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Headline Intellectual Property Legal News from LexisNexis®



 



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.).



Briefs Filed In Patent Dispute Over Plans For Generic Nasal Spray
WASHINGTON, D.C. - The Federal Circuit U.S. Court of Appeals was recently briefed on a case that poses the question of whether prior art taught away from the use of the compound zolmitriptan for nasal administration, as was found by a Delaware federal judge (Impax Laboratories Inc., et al., v. Lannett Holdings Inc., No. 17-2020, Fed. Cir.).



ParkerVision Appeals Patent Board Holding To Federal Circuit
WASHINGTON, D.C. - In an Oct. 20 appellant brief, ParkerVision Inc. urges the Federal Circuit U.S. Court of Appeals to vacate findings by the Patent Trial and Appeal Board that a wireless transmission patent is obvious, arguing that the final written decisions were based on invalidity theories not properly before the board and that ParkerVision was unable to rebut (ParkerVision Inc. v. Qualcomm Inc., No. 17-2012, Fed. Cir.).



Patent Defendant Appeals $147 Million Judgment To Federal Circuit
WASHINGTON, D.C. - A California federal judge erred in enforcing a verdict of infringement with regard to two power chip patents and in later allowing a subsequent jury award of $147 million, a semiconductor company recently told the Federal Circuit U.S. Court of Appeals (Power Integrations Inc. v. Fairchild Semiconductor Inc., et al., Nos. 16-2691, 17-1875, Fed. Cir.).



Zillow Tells 9th Circuit Use Of Home Photos On Website Was Fair Use
SAN FRANCISCO - In an Oct. 26 brief appealing a $4 million statutory damages award that assigned a per-photo fine for 2,700 real estate photos deemed infringing, Zillow Group Inc. tells the Ninth Circuit U.S. Court of Appeals that its online use of the pictures was transformative and fair use (VHT Inc. v. Zillow Group Inc., et al., No. 17-35587 and 17-35588, 9th Cir.).



Usenet Provider Opposes Adult Site's Certiorari Bid In Vicarious Copyright Suit
WASHINGTON, D.C. - Asserting that an appeals court's ruling in its favor presented no conflicts with copyright law or controlling case law, a usenet provider argues in an Oct. 20 brief in the U.S. Supreme Court that there is no merit to an adult website operator's petition for certiorari appealing a finding that the respondent was not liable for infringing content posted by its users (Perfect 10 Inc. v. Giganews Inc., et al., No. 17-320, U.S. Sup.).



Clothing, Cosmetics Firms Debate Laches In 9th Circuit 'Lush' Trademark Suit
SAN FRANCISCO - Two companies claiming ownership of the "Lush" trademark debate in briefs to the Ninth Circuit U.S. Court of Appeals whether a cosmetics firm's infringement claim was barred under the doctrine of laches and whether it was filed within the statute of limitations (Pinkette Clothing Inc. v. Cosmetic Warriors Limited, No. 17-55325, 9th Cir.).



Wal-Mart, Variety Stores Argue Over Disgorgement In 'Backyard' Mark Suit
RICHMOND, Va. - Retailers Variety Stores Inc. and Wal-Mart Stores Inc. recently briefed the Fourth Circuit U.S. Court of Appeals on whether Wal-Mart infringed Variety's "The Backyard" trademark and whether the amount of disgorged profits was properly limited to $32 million (Variety Stores Inc. v. Wal-Mart Stores Inc., No. 17-1503 and 17-1644, 4th Cir.).



Insurer Seeks Reversal Of Finding That Trade Dress Claim Triggered Duty To Defend
SAN FRANCISCO - A commercial general liability insurer recently asked the Ninth Circuit U.S. Court of Appeals to reverse a lower federal court's ruling that it has a duty to defend its garment merchant insured against an underlying lawsuit, arguing that the lower court erred in finding that the insured was potentially liable for alleged damages arising from trade dress infringement in one of its advertisements (Great Lakes Reinsurance [UK] PLC v. In and Out Fashion Inc., 16-56425, 9th Cir.).



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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