Bryan Wheelock

Bryan Wheelock

Harness, Dickey & Pierce, PLC

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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

Selecting a Mark

While branding is important, selecting a mark for a new business can occupy a disproportionate amount of management’s time and the company’s resources, and present significant risks to the business....more

2/6/2017 - Confusingly Similar Corporate Branding Federal Trademark Register Likelihood of Confusion Trade Names Trademark Application Trademark Searches Trademarks

Communication of an Idea that Makes the Claimed Invention Obvious is Not Enough to Show Derivation

In Cumberland Pharmaceuticals, Inc.v. Mylan Institutioal LLC, [2016-1155, 2016-1259] (January 26, 2017) the Federal Circuit affirmed the district court holding that U.S. Patent No. 8,399,445, which describes and claims...more

2/2/2017 - Appeals Derivation Proceeding FDA Inventors Obviousness Patent Litigation Patents Reaffirmation

Are All Troll Cases Exceptional?

In Iris Connex, LLC, v. Dell, Inc., [2:15-cv-1915-JRG] (January 25, 2016), District Judge Gilstrap, after granting summary judgment to Dell, awarded attorneys fees, noting Dell’s arguments that Iris Connex’s claim...more

2/1/2017 - Attorney's Fees Claim Construction Dell Discovery Fee-Shifting Frivolous Lawsuits Joint and Several Liability Patent Infringement Patent Trolls Patents Sanctions Shell Corporations Summary Judgment

It’s a Good Idea to Actually Own the Patents you Sue on

In National Oilwell Varco, L.P. v. Omron Oilfield and Marine, Inc., [2015-1406] (January 25, 2017), in a non-precedential opinion, the Federal Circuit affirmed the dismissal of claim for infringement of U.S. Patent No....more

1/31/2017 - Contract Terms Dismissals Patent Infringement Patents Standing

Instructions Induced Prescribing Physicians to Infringe

In Eli Lilly and Company v. Teva Parenteral Medicines, Inc., [2015-2067] (January 12, 2017), the Federal Circuit affirmed judgment of inducement of infringement of U.S. Patent No. 7,772,209, and that the the asserted claims...more

1/18/2017 - Appeals Double Patent Eli Lilly Indefiniteness Induced Infringement Method Claims Obviousness Patent Validity Patents Teva Pharmaceuticals

An IPR Does Not Necessarily Have Standing to Appeal if it Loses

In Phigenix, Inc. v. ImmunoGen, Inc., [2016-1544] (January 9, 2017), the Federal Circuit held that Phigenix, the losing petitioner in an IPR, lacked standing to appeal the PTAB’s decision that claims 1–8 of U.S. Patent No....more

1/12/2017 - Appeals Article III Burden of Production Dismissals Injury-in-Fact Inter Partes Review (IPR) Proceeding Judicial Review Patent Litigation Patent Trial and Appeal Board Patents Standing

When it’s Over, it’s Over

In Walker v. Health International Corp., [2015-1676] (January 6, 2017), the Federal Circuit affirmed the district court’s award of sanctions for vexatious actions in continuing to litigate after the parties settled all...more

1/12/2017 - Appeals Attorney's Fees Double Recovery Frivolous Lawsuits Litigation Fees & Costs Patent Infringement Patents Reaffirmation Sanctions Settlement

Louis Vuitton Left Holding the Bag

In Louis Vuitton Malletier S.A. v. My Other Bag, Inc., [16-241-cv] (December 22, 2016), the Second Circuit affirmed summary judgment for My Other Bag that its parody bag did not infringe or dilute Louis Vuitton’s trademark...more

12/30/2016 - Appeals Copyright Copyright Infringement Fair Use Fashion Branding Louis Vuitton Parody Reaffirmation Summary Judgment Trade Dress Trademark Infringement Trademarks Transformative Use

Scams, The Biggest Threat to Patent and Trademark Owners

After threading the tortuous path through the U.S. Patent and Trademark Office, and withstanding assaults of infringers, who would have thought that one of the biggest problems for patent and trademark owners is scammers? ...more

12/28/2016 - DOJ Guilty Pleas Intellectual Property Protection Patent Applications Patent Ownership Patents Scams Solicitation Trademark Ownership Trademarks USPTO

Broadest Reasonable Interpretation Does Not Include Legally Incorrect Interpretation

In D’Agostino v. Mastercard International, Inc., [2016-1592, 2016-1593] (December 22, 2016), the Federal Circuit vacated the PTAB’s decision in two Inter Partes Reviews that the challenged claims in U.S. Patent Nos. 7,840,486...more

12/27/2016 - Appeals Broadest Reasonable Interpretation Standard Claim Construction Inter Partes Review (IPR) Proceeding Patent Litigation Patent Trial and Appeal Board Patents

Biting the Bulleit

In a complaint recently filed in the Southern District of New York (16 CV 09747), Diageo North America, Inc., makers of BULLEIT bourbon sued Sazerac Company, Inc., alleging that Sazerac’s DR. MCGILLICUDDY’S HONEY WHISKEY...more

12/23/2016 - Dilution Trade Dress Trademark Infringement Trademark Registration Trademarks Unfair Competition Unfair or Deceptive Trade Practices Wine & Alcohol

When Imitation Goes Beyond Flattery

In a lawsuit filed in the Eastern District of Missouri today, Energizer Brands complained about Spectrum Brands’ “imitation” of its packaging, raising claims of trade dress infringement, false designation of origin, unfair...more

12/22/2016 - Copyright Copyright Infringement Copyright Registration Dilution False Designation of Origin Likelihood of Confusion Remedies Trade Dress Trademark Infringement Unfair Competition

Invention Must Inevitably Result to be Anticipated by Inherency

In U.S. Water Services, Inc., v. Novozymes A/S, [2015-1950, 2015-1967] (December 15, 2016), the Federal Circuit vacated summary judgment of anticipation and affirmed the denial of summary judgment of no inequitable conduct....more

12/21/2016 - Anticipation Appeals Genuine Issue of Material Fact Inequitable Conduct Inherency Patent-in-Suit Patents Prior Art Summary Judgment Vacated

“Unfamiliarity” with Federal Court Practice Not Enough to Avoid Default

In United Construction Products, Inc., v. Tile Tech, Inc., [2016-1392] (December 15, 2016), the Federal Circuit affirmed default judgment against Tile Tech on claims of patent infringement and unfair competition because of...more

12/20/2016 - Abuse of Discretion Appeals Default Judgment Discovery Disputes Patent Infringement Patents Sanctions Unfair Competition

Vitiation has not be Vitiated

In Power Integrations, Inc., v. Fairchild Semiconductor International, Inc, [2015-1329, 2015-1388] (December 12, 2016), a complicated action where each party claimed the other directly and indirectly infringed its patents,...more

12/19/2016 - Appeals Complex Litigation Direct Infringement Doctrine of Equivalents Induced Infringement Jury Verdicts Patent Infringement Patent Litigation Patents Reversal Vacated

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