition for inter partes review (IPR) by the Patent Trial and Appeal Board, Microsoft Corp. challenged the patentability of seven claims of a patented remote control with an auto-zoom feature, which allows for easier button selection on a touch screen (Microsoft Corp. v. Koninklijke Philips N.V., No. IPR2018-00185, PTAB).



Patent Board Sides With Petitioner, Deems 10 Claims Unpatentable
ALEXANDRIA, Va. - A challenge by EMC Corp. of a multiprocessor system patent was successful on Nov. 24, when the Patent Trial and Appeal Board agreed in a final written decision that 10 claims would have been obvious to a person of skill in the art (EMC Corporation v. Intellectual Ventures II LLC, No. IPR2016-01106, PTAB).



Pfizer Immunogenic Patent Targeted In New Petition For Inter Partes Review
ALEXANDRIA, Va. - A patented immunogenic composition would have been obvious to a person of skill in the art, Sanofi Pasteur Inc. and SK Chemicals Co. Ltd. (Sanofi, collectively) assert in a Nov. 20 petition for inter partes review by the Patent Trial and Appeal Board (Sanofi Pasteur Inc. and SK Chemicals Co. Ltd. v. Pfizer Inc., No. IPR2018-0187, PTAB).



In Final Written Decision, Patent Board Sides With Patent Owners
ALEXANDRIA, Va. - Allegations that 19 claims of a patent covering "injectable suspensions having improved injectability" would have been obvious to a person of skill in the art were rejected Nov. 28 by the Patent Trial and Appeal Board (Luye Pharma Group Ltd., et al. v. Alkermes Pharma Ireland Ltd., et al., No. IPR2016-01096, PTAB).



New Petition For Inter Partes Review Targets Seat Reservation Patent
ALEXANDRIA, Va. - The Patent Trial and Appeal Board was told Nov. 28 in a new petition for inter partes review (IPR) that a patented seat reservation method would have been obvious to a person of ordinary skill in the art (TicketNetwork Inc. v. CEATS Inc., No. IPR2018-00245, PTAB).



9th Circuit Affirms: Use Of 'Empire' Mark Protected By 1st Amendment
SAN FRANCISCO - Two broadcasters were properly granted a summary judgment that their use of the name "Empire" is protected under the First Amendment to the U.S. Constitution, the Ninth Circuit U.S. Court of Appeals ruled Nov. 16 (Twentieth Century Fox Television, et al. v. Empire Distribution Inc., No. 16-55577, 9th Cir.).



Federal Circuit Affirms Denial Of Registrations For 'Magnesita' Trademarks
WASHINGTON, D.C. - A decision by the Trademark Trial and Appeal Board to deny two trademark registration applications for "Magnesita" on grounds that the marks are generic for refractory products was not erroneous, the Federal Circuit U.S. Court of Appeals concluded Nov. 27 (In re: Magnesita Refractories Company, No. 16-2345, Fed. Cir., 2017 U.S. App. LEXIS 23845).



Abandonment Of Mark Not Proven, Washington Federal Judge Rules
SEATTLE - Although denying a trademark infringement plaintiff summary judgment, a Washington federal judge on Nov. 29 rejected assertions by defendants in the case that they "strictly proved" trademark abandonment (Kische USA LLC v. Ali Simsek, et al., No. 16-168, W.D. Wash., 2017 U.S. Dist. LEXIS 196191).



California Magistrate Judge Dismisses Trademark Claim, Trade Libel Claim Survives
SAN FRANCISCO - A dispute between two beauty product suppliers will proceed in California federal court but without a claim for trademark infringement against an individual defendant, a federal magistrate judge ruled Nov. 27 (BioZone Laboratories Inc. v. Next Step Laboratories Corporation and Richard Rigg, No. 17-2768, N.D. Calif., 2017 U.S. Dist. LEXIS 194454).



Copyright, Trademark Claims Survive Dismissal Request In Illinois Court
CHICAGO - Efforts by two defendants to obtain dismissal of allegations they committed copyright and trademark infringement by copying and exhibiting photographs by the late Vivian Maier were unsuccessful on Nov. 20, when an Illinois federal judge deemed claims by a public administrator appointed to Maier's estate upon her death in 2009 adequately pleaded (The Estate of Vivian Maier v. Jeffrey Goldstein, et al., No. 17-2951, N.D. Ill., 2017 U.S. Dist. LEXIS 191294).



On Remand, Texas Federal Judge Won't Dismiss Copyright Infringement Claim
HOUSTON - In a Nov. 21 ruling, a Texas federal judge interpreted the phrase "lawfully made under this title" as it appears in Section 109 of the Copyright Act, 17 U.S.C. 109, to mean "that a copy is lawful if it was made in the United States in compliance with Title 17 or in a foreign country in a manner that would comply with Title 17 if United States copyright law applied" (Geophysical Services Inc. v. TGS Nopec-Geophysical Services, No. 14-1368, S.D. Texas, 2017 U.S. Dist. LEXIS 192803).



Company's Claims In Trade Secrets, Copyright Suit Survive Motion To Dismiss
SHERMAN, Texas - A company has properly stated a claim for relief in seeking declaratory relief against several former employees and its direct competitor for alleged trade secret misappropriation and patent and copyright infringement, among other things, and its claims under the Copyright Act provide a federal district court with federal question jurisdiction, a federal judge in Texas ruled Nov. 20 in denying the defendants' motion to dismiss (Performance Pulsation Control Inc. v. Sigma Drilling Technologies LLC, et al., No. 17-0450, E.D. Texas, 2017 U.S. Dist. LEXIS 191530).



Furniture Maker Seeks High Court Review Of Tea Rose- Rectanus Doctrine Ruling
WASHINGTON, D.C. - A Ninth Circuit U.S. Court of Appeals ruling deepened a circuit split on the interpretation of good faith adoption of a regional, common-law trademark under the Tea Rose-Rectanus doctrine, a furniture manufacturer argues in a Nov. 13 petition for certiorari, asking the U.S. Supreme Court to provide guidance on the matter (Omnia Italian Design Inc. v. Stone Creek Inc., No. 17-731, U.S. Sup.).



Fastener Maker Tells 8th Circuit Fraud, Mark Lapse Defeat Infringement Claims
ST. LOUIS - In a Nov. 20 appellee brief, the defendant in a long-running dispute over the "Sealtight" and "Sealtite" trademarks asks the Eighth Circuit U.S. Court of Appeals to affirm a trial court's judgment in its favor, citing its opponent's fraud on the U.S. Patent and Trademark Office (PTO), as well as a lapse in the plaintiff's registration for its purportedly incontestable trademark (B&B Hardware Inc. v. Hargis Industries Inc., No. 17-1570 and 17-1755, 8th Cir.).



Tech Firm To High Court: Federal Circuit Misapplied Alice In Apple ITunes Suit
WASHINGTON, D.C. - Seeking review of a Federal Circuit U.S. Court of Appeals ruling that reversed a judgment ruling in its favor, a Texas tech firm tells the U.S. Supreme Court in a Nov. 9 petition for certiorari that a panel incorrectly applied the patent eligibility test of Alice Corp. v. CLS Bank Int'l in deeming its patents abstract and not patent-eligible (Smartflash LLC, et al. v. Apple Inc., No. 17-697, U.S. Sup.).



Google Tells Federal Circuit Patent Claims Erroneously Confirmed
WASHINGTON, D.C. - The Federal Circuit U.S. Court of Appeals on Dec. 4 will hear oral arguments in an appeal by Google Inc. of a final written decision by the Patent Trial and Appeal Board that confirmed that various claims of four digital identification patents are neither obvious nor anticipated (Google Inc. v. Network-1 Technologies Inc., No. 16-2509, Fed. Cir.).



Parties Dispute Accessibility Of Prior Art Reference Before Federal Circuit
WASHINGTON, D.C. - The U.S. Patent and Trademark Office (PTO) erred in relying on a prior art product guide in rejecting as anticipated and obvious various claims of three patents, the patent owner recently told the Federal Circuit U.S. Court of Appeals (C.R. Bard Inc. v. AngioDynamics Inc., No. 17-1851, Fed. Cir.).



Bill Of Costs In Patent Dispute Debated In Briefs Before Federal Circuit
WASHINGTON, D.C. - An Illinois federal judge's decision to award General Electric Co. (GE) $94,813.95 in costs in connection with its successful defense of patent infringement allegations was erroneous, the patent owner recently told the Federal Circuit U.S. Court of Appeals (Henryk Olesky v. General Electric Company, No. 17-2225, Fed. Cir.).



Ownership Of 1973 Song's Copyrights Debated In 2nd Circuit Briefs
NEW YORK - In briefs filed with the Second Circuit U.S. Court of Appeals, a rhythm and blues band and other parties connected with a 1973 song they recorded, spar over ownership of the song's copyrights, notably related to recent songs that sampled the old recording (John Wilson, et al. v. Dynatone Publishing Co., et al., No. 17-1549, 2nd Cir.).



TC Heartland Represents Change Of Law, Federal Circuit Concludes
WASHINGTON, D.C. - In granting a petition for mandamus by Micron Technology Inc. on Nov. 14, the Federal Circuit U.S. Court of Appeals resolved lingering uncertainty following the May 2017 U.S. Supreme Court ruling in TC Heartland LLC v. Kraft Foods Group Brands LLC, deeming the case an intervening change of law (In re: Micron Technology Inc., No. 17-138, Fed. Cir.).



Supreme Court Denies Certiorari In Apple, Samsung Patent Dispute
WASHINGTON, D.C. - In its Nov. 6 order list, the U.S. Supreme Court heeded the advice of the U.S. government and denied certiorari in the longstanding dispute between Samsung Electronics Co. Ltd. and Apple Inc. over smartphone technology patents (Samsung Electronics Co. Ltd., et al. v. Apple Inc., No. 16-1102, U.S. Sup.).



Federal Circuit Affirms: Patent Properly Deemed Ineligible By Pennsylvania Judge
WASHINGTON, D.C. - Allegations of infringement were properly dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6), Fed. R. Civ. P. 12(b)(6), because the patent in suit claims ineligible subject matter, the Federal Circuit U.S. Court of Appeals affirmed Nov. 3 (Intellectual Ventures I LLC v. Erie Indemnity Company, et al., No. 17-1147, Fed. Cir., 2017 U.S. App. LEXIS 22060).



Patent Board Finding Of Obviousness Partly Reversed By Federal Circuit
WASHINGTON, D.C. - Several claims of a USB rotary cover patent were erroneously deemed unpatentable as obvious by the Patent Trial and Appeal Board, the Federal Circuit U.S. Court of Appeals ruled Nov. 6 in a partial reversal (Pavo Solutions LLC v. Kingston Technology Co. Inc., No. 16-2209, Fed. Cir.).



Delaware Federal Magistrate Judge: Dismiss Patent Case Against Home Depot
WILMINGTON, Del. - Allegations that Home Depot U.S.A. Inc. directly infringed various method claims of two patents by providing installation guides and videos on its website for accused luxury vinyl tile and wood plastic composite flooring products should be dismissed, a Delaware federal magistrate judge ruled Nov. 9 (Valinge Innovation AB v. Halstead New England Corporation, et al., No. 16-1082, D. Del., 2017 U.S. Dist. LEXIS 185826).



Judge Clarifies Fact, Opinion Work Product In Patent Antitrust Suit
SAN JOSE, Calif. - Responding to discovery disputes by the parties in a lawsuit alleging monopolization and false advertising of patents for specialty medical software, a California federal judge on Nov. 6 clarified a previous order compelling production, differentiating between fact and opinion work product in the context of waiver of privilege (Cave Consulting Group Inc. v. OptumInsight Inc., No. 3:15-cv-03424, N.D. Calif, 2017 U.S. Dist. LEXIS 183672).



Federal Circuit Affirms: Biologics For Neutropenia Treatment Do Not Infringe
WASHINGTON, D.C. - A Florida federal judge did not err in rejecting allegations by Amgen Inc. and Amgen Manufacturing Limited (Amgen, collectively) that proposed biosimilar versions of two Amgen pegfilgrastim and filgastim products would infringe a patented method of refolding recombinant proteins expressed in non-mammalian cells, the Federal Circuit U.S. Court of Appeals ruled Nov. 13 (Amgen Inc., et al. v. Apotex Inc., et al., No. 17-1010, Fed. Cir., 2017 U.S. App. LEXIS 22638).



On Remand From Supreme Court, Federal Circuit Affirms Noninfringement Judgment
WASHINGTON, D.C. - In a reversal of its previous findings, the Federal Circuit U.S. Court of Appeals on Nov. 13 upheld a Wisconsin federal judge's decision to deny a new trial on damages and infringement of various genetic testing kit patents (Promega Corporation v. Life Technologies Corp., No. 13-1011, Fed. Cir., 2017 U.S. App. LEXIS 22635).



Indiana Federal Judge Denies Relief In Dispute Over Wine Aeration Patent
SOUTH BEND, Ind. - Efforts by a patent owner to obtain a preliminary injunction barring a competitor from selling a similar device designed to aerate and dispense wine were unsuccessful on Nov. 13, when an Indiana federal judge questioned the likelihood that the lawsuit will succeed (MercAsia USA Ltd. v. 3BTech Inc., et al., No. 17-718, S.D. Ind., 2017 U.S. Dist. LEXIS 187000).



5th Circuit Affirms: State Law Claim Preempted By Copyright, Patent Statutes
NEW ORLEANS - An allegation of unfair competition by misappropriation under Texas law was properly rejected by a Texas federal judge on the basis of federal preemption under the Copyright Act, 17 U.S.C. 101 et seq., and Patent Act, 35 U.S.C. 1 et seq., the Fifth Circuit U.S. Court of Appeals ruled Nov. 14 (Motion Medical Technologies LLC, et al. v. ThermoTek Inc., No. 16-11381, 5th Cir., 2017 U.S. App. LEXIS 22826).



In Final Decision, Patent Board Partly Sides With Justice Department
ALEXANDRIA, Va. - A challenge by the U.S. States Department of Justice to various claims of a security alarm system patent was partly successful Nov. 10, when the Patent Trial and Appeal Board agreed that 18 claims are unpatentable as anticipated (U.S. Department of Justice v. Discovery Patents LLC, No. IPR2016-01041, PTAB).



Petitioner Seeks Rehearing Of Patent Board Denial Of Inter Partes Review
ALEXANDRIA, Va. - R.J. Reynolds Vapor Co. on Nov. 6 requested rehearing of an Oct. 23 ruling by the Patent Trial and Appeal Board that partly denied institution of inter partes review (IPR) of an electronic cigarette patent (R.J. Reynolds Vapor Co. v. Fontem Holdings 1 BV, No. IPR2017-01120, PTAB).



Implantable Medical Device Patent Is Obvious, Petitioner Tells Board
ALEXANDRIA, Va. - In a Nov. 3 petition for inter partes review (IPR), a medical device company took aim at a patented, implantable medical device with rechargeable, transcutaneous battery, on grounds that the invention would have been obvious to a person of skill in the art (Nevro Corp. v. Boston Scientific Neuromodulation Corp., No. IPR2018-00141, PTAB).



Caltech Urges Patent Board To Reconsider Grant Of Apple Motion
ALEXANDRIA, Va. - An October decision by the Patent Trial and Appeal Board to grant Apple Inc.'s motion to file supplemental information in its challenge to a California Institute of Technology (Caltech) patent is "deeply prejudicial in both its timing and its scope," the university told the board on Nov. 13 (Apple Inc. v. California Institute of Technology, No. IPR2017-00728, PTAB).



Rehearing By Patent Board Sought, Reliance On General Plastic Factors Disputed
ALEXANDRIA, Va. - A recent ruling by the Patent Trial and Appeal Board that established a series of factors to consider when multiple petitions for inter partes review (IPR) of one patent are filed by one party should not have been relied on by the board in turning away a petition for IPR in October, the petitioner asserts in a Nov. 13 request for rehearing (NetApp Inc. v. Realtime Data LLC, No. IPR2017-01196, PTAB).



4th Circuit Affirms: Computer Fraud Claims Preempted By Copyright Act
RICHMOND, Va. - Allegations that the creator of a cloud computing environment committed computer fraud when it copied and transferred data to former employees of a company it once contracted with are preempted by the Copyright Act, the Fourth Circuit U.S. Court of Appeals ruled Nov. 13 (OpenRisk LLC v. MicroStrategy Services Corp., No. 16-1852, 4th Cir., 2017 U.S. App. LEXIS 22736).



Justices Will Not Review Role Of Expert Testimony In Copyright Infringement Cases
WASHINGTON, D.C. - The U.S. Supreme Court on Nov. 6 denied a petition for a writ of certiorari in a copyright infringement action over the popular John Madden Football series computer game in which the court was asked to determine the standard for the admissibility of expert testimony in copyright infringement disputes involving computer codes (Robin Antonick v. Electronic Arts Inc., No. 17-168, U.S. Sup.).



Copyright Infringement, Trade Secrets Claims Dismissed In Misappropriation Suit
TRENTON, N.J. - An engineering firm in a misappropriation of trade secrets lawsuit has failed to show that it had a valid copyright registration or had applied for a copyright it alleges two former employees misappropriated after becoming employed by the firm's competitor, a federal judge in New Jersey ruled Nov. 6 in dismissing the firm's complaint without prejudice (Kipcon Inc. v. D.W. Smith Associates LLC, No. 17-3190, D. N.J., 2017 U.S. Dist. LEXIS 183576).



2nd Circuit Affirms Rejection Of DMCA Claim, Denial Of Attorney Fees
NEW YORK - A New York federal judge did not err in rejecting allegations that a licensee violated the Digital Millennium Copyright Act (DMCA), 17 U.S.C. 1201(a), when it modified security measures to prevent two software programs from self-enforcing certain licensing restrictions because the plaintiffs failed to demonstrate the copyrightability of the underlying programs, the Second Circuit U.S. Court of Appeals ruled Nov. 8 (Dynamic Concepts Inc. and Point 4 Data Corp. v. Tri-State Surgical Supply, et al., Nos. 15-0563, -3212, 2nd Cir., 2017 U.S. App. LEXIS 22348).



BitTorrent Users Severed, Dismissed In 'Mechanic: Resurrection' Copyright Suit
LAS VEGAS - Adopting a magistrate's recommendation, a California federal judge on Nov. 7 severed all but one defendant accused of infringing a movie's copyright via online file sharing, with the judge deeming the defendants improperly joined (ME2 Productions Inc. v. Mikiyas Bayu, et al., No. 2:17-cv-00724, D. Nev., 2017 U.S. Dist. LEXIS 184021).



Architectural Expert's Testimony Restricted In Home Design Copyright Case
TOLEDO, Ohio - An architectural expert in a home design copyright infringement action cannot opine that a company's designs do not merit copyright protection because the opinion is an impermissible legal conclusion, though the expert can testify about the similarities and differences between the parties' designs, an Ohio federal judge held Nov. 14 (Design Basics LLC v. Forrester Wehrle Homes, Inc., et al., No. 3:15-cv-00666, N.D. Ohio, 2017 U.S. Dist. LEXIS 188005).



Refusal To Register 'Sensi' Trademark Upheld By Federal Circuit
WASHINGTON, D.C. - Findings by the Trademark Trial and Appeal Board that the "Sensi" trademark in Class 5 of the Trademark Classifications for Goods and Services for diapers would likely cause confusion with two previously registered marks for "Sensi-Care" for use in connection with a treatment for diaper rash were not erroneous, the Federal Circuit U.S. Court of Appeals ruled Nov. 13 (In re: P.T. Arista Latindo, No. 17-1292, Fed. Cir., 2017 U.S. App. LEXIS 22637).



2nd Circuit Affirms: Claimed Trade Dress Is Functional, Unprotectable
NEW YORK - A New York federal judge did not err in determining, following a bench trial, that a declaratory judgment plaintiff's bag closure products do not infringe or dilute a competitor's trade dress, the Second Circuit U.S. Court of Appeals concluded Nov. 2 (Schutte Bagclosures Inc. and Schutte Bagclosures B.V. v. Kiwk Lok Corporation, No. 16-2767, 2nd Cir., 2017 U.S. App. LEXIS 21864).



Federal Circuit: Fees Due On Trade Dress Claims, Not Copyright, Patent Claims
WASHINGTON, D.C. - A Texas federal judge's denial of a motion to dismiss a declaratory judgment action relating to patent, copyright and trade dress protection for fiberglass utility bodies for use with trucks was affirmed Nov. 7 by the Federal Circuit U.S. Court of Appeals, which agreed that an actual case or controversy existed between the parties (Industrial Models Inc. v. SNF Inc., et al., Nos 17-1172, -1173, Fed. Cir.).



75 Website Operators Enjoined From Offering Counterfeit Gucci Items
FORT LAUDERDALE, Fla. - A Florida federal judge on Nov. 8 granted Gucci America Inc.'s motion for a preliminary injunction against 75 website operators that the plaintiff said were selling counterfeit goods bearing the "Gucci" mark, finding Gucci "very likely" to succeed in its trademark infringement claims (Gucci America Inc. v. 532buy.com, et al., No.0:17-cv-62068, S.D. Fla.).



Tech Firm To High Court: Federal Circuit Can Review PTAB Patent Determinations
WASHINGTON, D.C. - Opposing Google LLC's petition for certiorari in a Nov. 9 brief, a mobile technology firm tells the U.S. Supreme Court that, per the America Invents Act (AIA), the Federal Circuit U.S. Court of Appeals has authority to review and reverse patent ineligibility determinations by the Patent Trial and Appeal Board (PTAB) made during a covered business method (CBM) review (Google LLC v. Unwired Planet LLC., No. 17-357, U.S. Sup.).



Federal Circuit Hears Oral Argument In Dispute Over Gattex Patent
WASHINGTON, D.C. - The owner of a patent covering the short bowel syndrome (SBS) drug Gattex argued before the Federal Circuit U.S. Court of Appeals on Nov. 9 that the Patent Trial and Appeal Board erred in deeming various claims obvious under Section 103 of the Patent Act, 35 U.S.C. 103 (In re: NPS Pharmaceuticals Inc., No. 17-1392, Fed. Cir.).



Proper Adjustment Of Patent Term To Be Decided By Federal Circuit
WASHINGTON, D.C. - The Federal Circuit U.S. Court of Appeals on Dec. 9 will hear oral arguments in a case that seeks to clarify the extent to which the U.S. Patent and Trademark Office (PTO) is permitted, under the Patent Term Adjustment (PTA) statute, 35 U.S.C. 154(b), to reduce an applicant's PTA (Supernus Pharmaceuticals Inc., et al. v. U.S. Patent and Trademark Office, No. 17-1357, Fed. Cir.).



Patent Board Priority Determination Disputed In Appeal To Federal Circuit
WASHINGTON, D.C. - A decision by the Patent Trial and Appeal Board that granted priority was "logically inconsistent" with other findings by the board that the reference that triggered priority was not anticipatory of an interfering patent, the party asserting anticipation recently told the Federal Circuit U.S. Court of Appeals (Otonomy Inc. v. Auris Medical AG, Nos. 17-1850, -1880, Fed. Cir.).



Distinctiveness, Infringement Of 'Sturgis' Trademarks Argued In 8th Circuit
ST. LOUIS - A South Dakota organization affiliated with the Sturgis Motorcycle Rally tells the Eighth Circuit U.S. Court of Appeals in a Nov. 6 brief that a jury correctly found its "Sturgis" trademarks to be valid and infringed by the sale of unlicensed Sturgis items. However, the plaintiff appeals a post-verdict ruling that vacated a damages award for the infringement (Sturgis Motorcycle Rally Inc. v. Rushmore Photo & Gifts Inc., et al., Nos. 17-1762, -1869, -2712 and -2731, 8th Cir.).



Jack In The Box Says Terminated Agreement Ended Franchisee's Trademark Rights
SAN FRANCISCO - In a Nov. 6 brief, Jack in the Box Inc. asks the Ninth Circuit U.S. Court of Appeals to affirm a trial court's finding that a former franchisee engaged in infringement by continuing to use the "Jack in the Box" trademarks after its franchise agreement was terminated for contractual breaches (Jack in the Box Inc. v. Deepak Mehta, et al., No. 17-15336, 9th Cir.).



Singapore Jurisdiction Debated In Appeal Of Hotel Photos Copyright Suit
NEW YORK - In a Nov. 1 reply brief, an intellectual property holding company tells the Second Circuit U.S. Court of Appeals that a trial court erred in dismissing its copyright infringement claims against a Singapore firm for forum non conveniens, arguing that the defendant's business ties in the United States, as well as its acts of infringement, adequately established New York jurisdiction (The Wave Studio LLC v. General Hotel Management Ltd., et al., No. 17-1018, 2nd Cir.).



Adult Site Operator Tells High Court Usenet Provider Benefitted From Infringement
WASHINGTON, D.C. - The Ninth Circuit U.S. Court of Appeals mistakenly held that a usenet service provider did not profit from the millions of unauthorized copyrighted images on its fee-based websites, an adult website operator argues in a Nov. 8 reply brief to the U.S. Supreme Court, seeking a writ of certiorari to resolve what it says is a circuit split over a copyright holder's duty to establish an infringer's profits directly attributable to its works (Perfect 10 Inc. v. Giganews Inc., et al, No. 17-320, U.S. Sup.).



California Federal Judge Orders New Damages Trial In Apple, Samsung Case
SAN FRANCISCO - In an Oct. 22 ruling, U.S. Judge Lucy Koh of the Northern District of California rejected claims by Apple Inc. that the burden of persuasion in identifying the relevant article of manufacture under Section 289 of the Patent Act rests with a design patent infringement defendant (Apple Inc. v. Samsung Electronics Co. Ltd., et al., No. 5:11-cv-01846, N.D. Calif.).



Federal Circuit Affirms: Mail Barcode Patents Claim Ineligible Matter
WASHINGTON, D.C. - A California federal judge did not err in dismissing an infringement action because the patents in suit are directed to patent-ineligible subject matter under Section 101 of the Patent Act, 35 U.S.C. 101, the Federal Circuit U.S. Court of Appeals ruled Oct. 16 (Secured Mail Solutions LLC v. Universal Wilde Inc., No. 16-1728, Fed. Cir.).



Divided Federal Circuit Upholds Patent Ineligibility Findings
WASHINGTON, D.C. - An Illinois federal judge did not err in declaring four patents ineligible under Section 101 of the Patent Act, 35 U.S.C. 101, because the invention is directed to the abstract idea of paying for public transportation with a credit card and lacks a sufficiently inventive concept, the Federal Circuit U.S. Court of Appeals ruled Oct. 18 (Smart Systems Innovations LLC v. Chicago Transit Authority, et al., No. 16-1233, Fed. Cir., 2017 U.S. App. LEXIS 20333).



Federal Circuit Affirms: Data Streaming Patents Ineligible For Protection
WASHINGTON, D.C. - A Delaware federal judge did not err in deeming a series of patents stemming from continuation applications ineligible for protection under Section 101 of the Patent Act, 35 U.S.C. 101, because the patents claim the abstract idea of sending and monitoring the delivery of audio/visual information, the Federal Circuit U.S. Court of Appeals ruled Nov. 1 (Two-Way Media Ltd. v. Comcast Cable Communications LLC, et al., No. 16-2531, Fed. Cir., 2017 U.S. App. LEXIS 21706).



Exclusion Order Barring Importation Of Infringing Products Affirmed
WASHINGTON, D.C. - A limited exclusion order entered by the International Trade Commission (ITC) against Arista Networks Inc. based upon findings that Arista infringed three Cisco Systems Inc. patents was upheld Oct. 18 by the Federal Circuit U.S. Court of Appeals, which found no error in the ITC's determination of infringement (Arista Networks Inc. v. International Trade Commission, No. 16-2563, Fed. Cir.).



Washington Federal Court Will Maintain Jurisdiction Over Inventor's UCL Claim
SEATTLE - Even though a patent infringement case was recently transferred from a California federal court, a Washington federal judge on Oct. 17 found that he would maintain jurisdiction over an inventor's claim for violation of California's unfair competition law (UCL) and refused to dismiss the claim (Elliot Kremerman v. Open Source Steel, LLC, et al., No. 2:17-cv-953, W.D. Wash., 2017 U.S. Dist. LEXIS 171735).



Federal Circuit Affirms Own Member, Sides With Google In Patent Row
WASHINGTON, D.C. - Judge Timothy B. Dyk of the Federal Circuit U.S. Court of Appeals did not err in denying a motion for judgment as a matter of law (JMOL) by a patent owner following an adverse jury trial in the U.S. District Court for the District of Delaware, the Federal Circuit ruled Oct. 20 (Art+Com Innovationpool GmbH v. Google Inc., No. 17-1016, Fed. Cir.).



Federal Circuit Reverses, Remands Invalidity Holding In NuvaRing Patent Case
WASHINGTON, D.C. - A Delaware federal judge's determination that two claims of a patented contraceptive device was erroneous because a person of ordinary skill would not have known to modify prior art to arrive at the claimed invention, the Federal Circuit U.S. Court of Appeals ruled Oct. 19 (Merck Sharp & Dohme BV v. Warner Chilcott Company LLC, No. 16-2583, Fed. Cir., 2017 U.S. App. LEXIS 20441).



Federal Circuit Affirms: Claims Covering Invanz Antibiotic Are Invalid
WASHINGTON, D.C. - A divided Federal Circuit U.S. Court of Appeals on Oct. 26 upheld a Delaware federal judge's determination that 14 claims of a patented antibiotic are invalid, but a dissenting judge argued that the Federal Circuit has led district courts "into error" by issuing "inconsistent treatment of the procedures and burdens in applying the evidentiary factors of obviousness" (Merck Sharp & Dohme Corp. v. Hospira Inc., No. 17-1115, Fed. Cir., 2017 U.S. App. LEXIS 21201).



Federal Circuit Affirms Patent Board Obviousness, Anticipation Findings
WASHINGTON, D.C. - A final written decision by the Patent Trial and Appeal Board that 20 claims of a software registration system patent are anticipated and rendered obvious by prior art was not erroneous, the Federal Circuit U.S. Court of Appeals ruled Oct. 23 (Uniloc USA Inc., et al. v. Sega of America Inc., et al., No. 16-2000, Fed. Cir., 2017 U.S. App. LEXIS 20704).



Federal Circuit Reverses Indefiniteness Holding, Rules Against Microsoft
WASHINGTON, D.C. - Findings by a Minnesota federal judge that five claims of two patents directed to data mining are indefinite were erroneous, the Federal Circuit U.S. Court of Appeals concluded Oct. 30 (MasterMine Software Inc. v. Microsoft Corp., No. 16-2465, Fed. Cir., 2017 U.S. App. LEXIS 21479).



Arbitrability Of Trade Secrets Claims For Arbitrator To Decide, Judge Rules
FORT LAUDERDALE, Fla. - A federal judge in Florida on Oct. 12 granted in part a motion to dismiss filed by defendants in a patent infringement and misappropriation of trade secrets lawsuit, ruling that whether a company's claims against the defendants are subject to several arbitration provisions is for an arbitrator to decide (CheyTac USA LLC v. NextGen Tactical LLC, No. 17-60925, S.D. Fla., 2017 U.S. Dist. LEXIS 169850).



Tribal Sovereign Immunity Defense For Patent Review Questioned By Judge
MARSHALL, Texas - Out of an abundance of caution, and with "serious concerns" about a drugmaker's attempt at shielding its patents from review by using an Indian tribe's sovereign immunity, a Texas federal judge on Oct. 16 joined the tribe as a plaintiff in the drugmaker's infringement lawsuit (Allergan, Inc. v. Teva Pharmaceuticals USA, Inc., et al., No. 2:15-cv-1455, E.D. Texas, 2017 U.S. Dist. LEXIS 170825).



Missouri Federal Judge Transfers Patent Dispute To Minnesota Court
ST. LOUIS - Amid findings that neither a design patent owner nor infringement defendant has a "regular and established place of business" in the Eastern District of Missouri under the test established in In re Cray Inc., 871 F.3d 1355, 1360 (Fed. Cir. 2017), a federal judge on Oct. 27 ordered transfer of the case to the District of Minnesota (2017) (Post Consumer Brands LLC v. General Mills Inc., et al., No. 17-2471, E.D. Mo., 2017 U.S. Dist. LEXIS 178307).



After Receiving Patents, Tribe Files Infringement Action Against Amazon
ALEXANDRIA, Va. - A Native American tribe filed a 12-count patent infringement lawsuit Oct. 18 against Amazon.com Inc. in Virginia federal court relating to six patents that had been transferred to the tribe by a computer technology company two months earlier (SRC Labs, LLC, et al. v. Amazon Web Services, Inc., et al., No. 2:17-cv-00547, E.D. Va.).



Music Choice Patent Targeted In New Petition For Inter Partes Review
ALEXANDRIA, Va. - A patented system and method for providing visually interactive complements to audio programming would have been obvious to a person of skill, according to an Oct. 23 petition for inter partes review before the Patent Trial and Appeal Board (Stingray Digital Group Inc. v. Music Choice, No. IPR2018-00114, PTAB).



Patent Board Institutes Review Of Electronic Cigarette Patent
ALEXANDRIA, Va. - In an Oct. 23 ruling, the Patent Trial and Appeal Board announced that it will review the patentability of seven claims of an electronic cigarette patent but denied institution with regard to five others (R.J. Reynolds Vapor Co. v. Fontem Holdings 1 BV, No. IPR2017-01120, PTAB).



Prodrug Patent Singled Out In New Petition For Inter Partes Review
ALEXANDRIA, Va. - A formula for phosphoramidate prodrugs of nucleoside derivatives would have been obvious to a person of ordinary skill, according to an Oct. 26 petition for inter partes review (IPR) filed with the Patent Trial and Appeal Board (Initiative for Medicines, Access & Knowledge Inc. v. Gilead Pharmasset LLC, No. IPR2018-00122, PTAB).



Petition By FanDuel, Draft Kings Instituted By Patent Board
ALEXANDRIA, Va. - A patent that discloses an interactive video system that adjusts game play based upon the skill level of a player will be the subject of an upcoming inter partes review, the Patent Trial and Appeal Board revealed Oct. 18 (FanDuel Inc., et al. v. CG Technology Development LLC, No. IPR2017-00902, PTAB).



Video Surveillance System Patent Is Obvious, Petitioners Tell Board
ALEXANDRIA, Va. - Three petitioners, including Canon Inc., took aim on Oct. 31 at a patented video surveillance system that extracts "primitives" from a video, in a new petition for inter partes review before the Patent Trial and Appeal Board (Axis Communications AB, et al., v. Avigilon Fortress Corporation, No. IPR2018-00138, PTAB).



10th Circuit Upholds Termination Of Trademark License
DENVER - In an Oct. 10 ruling, the 10th Circuit U.S. Court of Appeals found that a Utah federal judge did not err in terminating a trademark license agreement (TLA) and in permanently enjoining a defendant's further use of several disputed marks (Earthgrains Baking Companies Inc. v. Leland Sycamore, No. 15-4145, 10th Cir., 2017 U.S. App. LEXIS 19887).



11th Circuit Upholds Denial Of Injunction In Trademark Case
ATLANTA - A Florida federal judge's decision to deny a preliminary injunction barring an infringement defendant from using the "HealthPrint" trademark was affirmed Oct. 17 by the 11th Circuit U.S. Court of Appeals, which found that evidence of actual confusion is lacking in the case (Superior Consulting Services Inc. v. Shaklee Corporation, No. 17-11210, 11th Cir., 2017 U.S. App. LEXIS 20265).



High Court Won't Hear Suit Over Whether 'Google' Trademark Is Generic
WASHINGTON, D.C. - In its Oct. 16 order list, the U.S. Supreme Court denied a petition for certiorari in which two men asserted that the term "google" has become generic and, thus, is no longer entitled to trademark protection (David Elliott, et al. v. Google Inc., No. 17-258, U.S. Sup.).



Judge Dismisses Franchisor's Trademark Infringement Suit For Lack Of Jurisdiction
DENVER - A Colorado f[ee]ederal judge on Oct. 20 entered final judgment dismissing a franchisor's trademark infringement lawsuit for lack of personal jurisdiction, finding that the defendants' contacts with Colorado only "barely satisfy the minimum contacts standard" and that a majority of the reasonableness factors weigh against the exercise of jurisdiction (Rocky Mountain Chocolate Factory v. Timothy Arellano, et al., No. 17-0582, D. Colo., 2017 U.S. Dist. LEXIS 173159).



6th Circuit Reverses Res Judicata Holding In Trademark Dispute
CINCINNATI - A rejection on summary judgment of a complaint seeking a declaration of trademark invalidity was reversed Oct. 23 by the Sixth Circuit U.S. Court of Appeals, which rejected findings by a Michigan federal judge that the dispute is barred by the doctrine of res judicata (AuSable River Trading Post LLC v. Dovetail Solutions Inc., 2017 U.S. App. LEXIS 20707).



Internet Posting Bans In 'Comic-Con' Trademark Suit Vacated As Prior Restraint
SAN DIEGO - A California federal judge on Oct. 30 vacated previous protective orders preventing the defendant in a dispute over the "Comic-Con" trademark from posting online about the litigation, issuing the order in compliance with a Ninth Circuit U.S. Court of Appeals ruling that deemed the internet bans prior restraint under the First Amendment to the U.S. Constitution, U.S. Const. amend. I (San Diego Comic Convention v. Dan Farr Productions, et al., No. 3:14-cv-01865, S.D. Calif.).



Judge Strikes Response To Audio Parts Seller's Infringement, UCL Claims
SACRAMENTO, Calif. - After finding that the sellers of audio components failed to properly respond to allegations that they infringed on trademarks and violated California's unfair competition law (UCL) asserted by a competitor, a California federal judge on Oct. 31 struck their answer in its entirety with leave to amend (JL Audio Inc. v. Dia Saif, et al., No. 2:16-cv-00377, E.D. Calif., 2017 U.S. Dist. LEXIS 180576).



10th Circuit: Refusal To Allow Amended Copyright Claim Not Erroneous
DENVER - A Utah federal judge's decision to deny The SCO Group Inc. leave to amend its tortious interference complaint against International Business Machines Corp. (IBM) to add a new claim for copyright infringement was affirmed Oct. 30 by the 10th Circuit U.S. Court of Appeals (The SCO Group Inc. v. International Business Machines Corp., No. 16-4040, 10th Cir., 2017 U.S. App. LEXIS 21487).



Hawaii Federal Judge Partly Grants Sanctions In Copyright Case
HONOLULU - Although refusing to dismiss a copyright infringement case outright as a sanction for providing insufficient discovery responses, a Hawaii federal judge on Oct. 17 ordered a plaintiff to supplement the discovery responses, attend a status conference and be deposed, as well as pay all court reporter fees associated with the deposition (Keoni Payton v. Defend Inc., et al., No. 15-238, D. Hawaii, 2017 U.S. Dist. LEXIS 171877).



Company Awarded More Than $6.8M In Damages In Trade Secrets Lawsuit
LOS ANGELES - A defendant in a misappropriation of trade secrets and copyright infringement lawsuit will pay more than $6.8 million in damages on claims that he used his former employer's trade secrets to develop a competing 3-D imaging device for the dental industry, a federal judge in California ruled Oct. 19 in granting the former employer's motion for damages and entry of judgment (Sirona Dental Systems Inc., et al. v. Jian Lu, No. 15-8777, C.D. Calif., 2017 U.S. Dist. LEXIS 174510).



Some Defenses Stricken In Florida Trade Dress, Trademark, Copyright Case
ORLANDO, Fla. - A declaratory judgment defendant and copyright, trademark and trade dress infringement counterclaimant partly prevailed Oct. 18 before a Florida federal magistrate judge, who agreed to strike various affirmative defenses raised in response to the counterclaims (Systematic Home Staging LLC v. MHM Professional Staging LLC, No. 17-1327, M.D. Fla., 2017 U.S. Dist. LEXIS 172036).



Request For Dismissal Of Copyright Claim Denied By California Federal Judge
SAN FRANCISCO - Allegations that a copyright infringement case is time-barred as well as deficient for failure to satisfy the registration requirement of the Copyright Act, 17 U.S.C. 411, were turned away Oct. 18 by a California federal judge (Margaret Eve-Lynne Miyasaki v. Kyna Treacy, No. 12-4427, N.D. Calif., 2017 U.S. Dist. LEXIS 172705).



Plaintiff Pleaded Elements Of Federal Trade Secrets Claim, Federal Judge Rules
CHARLOTTESVILLE, Va. - A federal judge in Virginia on Oct. 16 ruled that the co-owner of a software developer may bring a federal trade secret misappropriation claim against his co-owner, a former employee and others because the plaintiff has sufficiently pleaded the elements of his claim in alleging that the defendants misappropriated software code for two LLCs they stated (Todd Hawkins v. Jonathan B. Fishbeck, et al., No. 17-0032, W.D. Va., 2017 U.S. Dist. LEXIS 170678).



Illinois Federal Judge Awards $650,000 In Copyright, Trademark Case
CHICAGO - A defendant who sold counterfeit "Monster Energy" products online was ordered by an Illinois federal judge on Oct. 23 to pay Monster Energy Co. $650,000 in damages in connection with allegations of copyright and trademark infringement (Monster Energy Company v. Zheng Peng, et al., No. 17-414, N.D. Ill., 2017 U.S. Dist. LEXIS 175287).



Dismissal Of Copyright Claims Upheld By 9th Circuit On Jurisdiction Grounds
SAN FRANCISCO - Although a United Kingdom limited company intentionally copied a competitor's logos for reproduction on its newsletters, the intentionally infringing acts were not expressly aimed at the state of California, the Ninth Circuit U.S. Court of Appeals ruled Nov. 1, affirming dismissal of a copyright infringement action (Axiom Foods Inc., et al. v. Acerchem UK Limited, No. 15-56450, 9th Cir., 2017 U.S. App. LEXIS 21801).



Oil Company Defends Inter Partes Review In Supreme Court Patent Row
WASHINGTON, D.C. - An oil and gas service provider that prevailed in an inter partes review (IPR) proceeding in the U.S. Patent and Trademark Office's (PTO's) Patent Trial and Appeal Board (PTAB), tells the U.S. Supreme Court in an Oct. 23 respondent brief that the process is an agency "error-correction mechanism" that does not deprive any patent litigants of their right to a jury trial under the Seventh Amendment to the U.S. Constitution (Oil States Energy Services LLC v. Greene's Energy Group LLC, No. 16-712, U.S. Sup.).



Samsung Responds To Government Brief In Smartphone Patent Suit
WASHINGTON, D.C. - Samsung Electronics Co. Ltd. filed a supplemental brief in the U.S. Supreme Court on Oct. 17, arguing that a recently filed amicus curiae brief by the U.S. government, which opposes Samsung's petition for certiorari in a patent infringement suit with Apple Inc., fails to address errors made by the Federal Circuit U.S. Court of Appeals (Samsung Electronics Co. Ltd., et al. v. Apple Inc., No. 16-1102, U.S. Sup.).



Inventors Tell Federal Circuit Section 101 Rejection Was Error
WASHINGTON, D.C. - In rejecting two claims in an application to patent a method for quick delivery of home values estimations via computer, the Patent Trial and Appeal Board made "a number of legal mistakes," including "conflating" the two steps for patent eligibility set forth in Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. __ (2014), two inventors tell the Federal Circuit U.S. Court of Appeals in an Oct. 27 reply brief (Mario Villena, et al., v. U.S. Patent and Trademark Office, No. 17-2069, Fed. Cir.).



Parties Brief Federal Circuit In Dispute Over Gene Modification Patent
WASHINGTON, D.C. - In an Oct. 25 appellee brief filed with the Federal Circuit U.S. Court of Appeals, a genomic research center argued that an appeal of a Patent Trial and Appeal Board (PTAB) interference proceeding stemming from technology related to genetic modification should be dismissed for lack of appellate jurisdiction (Regents of the University of California, et al., v. The Broad Institute Inc., et al., No. 17-1907, Fed. Cir.).