Bryan Wheelock

Bryan Wheelock

Harness, Dickey & Pierce, PLC

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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

“A Finding of Induced Infringement Requires Actual Inducement”

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

12/16/2016 - Appeals Burden of Proof Direct Infringement Evidence Induced Infringement Inducement Patent Litigation Patents

If the PTAB Doesn’t Say Why the Invention is Obvious, the Federal Circuit Has Nothing to Affirm

In re Nuvasive, Inc., [2015-1670] (December 7, 2016), the Federal Circuit vacated and remanded the PTAB Decision finding claims of U.S. Patent No. 8,361,156 invalid for obviousness. The Federal Circuit found that Nuvasive...more

12/12/2016 - Appeals Evidence Obviousness Patent Litigation Patent Trial and Appeal Board Patents Prior Art Remand Vacated

Injunction Against Dismissed Party Remanded to Make Sure it Had its Day in Court

In Asmark Danmark A/S v. CMI USA Inc., [2016-1026, 2016-1183] (December 6, 2016), the Federal Circuit affirmed the district court’s rulings on infringement, invalidity and damages, but remanded as to the injunction insofar as...more

12/10/2016 - Appeals Claim Preclusion Damages Injunctions Joinder Patent Infringement Patent Invalidity Patent Litigation Patents Remand

Supreme Court Vacates $399M Design Patent Damage Award, Finding an Article of Manufacture for Damage Purposes is Not Necessarily...

In Samsung Electronics Co., Ltd. v. Apple Inc., 580 U.S. ____ (2016), the Supreme Court reversed the award of $399,000,000 for infringement of Apple’s design patents covering the iPhone (U.S. Patent Nos. D618677, D593087, and...more

12/8/2016 - Apple v Samsung Article of Manufacture Calculation of Damages Cell Phones Component Parts Doctrine Damages Design Patent Patent Infringement Patents Profits Remand Reversal SCOTUS Smartphones

Double-Checking the PTAB

By Bryan K. Wheelock, Principal The Federal Circuit’s docket is burgeoning with Patent Office appeals.  Three years ago there were 118 appeals from the USPTO pending before the Federal Circuit. Today there are 578.  The bulk...more

12/7/2016 - America Invents Act Appeals Patent Litigation Patent Trial and Appeal Board Patents Post-Grant Review USPTO

Clothes Make the Man; They Sometimes Make the Trademark

Costumes and uniforms may be distinctive of a business, and thus may function as a trademark or service mark, identifying the business and distinguishing it from other business....more

12/5/2016 - Cheerleaders Fashion Design Service Marks Trademark Registration Trademarks Uniforms

The Difficulty in Implementing an Idea Does Not Mean the Idea is Not Abstract

In Apple, Inc., v. Ameranth, Inc., [2015-1703, 2015-1704] (November 29, 2016), the Federal Circuit affirmed in part and reversed in part the PTAB’s subject matter eligibility determination of claims of U.S. Patent Nos....more

12/1/2016 - Abstract Ideas Appeals Apple Covered Business Method Patents Patent Trial and Appeal Board Patent-Eligible Subject Matter Patents Popular Reaffirmation Reversal

Employers Don’t Own Your Brain; They Merely Rent it

New Jersey is apparently about to join the list of states with statutes that protect the rights of inventors. Generally, inventions made by employees belong to the employee, unless (1) that employee was specifically hired to...more

11/30/2016 - Employee Inventors Employment Contract IP Assignment Agreements Patents State and Local Government

When Trademark Registration is a Nice Gesture

Representations of gestures can be trademarks. For example Facebook’s Application No. 85020073 covers a depiction of a thumbs up gesture followed with the word “LIKE” in a rectangle...more

11/29/2016 - Disparagement First Amendment Service Marks Trademark Registration Trademarks

A Patent Does Not Become a CBM Patent Because its Practice Could Involve a Potential Sale of a Product or Service

In Unwired Planet, LLC, v. Google, Inc., [2015-1812] (November 21, 2016) the Federal Circuit vacated and remanded the PTAB’s final written decision in Covered Business Method Patent Review No. 2014-00006, that found the...more

11/28/2016 - Administrative Authority America Invents Act Appeals Covered Business Method Patents Covered Business Method Proceedings Goods or Services Patent Litigation Patent Trial and Appeal Board Patent-Eligible Subject Matter Patents Remand Standard of Review USPTO Vacated

Make IP Great Again

An interesting phenomenon is the use of trademarks to own current events. Every major event seems to be followed by a series of trademarks applications by those who seek to claim ownership of history, or at least the...more

11/21/2016 - Donald Trump Federal Trademark Register Popular Trademark Registration Trademarks

Undersecretary Nelotsky is Alive and Well!

In the landmark misappropriation case International News Service v. Associated Press, 248 U.S. 215 (1918), the Supreme Court identified a quasi-property right created by the investment of effort and money in an intangible...more

11/14/2016 - Confidential Information Infringement Misappropriation News Stories Trade Secrets

Federal Circuit to PTAB: “Play Fair.”

In In re Nuvasive, Inc., [2015-1672, 2015-1673] (November 9, 2016), the Federal Circuit reversed one of two PTAB decisions because the patent owner was not given adequate notice of the grounds of invalidity asserted against...more

11/11/2016 - Administrative Procedure Act Appeals Due Process Inter Partes Review (IPR) Proceeding Motion for Leave Notice Requirements Patent Invalidity Patent Litigation Patent Trial and Appeal Board Patents Reversal

Federal Circuit Gives the Board a Lesson on Hearsay

In REG Synthetic Fuels, LLC v. Neste Oil Oyj, [2015-1773] (November 8, 2016), the Federal Circuit affirmed-in-part, reversed-in-part, vacated-in-part, and remanded the PTAB’s unpatentability determinations for claims U.S....more

11/11/2016 - Admissible Evidence Anticipatory Reference Appeals Email Evidence Suppression Hearsay Patent Litigation Patents Reaffirmation Remand Reversal Vacated

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