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Preview: LexisNexis® Mealey's™ Intellectual Property Legal News

LexisNexis® Mealey's™ Intellectual Property Legal News



Headline Intellectual Property Legal News from LexisNexis®



 



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



New York Federal Judge Largely Sides With Amazon In Copyright Case
BROOKLYN, N.Y. - Citing the views of the U.S. Copyright Office, a New York federal judge on April 8 found that if a plaintiff's ambient songs are ultimately adjudged to be the same musical works as non-ambient songs, Amazon.com Inc. is not required to serve a copyright owner with additional notices of intent (NOIs) to obtain compulsory licenses (Yesh Music LLC, et al. v. Amazon.com Inc., et al., No. 16-1406, E.D. N.Y., 2017 U.S. Dist. LEXIS 54417).



Ohio Federal Judge Partly Grants Judgment In Architectural Design Case
CLEVELAND - A declaratory judgment plaintiff-franchisee prevailed in part on its request for summary judgment on April 12, when an Ohio federal judge agreed that there is no direct evidence that it infringed copyrighted architectural works and that the copyright owner failed to demonstrate substantial similarity (Robert L. Stark Enterprises Inc. v. Neptune Design Group LLC, No. 16-264, N.D. Ohio; 2017 U.S. Dist. LEXIS 55951).



Bill Tackles Transmission Of Sound Recordings Over Terrestrial Stations
WASHINGTON, D.C. - U.S. Rep. Darrell Issa, R-Calif., on April 5 introduced a bill aimed at restoring broadcasting rights to copyright owners whose songs are transmitted by terrestrial radio stations.



West Virginia Federal Judge: Res Judicata Bars Trademark Claims
CHARLESTON, W.Va. - Allegations of trademark abandonment through naked licensing were dismissed March 31 by a West Virginia federal judge pursuant to the doctrine of res judicata (Gerald Mollohan v. Brothers of the Wheel M.C. Executive Council Inc., No. 13-32251, S.D. W.Va., 2017 U.S. Dist. LEXIS 48690).



Judge: Expert Testimony Is Relevant, Reliable In Weight Loss Drug Trademark Suit
SAN DIEGO - A California federal judge on March 29 allowed rebuttal expert testimony in a trademark lawsuit over the quality of a weight loss supplement because the expert is qualified and her testimony is relevant and based on reliable methods (Obesity Research Institute LLC v. Fiber Research International LLC, et al., No. 15-595, S.D. Calif., 2017 U.S. Dist. LEXIS 46999).



Illinois Federal Judge: Does Noble Roman's Lawsuit Name Correct Defendant?
CHICAGO - An Illinois federal judge on March 29 denied both plaintiff and defense motions for summary judgment in a breach of contract and Lanham Act case, saying there is a question of whether the correct corporate entity has been named as the defendant (Noble Roman's Inc. v. B&MP LLC, et al., No. 15-cv-9446, N.D. Ill., Eastern Div., 2017 U.S. Dist. LEXIS 46861).



New Jersey Federal Judge Grants Howard Johnson Judgment Against Franchisee
NEWARK, N.J. - A New Jersey federal judge on April 3 granted Howard Johnson International Inc.'s (HJI) unopposed motion for summary judgment on breach of contract, breach of guarantee and Lanham Act claims against a franchisee, saying the franchisee did not provide any information refuting HJI's claims (Howard Johnson International Inc. v. SSR Inc., et al., No. 14-4611, D. N.J., 2017 U.S. Dist. LEXIS 51109).



Indiana Federal Judge Extends Injunction Against Former Fitness Salon Franchisee
INDIANAPOLIS - An Indiana federal judge on April 5 adopted a magistrate judge's recommendation and extended a preliminary injunction against a woman who allegedly began operating a competing fitness business using a fitness franchisor's trademarks, logos and confidential information, saying that she failed to show that the order was clearly in error (Get in Shape Franchise Inc. v. TFL Fishers LLC, et al., No. 1:16-cv-01374, S.D. Ind., 2017 U.S. Dist. LEXIS 51626).



House, Senate Unveil Legislation Aimed At Stolen Trademarks
WASHINGTON, D.C. - Identical bills devoted to curbing the practice of Cuban confiscation of trademarks were recently introduced in both chambers of Congress; S. 259 and H.R. 1450 are both titled the "No Stolen Trademarks Honored in America Act."



9th Circuit: False Patent Marking Claim Did Not Trigger Advertising Injury Coverage
PASADENA, Calif. - The Ninth Circuit U.S. Court of Appeals on March 31 affirmed that an insurance policy's advertising injury provision did not cover a false patent marking claim that contributed to a $2,951,024 judgment against an insured (Sei Y. Kim v. Truck Insurance Exchange, et al., No. 15-56486, 9th Cir., 2017 U.S. App. LEXIS 5631).



Judge: Intellectual Property Exclusion Relieves Insurer Of Its Duty To Defend
RIVERSIDE, Calif. - A California federal judge on April 3 entered final judgment in favor of a commercial general liability insurer after finding that it has no duty to defend its insured against an underlying trademark and trade dress infringement lawsuit because the insurance policy's intellectual property exclusion bars coverage for all claims (Secard Pools, Inc., et al. v. Kinsale Insurance Co., No. 16-02404, C.D. Calif., 2017 U.S. Dist. LEXIS 47871).



Judge: Suit Fails To Allege Insured Published Material That Disparages Sprint
BALTIMORE - A Maryland federal judge on March 29 held that Sprint's underlying lawsuit against an insured fails to allege the publication of disparaging material and, therefore, the insurer's duty to defend was not triggered under the policy's "personal and advertising injury coverage" (Unwired Solutions, Inc. v. Ohio Security Insurance Co., No. 16-0405, D. Md., 2017 U.S. Dist. LEXIS 46215).



No Coverage For False Advertising Claims Against Insured, 6th Circuit Affirms
CINCINNATI - The Sixth Circuit U.S. Court of Appeals on April 11 affirmed a lower federal court's ruling that a business liability policy does not provide coverage for false advertising claims brought against an eye health supplement maker insured by a competitor, finding that the insured failed to demonstrate that the underlying complaint alleged a product disparagement claim (Vitamin Health, Inc. v. Hartford Casualty Insurance Co., No.16-1724, 6th Cir.).



Halo, Pulse Again Square Off In Oral Arguments Before Federal Circuit
WASHINGTON, D.C. - A dispute over an award of prejudgment interest in a longstanding dispute over patented transformer packaging was argued April 5 before the Federal Circuit U.S. Court of Appeals (Halo Electronics Inc. v. Pulse Electronics Inc., No. 16-2006, Fed. Cir.).



Federal Circuit Hears Oral Arguments In Patent Ineligibility Case
WASHINGTON, D.C. - A determination that various claims of a patented method for providing and editing medical records are directed to patent-eligible subject matter was debated April 7 in oral arguments before the Federal Circuit U.S. Court of Appeals (Preservation Wellness Technologies LLC v. Allscripts Healthcare Solutions Inc., No. 16-2193, Fed. Cir.).



PTO: PTAB Need Not Issue Final Decision On All Claims For Inter Partes Review
WASHINGTON, D.C. - An appellate court correctly held that the Patent Trial and Appeal Board (PTAB) does not need to issue a final decision addressing the patentability of every claim identified in a petition for inter partes review (IPR), "including claims whose patentability the agency declined to review in the instituted proceeding," the U.S. Patent and Trademark Office (PTO) director tells the U.S. Supreme Court in an April 5 response brief (SAS Institute Inc. v. Michelle K. Lee, director, U.S. Patent and Trademark Office and ComplementSoft LLC, No. 16-969, U.S. Sup.).



Appellant Tells Federal Circuit: No Fee Awards In Challenge Of Patent Rejections
WASHINGTON, D.C. - The applicability of the "American Rule" in disputes over a rejection of patent claims by the U.S. Patent and Trademark Office (PTO) is currently before the Federal Circuit U.S. Court of Appeals (Realvirt LLC v. Michelle K. Lee, Director, U.S. Patent and Trademark Office, No. 17-1159, Fed. Cir.).



Patent Defendant: Judge Erred In Undoing Jury's Verdict Of Invalidity
WASHINGTON, D.C. - A jury empanelled in Texas federal court correctly deemed various claims of two medical device patents invalid as anticipated and obvious, an infringement defendant recently argued to the Federal Circuit U.S. Court of Appeals (Flexuspine Inc. v. Globus Medical Inc., Nos. 17-1188, -1189, Fed. Cir.).



Biologic Firm Urges Supreme Court To Reject Prenotice FDA Approval Requirement
WASHINGTON, D.C. - In a March 31 brief, Sandoz Inc. tells the U.S. Supreme Court that rival biologic maker Amgen Inc. and the Federal Circuit U.S. Court of Appeals have improperly read a requirement into a federal biosimilar statute mandating Food and Drug Administration approval of a biologic license application prior to the statute's required 180-day premarketing notice (Sandoz Inc. v. Amgen Inc., et al.., No. 15-1039 and 15-1195, U.S. Sup.).



Samsung's Amicus Filers Back Obviousness Question In Patent Suit With Apple
WASHINGTON, D.C. - Nonprofit organizations for civil liberties filed an amicus curiae brief on April 10 in support of the U.S. Supreme Court deciding Samsung Electronics Co.'s petition on whether Graham v. John Deere Co., 383 U.S. 1 (1966), and KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), require a court to hold patents obvious under 35 U.S. Code Section 103, "where the patents make at most trivial advances over technologies well-known to a person of skill in the art" (Samsung Electronics Co. Ltd., et al. v. Apple Inc., No. 16-1102, U.S. Sup.).



Megaupload Executives Ask High Court To Hear Foreign Asset Forfeiture Case
WASHINGTON, D.C. - In an April 7 petition for certiorari, former executives with now-defunct file-sharing service Megaupload ask the U.S. Supreme Court to hear arguments over the U.S. government's application of laws governing the forfeiture of foreign-held assets by those deemed to be fugitives avoiding prosecution, arguing that their assets were wrongly seized in conjunction with a novel, untested theory of criminal copyright infringement (Finn Batato, et al. v. United States of America, No. 16-1206, U.S. Sup.).



HBO Tells 9th Circuit 'Ballers' Copyright Suit Was Properly Dismissed
SAN FRANCISCO - Home Box Office Inc. (HBO) and others connected with the television show "Ballers" argue in an April 3 Ninth Circuit U.S. Court of Appeals appellee brief that the series is not substantially similar to a copyrighted work of two California writers, seeking affirmance of a trial court order dismissing the infringement suit (Everette Silas, et al. v. Home Box Office Inc., et al., No. 16-56215, 9th Cir.).



Usenet Provider Opposes 9th Circuit Rehearing Over Vicarious Liability
PASADENA, Calif. - A Ninth Circuit U.S. Court of Appeals panel correctly found that it was not liable for its users' posting of copyrighted adult pictures, a usenet service provider asserts in an April 10 brief opposing an adult entertainment firm's petition for rehearing, arguing that the panel applied the correct standard for determining vicarious liability (Perfect 10 Inc. v. Giganews Inc., et al., No. 15-55500, 15-55523 and 15-56026, 9th Cir.).



Plastics Firms Debate Attorney Fees Award In 8th Circuit Trademark Appeal
ST. LOUIS - On a second appeal before the Eighth Circuit U.S. Court of Appeals regarding the ownership of a trademark connected with plastic products in the poultry field, two plastic manufacturing companies filed briefs arguing whether an Iowa federal judge properly clarified an earlier ruling on remand and awarded attorney fees under state law based on the defendant's harassment of the plaintiff (East Iowa Plastics Inc. v. PI Inc., No. 16-4574, 8th Cir.).



Trade Dress, Trademark Protection Of Light Installations Debated In 8th Circuit
ST. LOUIS - An artist known for light installations and a one-time potential client have filed briefs in the Eighth Circuit U.S. Court of Appeals, debating whether a trial court properly dismissed the artist's trade dress and trademark claims over a purported lookalike, and similarly-named, display as preempted by copyright law (Bruce Munro, et al. v. Lucy Activewear Inc., et al., No. 16-4483, 8th Cir.).



Divided Supreme Court: Laches No Defense To Timely Patent Claims
WASHINGTON, D.C. - In a 7-1 ruling, the U.S. Supreme Court on March 21 rejected findings by a divided en banc Federal Circuit U.S. Court of Appeals that the equitable defense of laches remains available even when a claim for damages is brought within the six-year limitations period set forth in Section 286 of the Patent Act, 35 U.S.C. 1 et seq. (SCA Hygiene Products Aktiebolag and SCA Personal Care, Inc. v. First Quality Baby Products, LLC, et al., No. 15-927, U.S. Sup.).



Supreme Court Holds Oral Arguments In Dispute Over Patent Venue Statute
WASHINGTON, D.C. - A petitioner told the U.S. Supreme Court on March 27 that venue is proper only in a defendant's place of incorporation and that, accordingly, allegations of patent infringement by Kraft Foods Group Brands LLC should have been levied in Indiana federal court and not in Delaware, where allegedly infringing products were shipped (TC Heartland LLC d/b/a Heartland Food Products Group v. Kraft Foods Group Brands LLC, No. 16-341, U.S. Sup.).



Supreme Court Hears Arguments In Dispute Over Patent Exhaustion Limits
WASHINGTON, D.C. - The doctrine of patent exhaustion is not avoidable by attaching post-sale restrictions, an attorney for a patent infringement defendant told the U.S. Supreme Court on March 21 (Impression Products Inc. v. Lexmark International Inc., No. 15-1189, U.S. Sup.).



Supreme Court Grants Certiorari, Remands Trio Of Patent Cases
WASHINGTON, D.C. - On the heels of its March 21 decision in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 580 U. S. ___ (2017), the U.S. Supreme Court on March 27 granted petitions for certiorari in three patent cases for the limited purpose of vacating and remanding to the Federal Circuit U.S. Court of Appeals (Medinol Ltd. v. Cordis Corp., et al., No. 15-998; Endotach LLC v. Cook Medical LLC, No. 16-127; Romag Fasteners Inc. v. Fossil Inc., et al., No. 16-202, U.S. Sup.).



Federal Circuit Partly Reverses Invalidation Of Hair Loss Patent
WASHINGTON, D.C. - A North Carolina federal judge's determination that all claims of a hair growth patent are invalid was reversed March 17 by the Federal Circuit U.S. Court of Appeals (Allergan Inc. v. Sandoz Inc., et al., Nos. 16-1085, -1160, Fed. Cir.; 2017 U.S. App. LEXIS 4733).



On Remand, Federal Circuit Orders New Trial On Patent Damages
WASHINGTON, D.C. - Acting on remand from the U.S. Supreme Court, the Federal Circuit U.S. Court of Appeals on March 17 found that a patent dispute requires a new trial on damages in light of Samsung Electronics Co. v. Apple Inc., 137 S. Ct. 429 (2016) (Nordock Inc. v. Systems Inc., Nos. 14-1762, -1795, Fed. Cir.; 2017 U.S. App. LEXIS 4732).



Federal Circuit Upholds Award Of Fees In Favor Of Dow In Patent Case
WASHINGTON, D.C. - A Delaware federal judge did not abuse her discretion in determining that a failed patent case by Bayer Cropscience AG was exceptional, thereby triggering an award of attorney fees, the Federal Circuit U.S. Court of Appeals concluded March 17 (Bayer Cropscience AG v. Dow Agrosciences LLC, No. 15-1854, Fed. Cir., 2017 U.S. App. LEXIS 4723).



5th Circuit Affirms: No Live Controversy In Patent, Trade Secret Row
NEW ORLEANS - A dismissal with prejudice of a complaint seeking a declaration of patent noninfringement and that no trade secrets were misappropriated was correct, the Fifth Circuit U.S. Court of Appeals ruled March 20 in a dispute over gas-to-liquid (GTL) conversion technology (Sasol North America Inc., et al. v. GTLPetrol LLC, No. 16-20122, 5th Cir., 2017 U.S. App. LEXIS 5107).



ICSID Dismisses Eli Lilly's Claims Against Canada For Patent Invalidation
WASHINGTON, D.C. - A tribunal for the International Centre for Settlement of Investment Disputes (ICSID) on March 20 issued its final award in a dispute over Canadian drug patents, dismissing all of a pharmaceutical company's claims and finding that the invalidation of the patents by Canadian courts did not constitute violations of the North American Free Trade Agreement (NAFTA) (Eli Lilly and Company v. Government of Canada, No. UNCT/14/2, ICSID).



Judge Excludes Urologist's Testimony On Inefficacy Of Remedies In Drug Patent Suit
MARSHALL, Texas - Although a urologist's testimony on the inefficacy of natural and herbal remedies was barred in a patent infringement case over a drug's marketing, a Texas federal judge on March 17 allowed the urologist to testify as to the drug's marketing (Erfindergemeinschaft UroPep GbR v. Eli Lilly and Co., No. 15-1202, E.D. Texas, 2017 U.S. Dist. LEXIS 38512).



Magistrate Judge Allows Testimony On Claimed Process In Patent Infringement Suit
TYLER, Texas - In a patent infringement lawsuit, an expert may provide opinions "based on his technical knowledge and expertise" as to the technical advantages of a claimed process of forming circuitry used in controlling liquid crystal displays (LCDs), a Texas federal magistrate judge ruled March 22 (Eidos Display LLC and Eidos III LLC v. Chi Mei Innolux Corp., et al., No. 11-00201, E.D. Texas, 2017 U.S. Dist. LEXIS 41040).



Hovercraft Patent Targeted In New Petition For Inter Partes Review
ALEXANDRIA, Va. - On the heels of its Feb. 16 ruling that granted inter partes review (IPR) of one claim of a hovercraft patent, the Patent Trial and Appeal Board was asked March 15 to also review several other claims of the same patent on anticipation grounds (Parrot S.A., et al. v. QFO Labs Inc., No. IPR2017-01089, PTAB).



Twitter Seeks Inter Partes Review Of Web Content Patent
ALEXANDRIA, Va. - Asserting eight separate grounds of unpatentability, Twitter Inc. on March 24 took aim at a patent directed at creating and sharing web content in a new petition for inter partes review (IPR) with the Patent Trial and Appeal Board (Twitter Inc. v. Yootoo Technologies LLC, No. IPR2017-01131, PTAB).



Patent Board Deems All 4 Challenged Claims Obvious In Final Decision
WASHINGTON, D.C. - A challenger of a dentistry patent prevailed before the Patent Trial and Appeal Board March 26 when in a final written decision the board deemed four claims obvious in light of three pieces of prior art (ClearCorrect Operating LLC v. Align Technology Inc., No. IPR2016-00270, PTAB).



Patent Board In Final Decision Says Invention Claims Abstract Idea
ALEXANDRIA, Va. - A claimed method of processing merchandise discounts based upon a computerized membership system does not pass muster under Section 101 of the Patent Act, 35 U.S.C. 1 et seq., the Patent Trial and Appeal Board ruled March 27 in a final written decision (The Kroger Company, et al. v. Nexuscard Inc., No. CBM2015-00183, PTAB).



Patent Owner Requests Adverse Judgment Before Patent Board
ALEXANDRIA, Va. - The Patent Trial and Appeal Board on March 24 granted a patent owner's request to cancel 19 claims of a single-serve beverage brewing machine patent, on the heels of a January decision by the board that granted inter partes review (Keurig Green Mountain Inc. v. Touch Coffee & Beverages LLC, No. IPR2016-01394, PTAB).



Divided Supreme Court Clarifies Separability Test In Copyright Case
WASHINGTON, D.C. - In divided decision, the U.S. Supreme Court on March 22 ruled that a feature incorporated into the design of a useful article is eligible for copyright protection when the feature can be perceived as a two- or three-dimensional work of art separate from the useful article and would qualify on its own or in some other tangible medium as a protectable pictorial, graphic or sculptural work (Star Athletica, LLC v. Varsity Brands, Inc., et al., No. 15-866, U.S. Sup.).



Supreme Court Declines To Hear Case On DMCA Safe Harbor For Pre-1972 Recordings
WASHINGTON, D.C. - The Second Circuit U.S. Court of Appeals' finding that Digital Millennium Copyright Act (DMCA) safe-harbor provisions apply to pre-1972 recordings will stand, as the U.S. Supreme Court on March 27 denied a group of record labels' petition for certiorari in their dispute with an online video-sharing service that they accused of infringing their copyrighted works (Capitol Records LLC, et al. v. Vimeo LLC, et al., No. 16-771, U.S. Sup., 2017 U.S. LEXIS 2055).



TV Networks Prevail Before 9th Circuit In Copyright Case
SAN FRANCISCO - A service that captures copyrighted works broadcast over the air for online retransmission to paying subscribers without the consent of a copyright holder is not eligible for the compulsory license for "cable systems" provided for in Section 111 of the Copyright Act, 17 U.S.C. 101 et seq., the Ninth Circuit U.S. Court of Appeals ruled March 21 (Fox Television Stations Inc., et al. v. Aereokiller LLC, No. 15-56420, 9th Cir., 2017 U.S. App. LEXIS 4999).



5th Circuit: Volitional Conduct Needed For Direct Copyright Infringement
NEW ORLEANS - A Texas federal judge did not err in granting a defendant summary judgment on the question of direct copyright infringement because the judge properly found an absence of volitional conduct, the Fifth Circuit U.S. Court of Appeals ruled March 27 (BWP Media USA, et al. v. T&S Software Associates, No. 16-10510, 5th Cir., 2017 U.S. App. LEXIS 5340).



Indiana Federal Judge Says Copyright Claims Not Time-Barred
FORT WAYNE, Ind. - Efforts by a copyright infringement defendant to obtain summary judgment were unsuccessful on March 24 when an Indiana federal judge found that the U.S. Supreme Court's ruling in Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014), did not change the Seventh Circuit U.S. Court of Appeals' "discovery rule" for determining when an allegation of infringement has accrued (Design Basics LLC v. Westport Homes of Fort Wayne Inc., et al., No. 16-170, N.D. Ind., 2017 U.S. Dist. LEXIS 43060).



Award Vacated, Trademark Infringement Verdict Upheld By 5th Circuit
NEW ORLEANS - An award of royalty damages on behalf of a trademark infringement plaintiff was vacated March 16 by the Fifth Circuit U.S. Court of Appeals (Streamline Production Systems Inc. v. Streamline Manufacturing Inc., No. 16-20046, 5th Cir., 2017 U.S. App. LEXIS 4708).



New York Federal Judge Grants Verizon Motion In Service Mark Case
BROOKLYN, N.Y. - Allegations that Verizon Communications Inc. committed trademark infringement when it adopted the term "Free Will" in connection with an advertising campaign were dismissed March 17 by a New York federal judge (Public Free Will Corp. v. Verizon Communications Inc., No. 15-6354, E.D. N.Y., 2017 U.S. Dist. LEXIS 39168).



New York Federal Judge Grants Partial Judgment In Trademark Case
ALBANY, N.Y. - Citing evidence that a defendant acted outside the scope of its licensing agreement with a plaintiff, as well as evidence that the defendant used a trademark identical to that of a plaintiff, a New York federal judge on March 22 granted partial summary judgment in a dispute over sports protective eyewear (Halo Optical Products Inc. v. Liberty Sport Inc., No. 14-282, N.D. N.Y., 2017 U.S. Dist. LEXIS 41084).



Terminated Franchisees Preliminarily Enjoined From Using Dickey's Barbecue Marks
SHERMAN, Texas - Two weeks after issuing a temporary restraining order (TRO) against the terminated franchisees of two Arizona Dickey's Barbecue Pit locations to prevent them from using the barbecue chain's trademarks, a Texas federal judge on March 22 granted the franchisor's motion for a preliminary injunction, finding the plaintiff likely to succeed on its trademark infringement claims (Dickey's Barbecue Pit Inc., et al. v. Celebrated Affairs Catering Inc., et al., No. 4:17-cv-00127, E.D. Texas, 2017 U.S. Dist. LEXIS 41038).



11th Circuit Panel Says Groucho's Trademark Suit Barred By Laches
ATLANTA - An 11th Circuit U.S. Court of Appeals panel on March 29 affirmed summary judgment in favor of a delicatessen in a lawsuit in which a restaurant chain franchisor said the deli's name infringed on its registered service mark, saying the complaint was barred by laches (Groucho's Franchise Systems LLC v. Grouchy's Deli Inc., No. 16-16279, 11th Cir., 2017 U.S. App. LEXIS 5437).



Illinois Federal Judge Finds Ethics Violation In Trademark Case
CHICAGO - All previous pleadings by counsel for three common-law trademark defendants were stricken March 28 by an Illinois federal judge as a sanction for ethics violations (Lectric Limited v. DGW Inc., No. 15-7744, N.D. Ill., 2017 U.S. Dist. LEXIS 44867).



South Dakota Federal Judge Vacates Damage Award In Trademark Case
RAPID CITY, S.D. - A money judgment totaling nearly $1 million was vacated March 10 by a South Dakota federal judge on laches grounds, despite findings in the same ruling that a plaintiff owns a valid and infringed trademark (Sturgis Motorcycle Rally Inc. v. Rushmore Photo & Gifts Inc., et al., No. 11-5052, D. S.D.; 2017 U.S. Dist. LEXIS 39462).



D.C. Federal Judge: Domain Registration Would Not Change Trial Outcome
WASHINGTON, D.C. - Efforts by a defendant to obtain a new trial in a dispute over the "La Indita Michoacana" trademark in light of newly discovered evidence were denied March 30 by a District of Columbia federal judge (Paleteria La Michoacana Inc., et al. v. Productos Lacteos Tocumbo S.A. De C.V., No. 11-1623, D. D.C.).



9th Circuit Affirms $6.1M Judgment In Favor Of Insured In Dispute With Excess Insurer
PASADENA, Calif. - The Ninth Circuit U.S. Court of Appeals on March 21 affirmed a lower federal court's $6,080,568 judgment in favor of an insured in a breach of contract and bad faith lawsuit against its excess general liability insurer arising from an underlying patent infringement dispute (Teleflex Medical Incorporated v. National Union Fire Insurance Company of Pittsburgh, Pa., No. 14-56366, 9th Cir., 2017 U.S. App. LEXIS 4996).



9th Circuit Dismisses Appeal In Coverage Dispute Over Trademark Claims
PASADENA, Calif. - The Ninth Circuit U.S. Court of Appeals on March 21 dismissed an insured's appeal in an advertising injury coverage dispute after a lower federal court determined on remand that it lacked subject matter jurisdiction over the case (Vogue International, LLC, d.b.a. Vogue International v. Hartford Casualty Insurance Co., No. 14-56394, 9th Cir., 2017 U.S. App. LEXIS 5011).



Panel: Architect Did Not Have 'Deemed Allowed' Claim That Constitutes Res Judicata
NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on March 24 denied an architect's appeal seeking to reverse a ruling in favor of a home builder's insurer in a breach of contract dispute arising from an underlying $63,471,000 copyright infringement dispute, rejecting the architect's argument that an unobjected-to proof of claim in a bankruptcy case should be allowed and should become a final judgment when the bankruptcy case is closed (Kipp Flores Architects, LLC v. Mid-Continent Casualty Co., No. 16-20255, 5th Cir., 2017 U.S. App. LEXIS 5241).



Samsung Raises Obvious Question To High Court In Patent Suit With Apple
WASHINGTON, D.C. - Samsung Electronics Co. in a March 10 petition for writ of certiorari asks the U.S. Supreme Court if Graham v. John Deere Co., 383 U.S. 1 (1966), and KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), require a court to hold patents obvious under 35 U.S. Code Section 103, "where the patents make at most trivial advances over technologies well-known to a person of skill in the art" (Samsung Electronics Co. Ltd., et al. v. Apple Inc., No. 16-1102, U.S. Sup.).



Cox Seeks High Court Review Of General Rule In Patent Definiteness Analysis
WASHINGTON, D.C. - In a patent infringement dispute with Sprint Communications Co. LP, Cox Communications Inc. and its entities ask the U.S. Supreme Court in a March 13 petition if the general rule that each element in a patent claim is material to the invention's scope applies to analysis of a claim's definiteness under 35 U.S. Code Section 112 (Cox Communications Inc., et al. v. Sprint Communications Company LP, et al., No. 16-1106, U.S. Sup.).



Medtronic Seeks High Court Review Of PTAB Decision On Jurisdiction Under APA
WASHINGTON, D.C. - Medtronic Inc. asked the U.S. Supreme Court in a March 17 petition whether a federal district court has jurisdiction to decide a claim under the Administrative Procedure Act (APA) challenging "as arbitrary and capricious, contrary to law, and contrary to due process" a final Patent Trial and Appeal Board (PTAB) decision terminating already-instituted inter partes reviews (IPR) on grounds unrelated to the patent merits (Medtronic Inc. v. Michelle K. Lee, Director, U.S. Patent and Trademark Office, No. 16, 1138, Medtronic Inc. v. Robert Bosch Healthcare Systems Inc., No. 16-1139, U.S. Sup.).



Trash Bag Maker Asks High Court To Review Limitation Imposed On Patent Claim
WASHINGTON, D.C. - A manufacturer of trash bags in a March 16 petition asks the U.S. Supreme Court to answer whether a court can "impose a limitation on a patent claim that is contrary to the claim's plain meaning, based on the court's inferences from the patent's specification and prosecution history" (Poly-America L.P. v. API Industries Inc., No. 16-1123, U.S. Sup.).



Patent Owner Asks High Court If Diehr Can Be 'Harmonized' With Alice
WASHINGTON, D.C. - A patent owner in a March 10 petition asks the U.S. Supreme Court to decide whether and to what extent Diamond v. Diehr, 450 U.S. 175 (1981), which "confirms that patents directed to the acquisition of data are directed to patent-eligible subject matter, can be harmonized" with the decision in Alice Corp. v. CLS Bank International, 134 S. Ct. 2347, 2354 (2014) (Concaten Inc. v. AmeriTrak Fleet Solutions LLC, No. 16-1109, U.S. Sup.).



Obviousness-Type Double Patenting Case Proceeds To Federal Circuit
WASHINGTON, D.C. - A dispute over various claims of a monoclonal antibody patent that were invalidated on the basis of obviousness-type double patenting was recently briefed before the Federal Circuit U.S. Court of Appeals (Janssen Biotech Inc. v. Celltrion Healthcare Co. Ltd., No. 17-1120, Fed. Cir.).



Federal Circuit To Hear Patent Dispute Over Colitis Drug In May
WASHINGTON, D.C. - In a March 21 docket entry, the Federal Circuit U.S. Court of Appeals announced that it will hear a patent dispute over a planned generic drug for the treatment of colitis on May 1 (Shire Development LLC, et al. v. Cadila Healthcare Ltd., d/b/a Zydus Cadila, et al., No. 17-1048, Fed. Cir.).



University Seeks Review Of Invalidation By Board Of Anomaly Detector Patent
WASHINGTON, D.C. - Findings by the Patent Trial and Appeal Board that various claims of a patented anomaly detector are unpatentable as anticipated and obvious were erroneous, the trustees of Columbia University recently told the Federal Circuit U.S. Court of Appeals (Trustees of Columbia University v. Symantec Corp., Nos. 16-2551, -2554, -2630 and -2631, Fed. Cir.).



Tossed $200 Million Patent Verdict Debated Before Federal Circuit
WASHINGTON, D.C. - A California federal judge's decision to nullify a $200 million jury award on behalf of a prevailing patent infringement plaintiff under the doctrine of unclean hands was erroneous, the patent owner recently argued to the Federal Circuit U.S. Court of Appeals (Gilead Sciences Inc. v. Merck & Co. Inc., No. 16-2302, Fed. Cir.).



Software Support Firm Appeals $41.2M Jury Verdict In Oracle Copyright Suit
SAN FRANCISCO - Appealing a $41.2 million jury verdict in a copyright infringement suit, a software support company argues in a March 10 reply brief to the Ninth Circuit U.S. Court of Appeals that licenses by Oracle USA Inc. "expressly authorize third-party support and the copies necessary to provide it" and that it was authorized access to download support materials (Oracle USA Inc., et al. v. Rimini Street Inc. and Seth Ravin, Nos. 16-16-832 & 16-16905, 9th Cir.).



Record Label Says 'Empire' Trademark Infringement Falls Into Exception Of Rogers
SAN FRANCISCO - A record label argues to the Ninth Circuit U.S. Court of Appeals in its March 15 reply brief that Rogers v. Grimaldi, 875 F.2d 994, 997 (2d Cir. 1989), does not govern the infringement of its trademarks by television companies because their use of a mark in the title of a television series and music soundtracks falls within an exception to Rogers (Twentieth Century Fox Television, et al. v. Empire Distribution Inc., No. 16-55577, 9th Cir.).



Firearms Dealer: Heightened Scrutiny For Denial Of Jury Trial In Trademark Suit
WASHINGTON, D.C. - In a trademark dispute over a profits claim, a firearms dealer argues to the U.S. Supreme Court in a March 15 reply brief that when a party clearly intends to pursue a jury trial, "heightened scrutiny applies to a district court's denial of that right" (Clyde Armory Inc. v. FN Herstal S.A., No. 16-936, U.S. Sup.).



5th Circuit: Contributory Copyright Claim Barred In Seismic Data Dispute
NEW ORLEANS - In a ruling issued March 10, the Fifth Circuit U.S. Court of Appeals found that the inapplicability of the Copyright Act, 17 U.S.C. 101 et seq., to extraterritorial conduct bars a contributory infringement claim when it is based upon the domestic authorization of entirely extraterritorial conduct (Geophysical Services Incorporated v. TGS-Nopec Geophysical Services, No. 15-20706, 5th Cir., 2017 U.S. App. LEXIS 4286).



9th Circuit Reinstates $450,000 Damage Award For Copyright Plaintiff
SAN FRANCISCO - A decision by jurors to award a sculptor $450,000 in actual damages stemming from the creation of seven knock-off sculptures was reinstated by the Ninth Circuit U.S. Court of Appeals on March 6 (Donald Wakefield v. Igor Olenicoff, No. 15-55649, 9th Cir., 2017 U.S. App. LEXIS 3953).



VR Companies File Post-Verdict Motions In Trade Secrets Suit
DALLAS - Two virtual reality (VR) technology companies asked a federal judge in Texas on Feb. 23 to issue a permanent injunction and a monetary judgment in their favor after a jury found that four defendants - including Facebook Inc. - violated the terms of a nondisclosure agreement and engaged in false designation in connection with their use of the companies' proprietary information to develop certain VR technology (ZeniMax Media Inc., et al. v. Oculus VR Inc., et al., No. 14-cv-1849, N.D. Texas, Dallas Div.).



Ohio Magistrate Won't Exclude Evidence As Sanction In Copyright Case
CLEVELAND - A copyright infringement plaintiff's request that evidence of expenses, deductions or allocations be excluded from the calculation of damages in connection with a defendant's alleged discovery abuses was denied March 7 by an Ohio federal magistrate judge (Design Basics LLC v. Petros Homes Inc., et al., No. 14-1966, N.D. Ohio, 2017 U.S. Dist. LEXIS 32066).



California Federal Judge Denies Cross-Motions On Copyright First-Sale Defense
SAN FRANCISCO - Competing motions for summary judgment on whether licensing agreements asserted in a third amended complaint (TAC) establish that disputed software is subject to the first-sale defense to allegations of copyright infringement were denied March 14 by a California federal judge (Microsoft Corp. v. A&S Electronics Inc., No. 15-3570, N.D. Calif., 2017 U.S. Dist. LEXIS 36477).



Oklahoma Federal Judge Weighs In Copyright Dispute Over Registrations
OKLAHOMA CITY - Allegations that a licensee exceed the terms of its license to use various photographs of its own equipment and property will proceed, in light of a March 10 ruling by an Oklahoma federal judge which denied, in part, a motion for summary judgment (David McNeese v. Access Midstream Partners LP, No. 14-503, W.D. Okla.; 2017 U.S. Dist. LEXIS 34538).



Magistrate Criticizes Discovery Responses In Copyright Case, Scolds Entire District
NEW YORK - In a Feb. 28 ruling, a New York federal magistrate judge not only found a copyright and trademark defendant's discovery responses to be noncompliant with Federal Rule of Civil Procedure 34, he also took the opportunity to criticize attorneys throughout the district for continually failing to comply with December 2015 amendments to the rule (James H. Fischer v. Stephen T. Forrest Jr., et al., No. 1:14-cv-01304 and 1:14-cv-01307, S.D. N.Y., 2017 U.S. Dist. LEXIS 28102).



5th Circuit: Fraud Upon PTO Does Not Make Case Exceptional
NEW ORLEANS - A Texas federal judge properly ruled that fraud upon the U.S. Patent and Trademark Office (PTO) does not automatically render a case exceptional, thereby triggering an award of attorney fees, the Fifth Circuit U.S. Court of Appeals ruled March 1 (Stacey Vetter v. Christine McAtee, No. 15-20575, 5th Cir., 2017 U.S. App. LEXIS 3698).



Texas Magistrate Judge Recommends Trademark Lawsuit Should Proceed
AUSTIN, Texas - Efforts by a defendant to obtain judgment on the pleadings on allegations that it committed false advertising and trademark infringement should be denied, a Texas federal magistrate judge recommended March 3 (University Loft Company v. Blue Furniture Solutions LLC, No. 15-826, W.D. Texas, 2017 U.S. Dist. LEXIS 30767).