Bryan Wheelock

Bryan Wheelock

Harness, Dickey & Pierce, PLC

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A Combination of References Can be Obvious Even if it Requires a Bit of Work

In Allied Erecting v. Genesis Attachments, LLC, [2015-1533] (June 15, 2016), the Federal Circuit affirmed the PTAB’s decision in IPR2014-001006 that claims 1–21 of U.S. Patent No. 7,121,489, were obvious. Allied first...more

6/17/2016 - Inter Partes Review Proceedings Obviousness Patent Litigation Patent Trial and Appeal Board Patents Prior Art

Board Not Limited to Prior Art in the Grounds, as Long as Patent Owner Had Notice

In Genzyme Therapeutic Products Limited v. Biomarin Pharmaceutical, Inc., [2015-1720, 2015-1721](June 14, 2016), the Federal Circuit affirmed the PTAB’s decisions in IPR2013-00534 and IPR2013-00537 that certain claims of ...more

6/16/2016 - Administrative Procedure Act Due Process Evidence Final Judgment Inter Partes Review Proceedings Obviousness Patent Invalidity Patent Litigation Patent Trial and Appeal Board Prior Art

Is the Inevitable Disclosure Doctrine Inevitable?

An important feature of the recently enacted Defense of Trade Secrets Act was that it left state trade secret law intact. This meant that states that had adopted the Inevitable Disclosure Doctrine could continue to apply it,...more

6/16/2016 - Defend Trade Secrets Act (DTSA) Inevitable Disclosure Doctrine Injunctive Relief Intellectual Property Protection Misappropriation State Law Claims Trade Secrets Uniform Trade Secrets Acts

The Board Cannot Adopt a Surprise Claim Construction

In SAS Institute, Inc. v. Complementsoft,LLC, [2015-1346, 2015-1347] (June 10, 2016), the Federal Circuit agree with the Board in an IPR involving U.S. Patent No. 7,110,936 on all of the challenged constructions resulting in...more

6/13/2016 - Broadest Reasonable Interpretation Standard Claim Construction Inter Partes Review Proceedings Patent Invalidity Patent Litigation Patent Trial and Appeal Board Remand Vacated

And That’s Final . . .

A second Office Action on the merits should be final, except where the examiner introduces a new ground of rejection that was not necessitated by either amendment or an information disclosure statement. This is in accord...more

6/13/2016 - Administrative Proceedings Examiners Final Judgment Judgment on the Merits MPEP Patent Applications Patent Litigation Patents

Patent Applicants: Anything You Say Can and Will Be Used Against You in a Court of Law

In Indacon, Inc. v, Facebook, Inc., [2015-1129] (June 6, 2016), the Federal Circuit affirmed the district court’s claim construction, leaving intact the parties stipulation of non-infringement based upon that...more

6/13/2016 - Claim Construction Facebook Noninfringement Patent Litigation Patents Stipulations

Incorrect Position on Infringement is not a Defense to Inducement

In Warsaw Orthopedic, Inc. v. NuVasive, Inc., [2013-1576, 2013-1577] (June 3, 2016), on vacatur and remand from the Supreme Court (for further consideration in light of Commil) the Federal Circuit reaffirmed its the district...more

6/7/2016 - Cisco v CommilUSA Claim Construction Determination on Remand Induced Infringement Noninfringement Patent Infringement Patent Litigation Willful Blindness

Federal Circuit Skewers Trademark Applicant

In In re Cordua Restaurants, Inc., [2015-1432] (May 13, 2016), the Federal Circuit affirmed the refusal of registration of the stylized mark CHURRASCOS for restaurant services on the ground that term is...more

6/3/2016 - Appeals Generic Trademark Application Trademark Litigation Trademark Registration Trademark Trial and Appeal Board Trademarks

Entitled to Narrow Claim Construction

In Ruckus Wireless, Inc. v. Innovative Wireless Solutions, LLC, [2015-1425, 2015-1438] (May 31, 2016), the Federal Circuit agreed that the claim term “communications path” did not include wireless communications paths, in...more

6/2/2016 - Claim Construction Hewlett-Packard Patent Litigation Patents

Canons of Claim Construction to the Rescue

In Ruckus Wireless, Inc. v. Innovative Wireless Solutions, LLC, [2015-1425, 2015-1438] (May 31, 2016), the Federal Circuit affirmed the district court’s claim construction and resulting judgment of non-infringement. At...more

6/2/2016 - Claim Construction De Novo Standard of Review Extrinsic Evidence Noninfringement Patent Litigation Patent Validity

Applicant Cannot Bypass the PTAB to get to Federal Circuit

In In re Arunachalam, [2016-1560] (May 27, 2016), the Federal Circuit dismissed Arunachalam direct appeal to the Federal Circuit from the final rejection of his claims in prosecution following a new ground of rejection...more

5/31/2016 - Appeals Final Judgment Jurisdiction Patent Applications Patent Litigation Patent Trial and Appeal Board Patents USPTO

Consistent Usage and Disclaimer in Intrinsic Record Trump Anything in Extrinsic Record

In David Netzer Consulting Engineer LLC, v. Shell Oil Company, [2015-2086] (May 27, 2016), the Federal Circuit affirmed summary judgment of non-infringement of U.S. Patent 6,677,496 on a process for the coproduction of...more

5/31/2016 - Claim Construction De Novo Standard of Review Disclaimers Doctrine of Equivalents Extrinsic Evidence Noninfringement Patent Litigation Summary Judgment

“Mountable” Given Meaning Consistent with Specification, and Not Broad Dictionary Definition

In Profectus Technology LLC v. Huawei Technologies Co. Ltd., [2015-1016, 2015-1018, 2015-1019] (May 26, 2016), the Federal Circuit affirmed the district court’s construction of “mountable,” and thus summary judgment of...more

5/27/2016 - Claim Construction Noninfringement Patent Litigation Patents Summary Judgment

Patent Owner Must Show Patentability Over Art of Record to Amend Claims in IPR

In In re Aqua Products, Inc., [2015-1177] (May 25, 2016), the Federal Circuit affirmed the PTAB’s denial of the patent owner’s motion to amend in IPR2013-00159. The Federal Circuit made quick work of the PTAB’s placing...more

5/27/2016 - Abuse of Discretion Administrative Procedure Act Burden of Proof Inter Partes Review Proceedings Motion to Amend Patent Litigation Patent Trial and Appeal Board Prior Art

Jurisdiction Cannot Be Cured Retroactively If Plaintiff Lacked Substantial Rights to Patent When Suit Was Filed

In Diamond Coating Tech. v. Hyundai Motor, [2015-1844, 2015-1861] (May 17, 2016), the Federal Circuit affirmed the dismissal of a patent infringement action for lack of standing. The Federal Circuit agreed that Diamond...more

5/26/2016 - Dismissals Hyundai IP Assignment Agreements IP License Jurisdiction Nunc Pro Tunc Patent Infringement Patent Litigation Retroactivity Standing

Reflecting on Design Patents

Often the appearance of an article is attributable to the nature of the surface as much as its shape. Reflective surfaces are often depicted in design patent drawings as parallel lines...more

5/12/2016 - Design Patent Patent Applications Patent Litigation Written Descriptions

Federal Circuit Affirms Exclusion of IPR Reply that Raised New Grounds of Invalidity

In Intelligent Bio-Systems, Inc., v, Illumina Cambridge Ltd., [2015-1693] (May 9, 2016), the Federal Circuit affirmed the PTAB’s Final Written decision that the challenged claims of U.S. Patent No. 7,566,537, directed to a...more

5/10/2016 - Corporate Counsel Inter Partes Review Proceedings Obviousness Patent Invalidity Patent Litigation Patent Trial and Appeal Board Prior Art Scope of the Claim Substantial Evidence Standard

Venue for Patent Infringement Cases is Well Established; a Corporate Defendant can be Sued Wherever it Can be Found

In In re TLC Heartland LLC, [2016-0105] (April 29, 2016), the Federal Circuit denied Heartland petition for mandamus directing the District of Delaware to either dismiss or transfer the patent infringement suit brought by...more

5/3/2016 - Kraft Mandamus Petitions Patent Infringement Patent Litigation Personal Jurisdiction Venue

An Illuminating Discussion About Design Patents

Design patents protect the aesthetic appearance of a product or portion of the product. The aesthetic appearance is affected by a number of things, including whether the product is illuminated. However, how does one capture...more

5/3/2016 - Aesthetic Functionality Design Patent Patent Applications Patents Popular USPTO Written Descriptions

Principles of Equity: Denying Inventors their Constitutionally Promised Exclusivity

Article I, Section 8, Clause 8 of the United States Constitution, empowers the United States Congress: - ..To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the...more

5/2/2016 - Confidentiality Agreements Exclusivity Irreparable Harm Patent Infringement Patent Litigation Patent Ownership Patent Royalties Permanent Injunctions Trade Secrets Willful Infringement

An Infringement, Divided, May Stand After All

In Mankes v. Vivid Seats Ltd., [2015-1500, 2015-1501, 2015-1909] (April 22, 2016), the Federal Circuit vacated judgment on the pleadings against Mankes, and remanded for further proceedings in light of Akamai IV. The...more

4/25/2016 - Limelight v Akamai Noninfringement Patent Infringement Patent Litigation Remand SCOTUS Vacated

It’s Not the Broadest Reasonable Interpretation, but the Broadest Reasonable Interpretation in Light of the Specification

In In re Man Machine Interface Tech. LLC, [2015-1562] (April 19, 2016), the Federal Circuit affirmed-in-part, reversed-in-part, vacated-in-part, and remanded the PTAB’s affirmance of the rejection of claims of U.S. Patent No....more

4/25/2016 - Anticipation Broadest Reasonable Interpretation Standard Claim Construction Ex Partes Reexamination Patent Litigation Patent Trial and Appeal Board Prior Art Reversal Written Descriptions

It is Error to Ignore Functional Structures Entirely in a Design Patent Construction

In Sport Dimension, Inc. v. The Coleman Company, [2015-1553] (April 19. 2016) the Federal Circuit vacated the stipulated judgment of non-infringement of U.S. Patent No. D623,714 on a personal flotation device, and remanded...more

4/21/2016 - Claim Construction Design Patent Functionality Noninfringement Patent Litigation Remand Stipulated Judgment Vacated

Discoveries Are Not Patentable.

In Genetic Technologies Limited v. Merial LLC. [2015-1202, -1203] (April 8, 2016) the Federal Circuit affirmed the district court dismissal for failure to state a claim and entry of final judgment that claims 1–25 and 33–36...more

4/11/2016 - CLS Bank v Alice Corp Dismissals DNA Failure To State A Claim Federal Rule 12(b)(6) Genetic Technologies Ltd. Mayo v. Prometheus Patent Litigation Patent-Eligible Subject Matter Popular SCOTUS

An Animated Review of Design Patents

Design patents protect the appearance of articles of manufacture, and this includes articles of manufacture whose appearance changes over time. In particular, animated displays on computers and other electronic devices can...more

4/9/2016 - Animation Design Patent Manufacturers Patent Applications Patent Litigation Patents

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