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Civil Procedure Intellectual Property

Read Civil Procedure updates, alerts, news, and legal analysis from leading lawyers and law firms:

Non-Trademark Use is a Non-Infringing Use

In Oaklawn Jockety Club, Inc. v. Kentucky_Downs, LLC, [16-5582] (Sixth Circuit April 19, 2017), the Sixth Circuit affirmed a district court dismissal of plaintiff’s trademark infringement action because defendant’s use of...more

How Does the Supreme Court’s Recent Ruling on Incontinence Products Spill Over into Fashion?

On March 21, 2017 the Supreme Court issued a monumental holding removing the availability of laches as a defense in a claim for damages under patent infringement. The case changes decades of legal precedent, and adopts...more

Auction House Accused of Scraping Competitor’s Web Listings

Screen scraping is a problem that has vexed website owners since the early days of e-commerce – how to make valuable content available to users and customers, but prevent competitors from accessing such content for commercial...more

Ali v. Carnegie Institution of Washington (Fed. Cir. 2017)

It has been the experience of more than a few first-year law students taking Civil Procedure I that the only correct answer to a complex procedural problem is that there is no way for a plaintiff to bring suit. The student...more

Issue Preclusion: Patent Owner Does Not Get a Do Over to Assert the Claims Against Similar Products

In Phil-Insul Corp. v. Airlite Plastics Co., [2016-1982] (April 17, 2017), the Federal Circuit affirmed summary judgment of non-infringement of U.S. Patent No. 5,428,933. In prior litigation in which Phil-Insul asserted the...more

SOUR GRAPES: Fig Spread Verdict Under DTSA Doesn’t Stick, Argue Jam Company Defendants

In a dispute over ripped off recipes, counsel for victorious plaintiff Dalmatia Import Group hailed the jury verdict as the first of its kind under the Defend Trade Secrets Act, as we previously reported. Not so fast, sulked...more

PTAB Life Sciences Report -- Part II - April 2017#2

About the PTAB Life Sciences Report: Each month we will report on developments at the PTAB involving life sciences patents. Actavis Laboratories FL, Inc. et al. v Janssen Oncology, Inc. PTAB Petition: IPR2017-00853;...more

Is there a legislative fix for biotech patents?

by Morrison & Foerster LLP on

By some accounts, we have entered a golden age for innovation in personalised medicine. Through scientific advancements in the study of genetic coding and molecular analysis, it is now possible to screen an individual for...more

Just How Predictable Must the Invention Be to Lose Patent Protection? Depends on the Inventive Concept

by Bennett Jones LLP on

Only a true invention can be patented; a patent claim to an invention is not valid if the invention was obvious. Assessing obviousness can be thought of as bridging the gap between two cliffs: on one side is the existing...more

Oh Yes They Did! - Ninth Circuit Holds that Use of Moderators May Impact DMCA Safe Harbor Shield

by Bryan Cave on

In Mavrix Photographs, LLC v. LiveJournal, Inc., No. 14-56596 (9th Cir. 2017) the Ninth Circuit held that the use of moderators by social media website LiveJournal created a question of fact as to whether the Digital...more

Fourth Circuit Tells District Court Not to Abstain in False Ad Holy War

At the heart of this unique Lanham Act case is a dispute between the Episcopal Church (the “Church”) and one of its “disaffiliated” districts, the Diocese of South Carolina (“Diocese”). In 2012, led by its Bishop Mark...more

Little Words That Can Make a Big Difference: i.e. Versus e.g.

The difference between “i.e.” (id est, “that is”) and “e.g.” (exempli gratia, “for example”) comes up in patent cases from time to time. While the difference is not always clear to some practitioners, it is clear to the...more

Brunswick Rail Wins Emergency Evidence Protection in Trade Secret Case Against Former Employees

by Zapproved Inc. on

OOO Brunswick Rail Mgmt. v. Sultanov, No. 5:17-cv-00017-EJD, 2017 U.S. Dist. LEXIS 2343 (N.D. Cal. Jan. 6, 2017). The court partially granted the plaintiff, OOO Brunswick Rail Mgmt., a motion for emergency evidence...more

Novartis AG v. Torrent Pharmaceuticals Ltd. (Fed. Cir. 2017)

Can a prior art reference that does not contain a teaching sufficient enough to allow it to be used in an obviousness combination nevertheless be used as a background reference for evidence of motivation to combine? ...more

SAS Urges High Court to Restore Balance to AIA Post-Grant Framework

by Jones Day on

Who makes the country’s patent laws—Congress, or the Patent Office? A recent petition for certiorari filed by SAS Institute, Inc.—represented by a team of Jones Day lawyers—asks the Supreme Court to decide that question in...more

Amgen Files Reply Brief in Sandoz v. Amgen

by Goodwin on

On April 14, Amgen filed its reply brief in Sandoz v. Amgen. We have previously reported on Sandoz’s response and reply brief, Amgen’s consolidated opening and responsive brief and Sandoz’s opening brief. As we have...more

Federal Circuit Reverses-in-Part PTAB’s IPR Decisions for Wasica’s Tire Pressure Monitoring Patents

The Federal Circuit affirmed-in-part and reversed-in-part the PTAB’s final written decisions on Wasica’s tire pressure monitoring patents in Wasica Finance GmbH v. Continental Automotive Sys., Inc., No. 2015-2078 (Fed. Cir....more

Failure of Licensee to Mark May Upend $15.7 Million Damage Award

In Rembrandt Wireless Technologies, LP v. Samsung Electronics CO., LTD., [2016-1729] (April 17, 2017), the Federal Circuit affirmed the district court’s claim construction and denial of Judgment as a Matter of Law (JMOL),...more

"Strategies for Litigants in Patent Infringement Cases Using Motions to Dismiss Post-Alice"

Nearly three years have passed since the U.S. Supreme Court's decision on patent eligibility in Alice Corp. Pty. Ltd. v. CLS Bank Int'l. The decision, which ushered in an unprecedented wave of cases invalidating...more

Federal Circuit Affirms PTAB’s Obviousness Holding for Novartis’s Dementia Drug Patents

The Federal Circuit affirmed the PTAB’s final written decisions holding that claims directed to Novartis’s dementia drug compositions containing Exelon were obvious in Novartis AG v. Noven Pharm. Inc., No. 2016-1679 (Fed....more

USPTO Launches PTAB Procedural Reform Initiative

On April 7, 2017, the U.S. Patent and Trademark Office (USPTO) announced it has launched an initiative to develop ways to improve Patent Trial and Appeal Board (PTAB) proceedings, particularly inter partes review proceedings....more

Don’t Forget to Establish Personal Jurisdiction in Defend Trade Secrets Act Cases

by Seyfarth Shaw LLP on

It is well known that 18 U.S.C. § 1836, et seq. (the Defend Trade Secrets Act or “DTSA”) finally provides a mechanism for pursing trade secret claims in federal court. A recent decision, however, serves as an excellent...more

Trademark Butter Battle: Kerrygold v. Irishgold

You’ve probably heard of and/or eaten Kerrygold® Pure Irish Butter, a deliciously popular (but higher-priced) butter imported from Ireland, made with milk from grass-fed cows. It’s available in most stores across the United...more

Delaware Court Declines to Enter “Judgment” in Genentech v. Amgen

by Goodwin on

We have previously reported on letters submitted by Genentech and Amgen to the District of Delaware regarding Genentech’s decision not to file an amended complaint. In its letter, Genentech requested entry of judgment without...more

Opinions of Counsel Should Be Rendered Timely, and Evidence of Opinions of Counsel Should Be Credible

Omega Patents, LLC (“Omega”) sued CalAmp Corp. (“CalAmp”) for patent infringement in the Middle District of Florida. The jury returned a verdict for Omega, finding all of the asserted claims valid and infringed. On April 5,...more

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