Bryan Wheelock

Bryan Wheelock

Harness, Dickey & Pierce, PLC

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Two Bits, Four Bits, Six Bits, a Dollar, Cheer Uniforms are Copyrightable, Stand Up and Holler!

In Star Athletica, LLC v. Varsity Brands, Inc., (2017), the Supreme Court affirmed the Sixth Circuit that the two dimensional designs appearing on the surface of Varsity’s cheerleader uniforms were copyrightable....more

3/27/2017 - Cheerleaders Copyright Copyright Infringement Fashion Design Fashion Industry Graphic Designs SCOTUS Section 101 Separability Sports Apparel Star Athletica v Varsity Brands The Copyright Act Uniforms Utilitarian Function

Three Stripes and You’re Out

On March 17, Adidas American, Inc. sued Juicy Couture, Inc., in the District of Oregon (3:17-cv-00437), alleging trademark infringement, unfair competition, trademark dilution, deceptive trade practices, and breach of...more

3/24/2017 - Adidas Dilution Fashion Design Fashion Industry Likelihood of Confusion Trademark Bullying Trademark Infringement Trademarks Unfair Competition

To The Relief of Sergeants Everywhere, Forever 21 Challenges Adidas’ Three Stripe Marks

On March 3, Forever 21, Inc. sued Adidas American, Inc. in the Central District of California (2:17-cv-01752), asking for a declaration that its clothing decorated with stripes does not infringe Adidas’ trademarks, and...more

3/23/2017 - Adidas Declaratory Relief Fashion Design Fashion Industry Trademark Bullying Trademark Infringement Trademark Litigation Trademarks

Oh Diehr Me, Another Case With Patent Eligible Subject Matter

In Thales Visionix, Inc., v. U.S., [2015-5150] (March 8, 2017), the Federal Circuit reversed the U.S. Court of Federal Claims (“Claims Court”) determination that the claims of U.S. Patent No. 6,474,159 were directed to patent...more

3/20/2017 - Abstract Ideas Appeals CLS Bank v Alice Corp Court of Federal Claims Patent-Eligible Subject Matter Patents Reversal

It Was Over Before the Fat Lady Sang; Collateral Estoppel Applies to Partial Summary Judgment under §101

In Intellectual Ventures I LLC v. Capital One Financial Corp., [2016-1077] (March 7, 2017), the Federal Circuit affirmed judgment that all claims of U.S. Patent Nos. 7,984,081 and 6,546,002 are ineligible under 35 U.S.C. §...more

3/15/2017 - Appeals CLS Bank v Alice Corp Collateral Estoppel Mayo v. Prometheus Patent Invalidity Patent Litigation Patent-Eligible Subject Matter Patents Reaffirmation Section 101 Summary Judgment

Complaints About Claim Construction Irrelevant Without a Showing of How it Would Make a Difference

In Comcast IP Holdings I LLC v. Sprint Communications Company LP, [2015-1992] (March 7, 2017) the Federal Circuit affirmed a $7.5 million dollar award for infringement of U.S. Patent Nos. 8,170,008, 7,012,916 and 8,204,046...more

3/13/2017 - Appeals Claim Construction Comcast Evidence Patent Infringement Patents Sprint

Prior Art Preference for an Alternative is Not Enough to Teach Away

In Meiresonne v. Google, Inc., [2016-1755] (March 7, 2017), the Federal Circuit affirmed the PTAB determination that claims 16, 17, 19 and 20 of U.S. Patent No. 8,156,096 on a system whereby a user can identify a supplier of...more

3/13/2017 - Appeals Obviousness Patent Invalidity Patent Litigation Patent Trial and Appeal Board Patents Prior Art

IPR – The Odds Still Favor Petitioners, and Greatly Favor Smart Petitioners

The USPTO’s most recently published IPR statistics show that the odds still greatly favor the patent challenger...more

3/10/2017 - Inter Partes Review (IPR) Proceeding Patents

Don’t Take Your Eye Off the Ball or Your Patent Assignment Will End Up in the Dirt

In Intellectual Ventures I LLC v. Erie Indemnity Company, [2016-1128, 2016-1132] (March 7, 2017), the Federal Circuit affirmed in part, vacated in part, and remanded in part the district court’s decision finding all claims of...more

3/10/2017 - Abstract Ideas Appeals IP Assignment Agreements Patent Applications Patent-Eligible Subject Matter Patents Section 101 Standing

Trademark Scammers Abound

There are still a number of entities out there trying to trick trademark owners into spending money to list their marks in various on line and print directories by sending official looking invoices and other paperwork. In...more

3/8/2017 - Domain Names Scams Trademark Registration Trademarks

Fictional Magazine Accused of Real Infringement

The Sporting Times LLC has sued Orion Pictures, inc., Metro-Goldwyn-Mayer Studios, Inc., and others because of the depiction of a publication titled The Sporting Times in trailers for, and in the actual movie, Spaceman — a...more

3/7/2017 - Movies Online Magazines Sports Trademark Infringement Trademarks Young Lawyers

Disavowal is Not Limited to What is Necessary; A Patentee May Give Up More than Necessary

In Technology Properties Limited LLC v. Huawei Technologies Co., Ltd., [2016-1306, 2016-1307, 2016-1309, 2016-1310, 2016-1311] (March 3, 2017), the Federal Circuit vacated and remanded the case because the district court...more

3/6/2017 - Appeals Claim Construction Patent Prosecution Patents Remand Vacated

All Trade Secrets Must Be Secret; But Not All Secrets are Trade Secrets

A pair of recent cases illustrate two important interrelated points about trade secret law: First, all trade secrets must be secret. Second, and less obvious, not all secrets are trade secrets....more

3/1/2017 - Appeals Breach of Contract Confidential Information Jury Verdicts Misappropriation Non-Disclosure Agreement Public Information Reversal Successor Liability Trade Secrets

Covered Business Method Patent: You Keep Using Those Words … We do not Think They Mean What You Think They Means

In Secure Access, LLC v. PNC BANK NATIONAL ASSOCIATION, [2016-1353] (February 21, 2017), the Federal Circuit vacated the Board’s decision in CBM2014-00100 on the ground that U.S. Patent No. 7,631,191 on a “system and method...more

2/27/2017 - America Invents Act Covered Business Method Patents Covered Business Method Proceedings Financial Products Patent Litigation Patent Trial and Appeal Board Patents Websites

The Song says 2 out of 3 Ain’t Bad; The Supreme Court says 1 is not “Substantial”

In Life Technologies Corp. v. Promega Corp. [14-1538] (February 22, 2017), the Supreme Court reversed a Federal Circuit decision that supplying a single component of a multi-component invention from the United States is an...more

2/27/2017 - Appeals Component Parts Doctrine Cross-Border Transactions Exports Extraterritoriality Rules JMOL Jury Verdicts Life Technologies v Promega Manufacturer Liability Motion to Set Aside the Verdict Patent Infringement Patents Reversal SCOTUS The Patent Act

Hindsight Cannot be the Thread that Stitches the Prior Art Patches into the Claimed Invention

In Metalcraft of Mayville, Inc., v. The Toro Company, [2016-2433, 2016-2514] (February 16, 2017), the Federal Circuit affirmed a modified preliminary injunction against Toro’s continued infringement of U.S. Patent No....more

2/23/2017 - Appeals Obviousness Patent Infringement Patent Validity Patents Preliminary Injunctions Prior Art

Someone Forgot to Tell the PTAB That There is No IPR Estoppel

In Great West Casualty Co. v. Intellectual Ventures II LLC, [IPR2016-01534] (February 15, 2017), the PTAB declined to institute an IPR because petitioners were estopped by their prior challenge to U.S. Patent No. 7,516,177....more

2/22/2017 - Estoppel Inter Partes Review (IPR) Proceeding Patent Trial and Appeal Board Patents

Presidents Day Patents

Thomas Jefferson is the president most closely associated with the patents, although Abraham Lincoln is the only president to actually receive a patent. President’s day was established in 1885 in recognition of President...more

2/20/2017 - Patents

Just Because One Could Doesn’t Mean One Would

In Personal Web Technologies, LLC v. Apple, Inc., [2016-1174] (February 14, 2017), the Federal Circuit affirmed the Board’s claim construction but vacated the Board’s obviousness determination because the Board did not...more

2/20/2017 - Appeals Claim Construction Obviousness Patent Trial and Appeal Board Patents Prior Art Reaffirmation Vacated

I ♥ Patents

The technology documented by the U.S. patent collection has information relevant to every human endeavor, and Valentine’s Day is no exception. Consider the following patents on solutions to the vexing problems presented by...more

2/17/2017 - Patents Valentine's Day

The Removal of Matter from the Provisional Application is Significant to the Interpretation of the Claims in the Non-Provisional...

In MPHJ Technology Investments, LLC. v. Ricoh Americas Corp., [2016-1243] (February 13, 2016), the Federal Circuit affirmed the PTAB decision that claims 1-8 of U.S. Patent No. 8,488,173 were invalid on the grounds of...more

2/17/2017 - Anticipation Appeals Obviousness Patent Trial and Appeal Board Patents Prior Art Provisional Applications

Strong Presumption that Markush Claim Elements are Closed to Additional Elements

In Shire Development. LLC v. Watson Pharmaceuticals, Inc., [2016-1785] (February 10, 2017), the Federal Circuit reversed a finding of infringement because the accused product did not meet the Markush claim element, and...more

2/14/2017 - Appeals Noninfringement Patent Infringement Patents Reversal

It’s a Grand Old Flag, but Should it Be in Your Ad?

United States Statutes purport to restrict the use made of the American flag. 4 USC § 8 – Respect for Flag - No disrespect should be shown to the flag of the United States of America; the flag should not be dipped...more

2/13/2017 - Advertising American Flag Patents Trademarks Uniforms

Demand Letters Protected by the Noerr-Pennington Doctrine

In Silverhorse Racing LLC v. Ford Motor Co., [Civ. Action No. 6:16-cv-00053] (M.D.Fla. January 30, 2017), the Court granted Ford Summary Judgment that the act of sending Demand Letters to Silverhorse’s distributors was...more

2/8/2017 - Civil Liability Demand Letter Distributors Noerr-Pennington Doctrine Patents Sham Litigation Exception

Getting a Copyright Registration in Advance Not Only Speeds Enforcement, but it Improves Your Remedies

On January 23, 2017, Forever 21, Inc. sued C Luce, Inc. and Cornerstone Apparel, Inc. for copyright infringement, selling copies of Forever 21’s Ikat Harem Patent. Nothing remarkable in the story so far, but was is...more

2/8/2017 - Copyright Copyright Infringement Copyright Registration Remedies

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