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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®



 



Supreme Court: BPCIA Provision Not Enforceable With Federal Injunction
WASHINGTON, D.C. - The requirement of Section 262(l)(2)(A) of the Biologics Price Competition and Innovation Act of 2009 (BPCIA), 42 U.S.C. 262(k), that a biologic applicant provide a sponsor with its applications and manufacturing information is not enforceable with a federal injunction, the U.S. Supreme Court ruled June 12 (Sandoz Inc. v. Amgen Inc., et al., No. 15-1039 and 15-1195, U.S. Sup.).



Constitutionality Of Inter Partes Review To Be Decided By Supreme Court
WASHINGTON, D.C. - The U.S. Supreme Court granted certiorari on June 12 in a dispute over the constitutionality of inter partes review (IPR) by the Patent Trial and Appeal Board (Oil States Energy Services LLC v. Greene's Energy Group LLC, No. 16-712, U.S. Sup.).



Deeply Divided Federal Circuit Denies Rehearing In Dispute Over CBM Scope
WASHINGTON, D.C. - In a June 6 order, the Federal Circuit U.S. Court of Appeals announced it will not rehear - en banc, or by the original three-judge panel - a dispute over what constitutes a covered business method (CBM) patent (Secure Axcess LLC v. PNC Bank National Association, et al., No. 16-1353, Fed. Cir.).



Michelle Lee Submits Resignation, Leaves PTO
WASHINGTON, D.C. - U.S. Secretary of Commerce Wilbur Ross confirmed June 6 that earlier that day, Michelle Lee resigned from her post as director of the U.S. Patent and Trademark Office (USPTO) and undersecretary of Commerce for Intellectual Property.



Texas Federal Magistrate Judge Vacates Infringement Finding In Patent Case
MARSHALL, Texas - Four patent defendants won partial relief pursuant to Federal Rule of Civil Procedure 60(b), Fed. R. Civ. P. 60(b), on June 7 when a Texas federal magistrate judge agreed that a judgment of willful infringement must be vacated (Convolve Inc. v. Dell Inc., et al., No. 08-244, E.D. Texas, 2017 U.S. Dist. LEXIS 87199).



Judge: Unfair Competition Claim Superseded By State Misappropriation Claim
SAN FRANCISCO - Dismissal of a California unfair competition law claim in a misappropriation of trade secrets lawsuit is proper because the claim is superseded by a state trade secrets law claim, a federal judge in California ruled June 8 in dismissing the claim (Waymo LLC v. Uber Technologies Inc., et al., No. 17-0939, N.D. Cali., 2017 U.S. Dist. LEXIS 89174).



Federal Circuit Affirms: Patents Lack Written Description Support
WASHINGTON, D.C. - Efforts by Purdue Pharma L.P. to overturn a Patent Trial and Appeal Board holding that myriad claims of two patent applications are unpatentable for lack of written description support failed June 13, when the Federal Circuit U.S. Court of Appeals instead upheld the board's rejection (Purdue Pharma L.P. v. Recro Technology LLC, No. 16-2260, Fed. Cir., 2017 U.S. App. LEXIS 10443).



Oregon Federal Judge Dismisses Willful Patent Infringement Claim
PORTLAND, Ore. - In a June 12 ruling, an Oregon federal judge agreed with Skechers USA Inc. that a patent complaint by Adidas AG fails to adequately state a claim for willful infringement (Adidas AG v. Skechers USA Inc., No. 16-1400, D. Ore., 2017 U.S. Dist. LEXIS 89752).



Federal Circuit Says Fee Award In Patent Case Was Erroneous
WASHINGTON, D.C. - In its second ruling in a longstanding dispute over patented anti-theft tags, the Federal Circuit U.S. Court of Appeals on June 5 again rejected a Pennsylvania federal judge's determination that the case qualifies as exceptional (Checkpoint Systems Inc. v. All-Tag Security S.A., et al., No. 16-1397, Fed. Cir., 2017 U.S. App. LEXIS 9874).



Denial Of Fee Award In Patent Case Reversed, Remanded By Federal Circuit
WASHINGTON, D.C. - A Texas federal judge's determination that a patent infringement plaintiff's decision to voluntarily withdraw its complaint within the safe-harbor period removed the dispute from the realm of an "exceptional" case, thereby extinguishing a defendant's entitlement to attorney fees, was erroneous, the Federal Circuit U.S. Court of Appeals held June 5 (Rothschild Connected Devices Innovations LLC v. ADS Security L.P., No. 16-2521, Fed. Cir., 2017 U.S. App. LEXIS 9876).



Patent Board Sides With Intel, Qualcomm In Inter Partes Review
ALEXANDRIA, Va. - In a June 2 final written decision, the Patent Trial and Appeal Board deemed seven claims of a process for fabricating semiconductor devices unpatentable as anticipated under the Patent Act, 35 U.S.C. 102(b) (Intel Corp., et al. v. DSS Technology Management Inc., No. IPR2016-00287, PTAB).



Covered Business Method Review Of Algorithm Patent Sought In New Petition
ALEXANDRIA, Va. - In a June 2 petition for covered business method (CBM) review, a petitioner alleges that a patented algorithm for encrypting confidential information during e-commerce transactions claims an ineligible, abstract idea under 35 U.S.C. 101 (Keeper Security Inc. v. Cumberland Systems LLC, No. CBM2017-00057, PTAB).



Post-Grant Review Of Camera Housing Patent Sought In New Petition
ALEXANDRIA, Va. - Various claims of a patent issued in September 2016 should be canceled, a company asserts in a June 6 petition for post-grant review (PGR) filed with the Patent Trial and Appeal Board (Axis Communications AB v. Arecont Vision LLC, No. PGR2017-00031, PTAB).



ARRIS Seeks Inter Partes Review Of Digital Broadcasting Patent
ALEXANDRIA, Va. - Three claims of a Sony Corp. patented system for supplying digital signals are unpatentable as anticipated and obvious, a June 14 petition for inter partes review with the Patent Trial and Appeal Board asserts (ARRIS International PLC, et al. v. Sony Corporation, No. IPR2017-01596, PTAB).



Patent Board Deems 15 Claims Unpatentable As Anticipated, Obvious
ALEXANDRIA, Va. - In a final written decision issued June 14, the Patent Trial and Appeal Board agreed with a petitioner that 15 claims of a patented subsea Christmas tree system for use in oil and gas wells are unpatentable pursuant to Section 102 and 103 of the Patent Act, 35 U.S.C. 1 et seq. (FMC Technologies Inc. v. OneSubsea IP UK Limited, No. IPR2016-00328, PTAB).



7th Circuit Affirms: House Plans Dissimilar, Access Not Proven
CHICAGO - A Wisconsin federal judge did not err in granting a copyright infringement defendant summary judgment in connection with allegations that it infringed four copyrighted house designs, the Seventh Circuit U.S. Court of Appeals ruled June 6 (Design Basics LLC v. Lexington Homes, Inc., No. 16-3817, 7th Cir., 2017 U.S. App. LEXIS 9985).



Illinois Federal Judge: State Law Claims Are Preempted By Copyright Act
CHICAGO - Allegations by the heir of songwriter Calvin Carter that various music publishers committed contributory and vicarious copyright infringement by licensing to third parties the performance rights to Carter's work will proceed, an Illinois federal judge ruled June 9 (Tollie Carter v. ARC/Conrad Music LLC, et al., No. 16-6786, N.D. Ill., 2017 U.S. Dist. LEXIS 88509).



Texas Magistrate Judge Primarily Rejects Effort To Dismiss Copyright Claims
AUSTIN, Texas - Allegations by a stock photography agency that McGraw-Hill Global Education Holdings LLC and McGraw-Hill School Education Holdings LLC (McGraw-Hill, collectively) exceeded the scope of their license to use certain photographs in textbooks and other publications should largely proceed, a Texas federal magistrate judge ruled June 12 (Bob Daemmrich Photography Inc. v. McGraw-Hill Global Education Holdings LLC, et al., No. 15-1098, W.D. Texas, 2017 U.S. Dist. LEXIS 89550).



New York Federal Judge Rejects Bid For Dismissal Of Copyright Claims
NEW YORK - Efforts by Justin Timberlake and other defendants to dismiss a request for copyright infringement damages occurring before Feb. 17, 2013, were denied June 13 by a New York federal judge (PK Music Performance Inc. v. Justin Timberlake, et al., No. 16-1215, S.D. N.Y., 2017 U.S. Dist. LEXIS 90562).



Copyright Claim Over Reposted Skyline Photo Dismissed Against Government Official
INDIANAPOLIS - A photographer failed to establish any individual liability against the director of a government agency related to the unauthorized posting of a copyrighted photograph, an Indiana federal judge ruled June 12, granting dismissal of infringement and unfair competition claims against the official (Richard N. Bell v. David N. Powell, et al., No. 1:16-cv-02491, S.D. Ind., 2017 U.S. Dist. LEXIS 89587).



Pennsylvania Federal Judge Denies Relief In Trademark Dispute
PHILADELPHIA - Allegations that a newly named pharmacy continues to infringe the "Rann Pharmacy" trademark despite a November 2016 injunction were rejected June 6 by a Pennsylvania federal judge (Rann Pharmacy Inc. v. Shree Navdurga LLC, et al., No. 17-1893, E.D. Pa., 2017 U.S. Dist. LEXIS 86373).



Magistrate Allows Survey Of Taffy Shop Customers In Trademark Battle
DENVER - A taffy shop may have valid complaints about a survey conducted by an expert for a competing taffy shop in a trademark dispute, but the survey is reliable and relevant enough to not preclude it from trial, a Colorado federal magistrate judge ruled June 8 (Estes Park Taffy Company, LLC, et al. v. The Original Taffy Shop, Inc., No. 15-cv-01697, D. Colo., 2017 U.S. Dist. LEXIS 88113).



DOJ Defends Seizing Of Foreign Megaupload Assets To Supreme Court
WASHINGTON, D.C. - In a June 7 brief in the U.S. Supreme Court, the U.S. Department of Justice (DOJ) opposes a petition for certiorari by former executives of the now-defunct file-sharing service Megaupload, arguing that a trial court properly deemed them fugitives and ordered seizure of their foreign-held assets in accordance with the Civil Asset Forfeiture Reform Act (CAFRA) (Finn Batato, et al. v. United States of America, No. 16-1206, U.S. Sup.).



YouTube User Says High Court Review Of DMCA Fair Use Is Needed
WASHINGTON, D.C. - In a May 19 supplemental brief in the U.S. Supreme Court, filed in response to an amicus curiae brief filed by the U.S. government, a woman whose video was removed from YouTube for purported copyright violation, argues that her petition for certiorari should be granted to ensure that the safe harbor parameters of the Digital Millennium Copyright Act (DMCA), such as fair use, "are properly construed" (Stephanie Lenz v. Universal Music Corp., et al., No. 16-217, U.S. Sup.).



Patent Term Adjustment Provision Disputed Before Federal Circuit
WASHINGTON, D.C. - In a June 7 reply brief, a patent owner told the Federal Circuit U.S. Court of Appeals that the U.S. Patent and Trademark Office (PTO)'s position that it has the authority to determine when a patent applicant has failed "to engage in reasonable efforts" to prosecute their application runs "counter to the plain language" of the Patent Act, 35 U.S.C. 1 et seq., the legislative history of the statute and Gilead Sciences, Inc. v. Lee (Supernus Pharmaceuticals Inc., et al. v. Michelle K. Lee, Director, U.S. Patent and Trademark Office, No. 17-1357, Fed. Cir.).



Venue In Declaratory Judgment Patent Actions Debated Before Federal Circuit
WASHINGTON, D.C. - In a June 2 reply brief, myriad declaratory judgment plaintiff-appellants argue that "calculated strikes" from a patent-licensing firm's "nest" unfairly impact "those accused of infringement and needlessly [tilt] the field in favor of non-practicing entities" through the encouragement of forum shopping (Jack Henry & Associates Inc., et al. v. Plano Encryption Technologies LLC, No. 16-2700, Fed. Cir.).



Obviousness Of 2 Patents Debated In Federal Circuit Briefs
WASHINGTON, D.C. - A finding by the Patent Trial and Appeal Board that two reissue patents are obvious in light of prior art was proper because the board's broadest reasonable interpretation of the disputed claim term "port" is supported by the claim language and the patent owner's own use of the term in describing its invention, myriad appellees told the Federal Circuit U.S. Court of Appeals May 26 (Capella Photonics Inc. v. Cisco Systems Inc., et al., Nos. 2016-2394, -2395, 2017-1105, -1106, -1107, -1108, Fed. Cir.).



Patent Owner, Challenger Debate Effective Filing Date Before Federal Circuit
WASHINGTON, D.C. - The effective filing date of two patents relating to an apparatus that secures a portable electronic device to an immovable object is 2008, and not 2011 as concluded by the Patent Trial and Appeal Board, a patent owner recently told the Federal Circuit U.S. Court of Appeals (Think Products Inc. v. ACCO Brands Corporation, et al., No. 17-1360, Fed. Cir.).



Riflescope Makers Debate Trade Dress Functionality In 6th Circuit
CINCINNATI - Competitors in the riflescope industry have filed briefs in the Sixth Circuit U.S. Court of Appeals, arguing whether the trade dress on the knurling of the plaintiff's scopes are ornamental, which would permit the plaintiff to pursue infringement claims against the defendants, or functional and nonprotectable, as a trial court found (Leapers Inc. v. SMTS LLC, et al., No. 17-1007, 6th Cir.).



'Guppie' Trademark Owners Argue Reverse Confusion By Viacom To 6th Circuit
CINCINNATI - A Michigan couple who sell the "Guppie Kid" children's clothing line argue in a June 14 brief in the Sixth Circuit U.S. Court of Appeals that clothing related to the Nickelodeon show "Bubble Guppies" infringed their trademarks by overwhelming their senior marks via reverse confusion (Debbie Rohn, et al. v. Viacom International Inc., et al., No. 17-1225, 6th Cir.).



Daycare Operator Defends Contempt To 4th Circuit In 'Rainbow' Trademark Row
RICHMOND, Va. - Because the defendant repeatedly failed to comply with an injunction requiring it to remove all uses of the "Rainbow" trademark from its website, a trial court properly issued contempt rulings and a monetary judgment against it, a daycare operator tells the Fourth Circuit U.S. Court of Appeals in a June 7 appellee brief (Rainbow School Inc. v. Rainbow Early Education Holding LLC, et al., Nos. 17-1055 and 17-1123, 4th Cir.).



Supreme Court: 'Reside' In Patent Venue Statute Not Amended By Congress
WASHINGTON, D.C. - Changes by Congress to the general venue statute, 28 U.S.C. 1391(c), did not modify the meaning of the patent venue statute, 28 U.S.C. 1400(b), as interpreted in Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 226 (1957), to mean that a domestic corporation "resides" only in its state of incorporation, the U.S. Supreme Court unanimously ruled May 22 (TC Heartland LLC d/b/a Heartland Food Products Group v. Kraft Foods Group Brands LLC, No. 16-341, U.S. Sup.).



Supreme Court Rules Against Lexmark, Says Patent Rights Exhausted
WASHINGTON, D.C. - In a ruling May 30, the U.S. Supreme Court found that Lexmark International Inc. exhausted its domestic and international patent rights "the moment it sold" certain refillable printer cartridges in the United States (Impression Products Inc. v. Lexmark International Inc., No. 15-1189, U.S. Sup.).



Certiorari Granted In Dispute Over Scope Of IPR Final Decisions
WASHINGTON, D.C. - A divided June 2016 ruling by the Federal Circuit U.S. Court of Appeals that the Patent Trial and Appeal Board need not address in a final written decision the patentability of all claims identified in a petition for inter partes review (IPR) will be reviewed, the U.S. Supreme Court announced May 22 (SAS Institute Inc. v. Michelle K. Lee, Director, U.S. Patent and Trademark Office and ComplementSoft LLC, No. 16-969, U.S. Sup.).



Solicitor General's Views Invited In Dispute Over Patent Lost Profits
WASHINGTON, D.C. - In its May 30 orders list, the U.S. Supreme Court called for the views of the solicitor general in a dispute over the availability of lost profits in cases where infringement is proven under the Patent Act, 35 U.S. Code Section 271(f), but where the profits arise from prohibited combinations occurring outside the United States (WesternGeco LLC v. ION Geophysical Corp., No. 16-1011, U.S. Sup.).



Twitter Prevails Before Federal Circuit In Patent Eligibility Dispute
WASHINGTON, D.C. - A New York federal judge properly granted Twitter Inc. a summary judgment that five direct message publishing patents claim ineligible subject matter, the Federal Circuit U.S. Court of Appeals ruled May 12 (EasyWeb Innovations LLC v. Twitter Inc., No. 16-2066, Fed. Cir., 2017 U.S. App. LEXIS 8436).



Federal Circuit Denies En Banc Hearing In Challenge To AIA
WASHINGTON, D.C. - A request by a patent licensee for en banc hearing of an appeal over the right of third parties to challenge patents in a petition for inter partes review (IPR) before the Patent Trial and Appeal Board was denied May 11 by the Federal Circuit U.S. Court of Appeals (Cascades Projection LLC v. Epson America Inc., et al., Nos. 17-1517, -1518, Fed. Cir., 2017 U.S. App. LEXIS 8337).



Board Erred In Prior Conception Analysis, Federal Circuit Rules
WASHINGTON, D.C. - A determination by the Patent Trial and Appeal Board that various claims of a challenged wireless hotspot patent are invalid was remanded May 31 by the Federal Circuit U.S. Court of Appeals, which found that the board improperly rejected a patent owner's assertion of prior conception (Intellectual Ventures II LLC v. Motorola Mobility LLC, No. 16-1361, Fed. Cir., 2017 U.S. App. LEXIS 9506).



Federal Circuit Affirms Exceptionality Finding, Fee Award In Patent Case
WASHINGTON, D.C. - A Delaware federal judge's award of $2.5 million in attorney fees in connection with a successful defense of an equity action alleging fraud upon the court was not an abuse of discretion, the Federal Circuit U.S. Court of Appeals ruled May 11 (NOVA Chemicals Corp., et al. v. Dow Chemical Co., No. 16-1576, Fed. Cir., 2017 U.S. App. LEXIS 8338).



New York Federal Judge Won't Reconsider Denial Of Stay In ITC Patent Case
NEW YORK - Efforts by Comcast Corp. to enjoin patent allegations pending against it before the International Trade Commission (ITC) were again unsuccessful on May 15, when a New York federal judge refused to reconsider an earlier order denying a preliminary injunction (Comcast Corporation v. Rovi Corporation, No. 16-3852, S.D. N.Y., 2017 U.S. Dist. LEXIS 73669).



Federal Circuit Cites Claim Construction, Vacates Board Ruling
WASHINGTON, D.C. - A decision by the Patent Trial and Appeal Board to deem eight claims of a spinal implant patent obvious under the Patent Act, 35 U.S.C. 103, was vacated and remanded by the Federal Circuit U.S. Court of Appeals on May 31 (In re: NuVasive Inc., No. 15-1841, Fed. Cir., 2017 U.S. App. LEXIS 9507).



Federal Circuit Affirms Invalidation Of 2 Reissue Patent Claims
WASHINGTON, D.C. - In a divided May 16 ruling, the Federal Circuit U.S. Court of Appeals found no error in a Delaware federal judge's decision to invalidate two claims of a reissue patent directed to a boron-containing steel sheet (ArcelorMittal, et al. v. AK Steel Corp., et al., No. 16-1357, Fed. Cir., 2017 U.S. App. LEXIS 8565).



New Jersey Federal Judge Transfers Copaxone Patent Case To Delaware
TRENTON, N.J. - A dispute over plans by Sandoz Inc. and Momenta Pharmaceuticals Inc. (Sandoz, collectively) to sell generic Copaxone will proceed in Delaware federal court, a New Jersey federal judge ruled May 22 (Teva Pharmaceuticals Industries Ltd. v. Sandoz Inc., et al., No. 17-275, D. N.J., 2017 U.S. Dist. LEXIS 77193).



Federal Circuit Partly Reverses Injunction In Equivalents Case
WASHINGTON, D.C. - Although a Texas federal judge erred in barring the manufacture and sale of an accused generic form of the lymph-node-mapping dye isosulfan blue (ISB) with regard to two patents, relief was proper with regard to a third patent, the Federal Circuit U.S. Court of Appeals ruled May 19 (Mylan Institutional LLC, et al. v. Aurobindo Pharma Ltd., No. 17-1645, Fed. Cir., 2017 U.S. App. LEXIS 8792).



Uber Enjoined From Using Stolen Waymo Files In Self-Driving Car Trade Secret Suit
SAN FRANCISCO - Finding "compelling evidence" that a former Waymo LLC employee misappropriated confidential files and provided them to Uber Technologies Inc., a California federal judge on May 15 granted in part Waymo's motion for a preliminary injunction, ordering Uber to cease using any of the stolen materials in the development of its self-driving car technology (Waymo LLC v. Uber Technologies Inc., et al., No. 3:17-cv-00939, N.D. Calif.).



Federal Circuit Lacks Jurisdiction In Dispute Over Prejudgment Interest
WASHINGTON, D.C. - A Nevada federal judge's decision to award Halo Electronics Inc. prejudgment interest in a patent dispute is not appealable, because a final judgment has not yet been entered in the case, the Federal Circuit U.S. Court of Appeals ruled May 26 (Halo Electronics Inc. v. Pulse Electronics Inc., No. 16-2006, Fed. Cir.).



Yahoo Seeks Covered Business Method Review Of 3 Patents
ALEXANDRIA, Va. - In three petitions for covered business method (CBM) review filed May 15 with the Patent Trial and Appeal Board, Yahoo! Inc. asserts that various claims of patents relating to targeted advertising cover ineligible subject matter (Yahoo! Inc. v. AlmondNet Inc., No. CBM2017-00050, PTAB).



Google Prevails Before Board In Consolidated Inter Partes Review
ALEXANDRIA, Va. - The Patent Trial and Appeal Board on May 17 issued a final written decision declaring seven claims of a data optimization patent unpatentable as obvious (Google Inc. v. Vedanti Systems Ltd., No. 2016-00212, PTAB).



Patent Board Rejects Claims Of Content Streaming Patent
ALEXANDRIA, Va. - Claims 1-20 of a proposed patented method for quick content channel discovery, streaming content and switching from one content stream to another with minimal latency were rejected May 18 by the Patent Trial and Appeal Board (Ex parte Mika Kuulusa, No. 2016-007047, PTAB).



Semiconductor Patent Challenged In New Inter Partes Review Petition
ALEXANDRIA, Va. - A patent covering three process categories commonly used in the fabrication of semiconductor devices would have been obvious to a person of ordinary skill in the art, a petitioner for inter partes review told the Patent Trial and Appeal Board on May 22 (SPTS Technologies Ltd. v. Plasma-Therm LLC, No. IPR2017-01457, PTAB).



Patent Board Rejects Allegation Of Anticipation
ALEXANDRIA, Va. - Arista Networks Inc. failed to persuade the Patent Trial and Appeal Board on May 25 in an inter partes review (IPR) that a single challenged patent claim fails to pass muster under the Patent Act, 35 U.S.C. 102 (Arista Networks Inc. v. Cisco Systems Inc., No. IPR2016-00306, PTAB).



California Federal Judge: Jokes Entitled To 'Thin' Copyright Protection
SAN DIEGO - Conan O'Brien and myriad other defendants associated with the "Conan" show on May 12 won a partial summary judgment that various copyrighted jokes O'Brien allegedly infringed are entitled only to "thin" protection, but in the same ruling, a California federal judge denied O'Brien summary judgment with regard to willfulness (Robert Alexander Kaseberg v. Conan O'Brien, et al., No. 15-1637, S.D. Calif., 2017 U.S. Dist. LEXIS 72921).



Federal Circuit: Patent, Copyright, Trademark Claims Properly Rejected
WASHINGTON, D.C. - A Washington federal judge did not err in rejecting allegations that Amazon.com Inc. infringes the intellectual property of others through its online marketplace and "Fulfillment by Amazon" service, the Federal Circuit U.S. Court of Appeals ruled May 23 (Milo & Gabby LLC, et al. v. Amazon.com Inc., No. 16-1290, Fed. Cir., 2017 U.S. App. LEXIS 8932).



11th Circuit Weighs In On Copyright Registration Requirement
ATLANTA - In a May 18 ruling, the 11th Circuit U.S. Court of Appeals concluded that copyright registration occurs when the Register of Copyrights registers a work, and not merely when an application for a registration is filed (Fourth Estate Public Benefit Corporation v. Wall-Street.com LLC, No. 16-13726, 11th Cir., 2017 U.S. App. LEXIS 8766).



Indiana Federal Judge Dismisses Copyright Claims Over Educational Program
FORT WAYNE, Ind. - Citing the existence of "many deficiencies" in a complaint for contributory copyright infringement, an Indiana federal judge on May 22 dismissed the action in a dispute over the "Transitioning Into Responsible Students" (TIRS) educational program (Angela Brooks-Ngwenya v. Bart Peterson, et al., No. 16-193, N.D. Ind., 2017 U.S. Dist. LEXIS 77007).



Artist's Wife's Testimony Excluded As Unreliable In Copyright Infringement Case
ATLANTA - A restaurant owner was awarded summary judgment in Georgia federal court on May 18 on an artist's copyright infringement claims over a drawing he did of the restaurant, with the artist also losing his bid to have his wife testify as an expert witness (Floyd Anthony Fey v. Panacea Management Group LLC, et al., No. 1:16-cv-2851, N.D. Ga., 2017 U.S. Dist. LEXIS 75637).



New York Federal Judge Sides With Copyright Defendants In Music Row
NEW YORK - Myriad copyright infringement defendants won a summary judgment on May 30 from a New York federal judge that any liability for their appropriation of a spoken-word criticism of non-jazz music is barred by the doctrine of fair use (The Estate of James Oscar Smith, et al. v. Cash Money Records Inc., No. 14-2703, S.D. N.Y., 2017 U.S. Dist. LEXIS 82240).



9th Circuit Sides With Google In Genericide Dispute
SAN FRANCISCO - An Arizona federal judge did not err in concluding that a plaintiff failed to establish that the primary significance of the word "google" to the relevant public is as a generic name for internet search engines, instead of as a trademark identifying the Google Inc. search engine in particular, the Ninth Circuit U.S. Court of Appeals ruled May 16 (David Elliott and Chris Gillespie v. Google Inc., No. 15-15809, 9th Cir., 2017 U.S. App. LEXIS 8583).



Counterclaims, Defenses Dismissed In Trademark Dispute Over Cup Design
CHICAGO - Trademark infringement plaintiff Solo Cup Operating Corp. on May 17 won dismissal of counterclaims that Solo's complaint is preempted by the Patent Act, 35 U.S.C. 1 et seq., when an Illinois federal judge agreed that a product configuration disclosed in an expired utility patent can nonetheless be entitled to trade dress protection (Solo Cup Operating Corporation v. Lollicup USA Inc., No. 16-8041, N.D. Ill., 2017 U.S. Dist. LEXIS 74922).



Florida Federal Judge Allows Damage Request To Proceed In Unfair Competition Case
FORT PIERCE, Fla. - Efforts by myriad defendants to obtain partial summary judgment in connection with allegations they used deceptive sales pitches while selling security services door-to-door were largely rejected May 17 by a Florida federal judge, who agreed only with the defendants' claim that plaintiffs ADT LLC and ADT US Holdings Inc. may not seek attorney fees in the matter (ADT LLC, et al. v. Alarm Protection LLC, et al., No. 15-80073, S.D. Fla., 2017 U.S. Dist. LEXIS 75046).



Indiana Federal Judge Dismisses Franchise Fraud Claims Against Publisher
INDIANAPOLIS - An Indiana federal judge on May 16 granted third-party defendants' motion to dismiss franchise fraud claims against them in a trademark infringement case, saying counterclaimants failed to plead their claim with sufficient particularity (Britt Interactive LLC, et al. v. A3 Media LLC, et al., No. 1:16-cv-02884, S.D. Ind., 2017 U.S. Dist. LEXIS 73945).



New York Federal Judge Says Trademark Complaint States Claim For Relief
NEW YORK - A New York federal judge on May 16 denied a defendant restaurateur's motion to dismiss a complaint that its use of trademarks infringes a pizza franchisor's trademark that predates the restaurateur's mark, finding that the complaint states a claim upon which relief can be granted (I.O.B. Realty Inc. v. Patsy's Brand Inc., et al., No. 1:16-cv-7682, S.D. N.Y., 2017 U.S. Dist. LEXIS 74108).



Judge Denies Preliminary Injunction Request In Trade Dress, Trade Secrets Suit
BROOKLYN, N.Y. - A federal judge in New York on May 10 denied stainless steel and silver-plated dinnerware designer and seller Oneida Group Inc.'s motion for preliminary injunction in a trade dress infringement and misappropriation of trade secrets lawsuit, ruling that Oneida failed to show that it owns the trade dress at issue (The Oneida Group Inc. v. Steelite International U.S.A. Inc., et al., No. 17-0957, E.D. N.Y., 2017 U.S. Dist. LEXIS 71438).



California Federal Judge Sides With Plaintiff In Trademark Case
LOS ANGELES - A dispute between competing car clubs over the "Stylistics" trademark was resolved in favor of a plaintiff on May 23, when a California federal judge awarded summary judgment (Gilbert Lerma Jr. v. Ernie Armijo, et al., No. 15-9953, C.D. Calif., 2017 U.S. Dist. LEXIS 77575).



Trademark, Copyright Defendants Awarded $922,309 In Attorney Fees
LOS ANGELES - A trademark and copyright dispute over the phrase "Life is Beautiful" rejected on summary judgment due to a lack of similarity and a plaintiff's unclean hands yielded a $922,309 attorney fee award on May 23 by a California federal judge (Amusement Art LLC v. Life is Beautiful LLC, et al., No. 14-8290, C.D. Calif., 2017 U.S. Dist. LEXIS 79135).



Federal Circuit Remands For Redetermination Of Mark Cancellation Petition
WASHINGTON, D.C. - A rejection by the Trademark Trial and Appeal Board (TTAB) of a petition for cancellation of the "Alec Bradley Star Insignia" trademark was vacated and remanded by the Federal Circuit U.S. Court of Appeals on May 24 (Joseph Phelps Vineyards LLC v. Fairmont Holdings LLC, No. 16-1089, Fed. Cir., 2017 U.S. App. LEXIS 9006).



Oracle, Google Square Off Before Federal Circuit In Fair Use Appeal
WASHINGTON, D.C. - A California federal jury's finding in May 2016 that Google Inc.'s incorporation of the Java structure, sequence and organization (SSO) in its Android operating system was a fair use was proper and should not be disturbed, Google told the Federal Circuit U.S. Court of Appeals on May 22 (Oracle America Inc. v. Google Inc., Nos. 17-1118, -1202, Fed. Cir.).



'Used' Digital Music Seller Tells 2nd Circuit It Makes No Infringing Copies
NEW YORK - In a May 19 reply brief in the Second Circuit U.S. Court of Appeals, a digital music reseller insists that it does not make infringing copies of "used" music files that it purchases from users of its service, asking the court to vacate a copyright infringement liability judgment against it (Capitol Records LLC, et al. v. ReDigi Inc., et al., No. 16-2321, 2nd Cir.).



Sony Defends Attorney Fees To 1st Circuit In Dispute Over Ricky Martin Song
BOSTON - In a May 24 appellee brief to the First Circuit U.S. Court of Appeals, Sony Corporation of America argues that a trial court properly deemed it the prevailing party and awarded it attorney fees in a songwriter's copyright infringement suit, in light of an arbitration clause that precluded the plaintiff from bringing such a suit (Luis Adrian Cortes-Ramos v. Sony Corporation of America, et al., No. 16-2441, 1st Cir.).



Songwriter Asks High Court To Review Authorship Dispute Over Usher Song
WASHINGTON, D.C. - A man who claims that he did not receive proper co-writing credit for a song that was adapted and recorded by recording artist Usher (a/k/a Usher Terry Raymond IV) filed a petition for certiorari on May 1, asking the U.S. Supreme Court to find that he was wrongly denied a determination of authorship by a trial court and an appeals court (Daniel Marino v. Usher [a/k/a Usher Terry Raymond IV], et al., No. 16-1332, U.S. Sup.).



VirnetX Appeals To Federal Circuit, Disputes Prior Art Ruling By Board
WASHINGTON, D.C. - A finding by the Patent Trial and Appeal Board that prior art qualified as a "printed publication" within the meaning of the Patent Act, 35 U.S.C. 102(b), came under fire in a recent brief filed with the Federal Circuit U.S. Court of Appeals (VirnetX Inc. v. Apple Inc., Nos. 2017-1131, -1132, -1186, -1274, -1275, -1276, -1291, Fed. Cir.).



In Remand Briefs, Apple, Samsung Debate Scope Of Design Patent Infringer Profits
SAN JOSE, Calif. - In remand briefs filed May 12 in California federal court, Apple Inc. and Samsung Electronics Co. Ltd. argue over whether a $399 infringer's profits award related to smartphone design patents should stand or whether the U.S. Supreme Court's ruling on the "article of manufacture" theory of infringement merits a new trial to determine the portion of Samsung's profits directly attributable to the infringing components (Apple Inc. v, Samsung Electronics Co. Ltd., et al., No. 5:11-cv-01846, N.D. Calif.).



Board Improperly Invalidated Media Sharing Patents, Owner Tells Court
WASHINGTON, D.C. - In a May 26 reply brief, the owner of two patents directed to sharing digital images and video argued that efforts by Google Inc. and Samsung Electronics Inc. to "justify" an erroneous finding of invalidity by the Patent Trial and Appeal Board of two patents relating to digital media sharing are "long on rhetoric but short in support" (Summit 6 LLC v. Google Inc. et al., Nos. 17-1184, -1185, Fed. Cir.).



Appellee Tells Federal Circuit: Patents Properly Confirmed As Obvious
WASHINGTON, D.C. - Final written decisions by the Patent Trial and Appeal Board that rejected assertions by Medtronic Inc. that two patents directed to methods and systems for ameliorating aberrant spinal column deviations are unpatentable should stand, an inventor told the Federal Circuit U.S. Court of Appeals on May 16 (Medtronic Inc. v. Mark A. Barry, Nos. 17-1169, Fed. Cir.).



'Get Lucky' Jeans Maker Tells 2nd Circuit Rival Violated Prior Trademark Ruling
NEW YORK - On a third appeal to the Second Circuit U.S. Court of Appeals over rival clothing manufacturers' claims to the "Get Lucky" trademark, Marcel Fashions Group Inc. in its May 5 appellant brief argues that a competitor has continued its infringing conduct in violation of a previous judgment and that a trial court judge erred in deeming the present claims barred by a 2003 settlement agreement between the parties (Marcel Fashions Group Inc. v. Lucky Brand Dungarees Inc., et al., No. 17-0361, 2nd Cir.).



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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