Civil Procedure Intellectual Property

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Is Coopting Graffiti's Street Cred a Fair Use?

Estate of Graffiti Artist Sues McDonald’s Over Fast-Food Décor - The estate of Dashiell “Dash” Snow, better known as graffiti artist “Secret Snow”—has sued McDonald’s over allegedly infringing use of Snow’s street art in...more

Federal Circuit Review | November 2016

Fraud-Detection Patent Claimed Patent-Ineligible Subject Matter - In FairWarning IP, LLC v. Iatric Systems, Inc., Appeal No. 2015-1985, the Federal Circuit affirmed the district court’s holding that FairWarning’s patent...more

MarkIt to Market® - November 2016

The November 2016 issue of Sterne Kessler's MarkIt to Market® includes practical tips for registering certification marks, a look at the Trademark Trial and Appeal Board's latest revisions to the Rules of Practice-its most...more

8th Wonder Entertainment, LLC v. Viacom International, Inc. - USDC, C.D. California, November 22, 2016

District court dismisses copyright infringement suit alleging creators of VH1 reality TV show “Love & Hip Hop” copied plaintiffs’ treatment for reality show about women involved with hip hop artists, holding treatment...more

Not All Repeat Infringer Policies Are Sufficient for Safe Harbor Protection

The US Court of Appeals for the Second Circuit vacated a grant of summary judgment that a defendant had a reasonably implemented repeat infringer policy and therefore qualified for safe harbor protection under the Digital...more

Apple, Inc. v. Ameranth, Inc. (Fed. Cir. 2016)

Computerized Restaurant Ordering Menu Patents Found to Be Directed to Unpatentable Subject Matter - The U.S. Court of Appeals for the Federal Circuit reviewed a Patent Trial and Appeal Board (PTAB) decision in three...more

Termination of Distribution Agreement Does Not Affect Licenses to Cloud-Based Access

After finding that a copyright infringement question analyzed by the district court was more properly a contract interpretation issue, the US Court of Appeals for the Second Circuit affirmed the district court’s decision that...more

A Day Late And A Dollar Short – Court Grants Summary Judgment On Laches Defense

Order Granting Summary Judgment On Dropbox Laches Claims, Dropbox, Inc. v. Thru Inc., Case No. 15-cv-01741-EMC (Judge Edward M. Chen) - The proverb “[e]quity aids the vigilant, not the sleeping ones” aptly describes the...more

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

“Who’s on First?” Routine in Broadway Play Strikes Out as Transformative Fair Use

The US Court of Appeals for the Second Circuit determined that a Broadway play’s verbatim use of William “Bud” Abbott and Lou Costello’s “Who’s on First?” comedy routine was not a transformative fair use, but nonetheless...more

11th Circuit Shoots Down Firearms Retailer’s Appeal in Trademark Infringement Case

Addressing issues of priority and secondary meaning, the unlawful use defense and the right to jury trial, the US Court of Appeals for the 11th Circuit affirmed a district court’s judgment in favor of a firearms manufacturer...more

Future and Unreleased Products Can’t Drive Litigation

In a recent decision out of the District of Massachusetts, Judge Talwani provided litigants with insights into patent subject matter jurisdiction in declaratory judgment actions. Here the patent owner, US Carburetion, had...more

Choice of Law Meets Civil RICO

The Supreme Court’s opinion in RJR Nabisco, Inc. v. European Community (decided June 20, 2016) limited the extraterritorial reach of the Racketeering Influence and Corrupt Organizations Act (RICO). Now, a recent case out of...more

Perfect Surgical Techniques, Inc. v. Olympus America, Inc. (Fed. Cir. 2016)

Diligence is a patent concept whose applicability was severely restricted under the changes in U.S. patent law created under the Leahy-Smith America Invents Act. Diligence is important when determining whether an invention...more

District Court Orders Additional Deposition of Defendant after Witness Changed Numerous Deposition Answers in Errata

The plaintiff, Chrimar Systems Inc. and Chrimar ("Chrimar") filed a motion to compel an additional deposition of Defendant D-Link Systems, Inc.'s ("D-Link") corporate representative, William C. Brown. Chrimar previously took...more

Amazon.com Does Not Have to Put Out the Fire

Addressing an interlocutory appeal, the US Court of Appeals for the 11th Circuit affirmed a district court’s denial of a preliminary injunction against Amazon.com for trademark infringement, agreeing that the plaintiff’s...more

Ninth Circuit Joins Octane Fitness Trend for Trademark Cases

In 2014, the Supreme Court of the United States issued its ruling in Octane Fitness (IP Update, Vol. 17, No. 5), in which it examined the fee-shifting provision of the Patent Act and clarified the types of “exceptional” cases...more

9th Circuit opens door to damages against retailers carrying infringing works

One of the attractions of copyright law is that copyright owners can recover substantial damages (which can go up to $150,000 in cases of willful infringement) without having to prove actual losses. But generally these...more

News from Abroad: Not One But Two Decisions Fine Tune the Australian Patent Office's Approach to Life Science Technologies

Two recent Australian Patent Office decisions have provided clarity as to the patentability of isolated nucleic acid sequences following the High Court's decision in D'Arcy v Myriad Genetics ('Myriad'). The first decision is...more

PTAB Reverses Obviousness Finding After Remand

The Patent Trial and Appeal Board (PTAB or Board) reversed its previous decision invalidating claims of a patent covering a coaxial cable connector after the US Court of Appeals for the Federal Circuit found that the PTAB...more

Federal Circuit Clarifies What Constitutes Use “In Commerce” Under the Lanham Act

On November 14, 2016, the Federal Circuit clarified confusion regarding what is necessary to satisfy the registration requirement that a mark be used “in commerce.”...more

Attorney-Client Privilege Held Not to Apply to Nonreporting Employee/Expert

Many years ago, we represented a client in a quandary. (We know, we know: that’s pretty much always the case.) The product had been sold for many decades, the early history was important in marshalling a defense, and there...more

Federal Circuit Broadly Affirms PTAB’s Determinations on Analogous Art, Motivation to Combine References and Obviousness of Claims

The level of deference the Federal Circuit gives to the Board’s IPR decisions has been surprising to many practitioners, considering the Court’s reputation for reversing district court decisions. The trend of deference to...more

PTAB Uses § 315(e)(1) Estoppel to Narrow IPR Scope

In two recent final written decisions (FWDs) rendered in inter partes review (IPR) proceedings, the Patent Trial and Appeal Board (PTAB or Board) narrowed the scope of the proceedings by terminating the proceedings with...more

A Tale Of Two Hats: Trademark “Use In Commerce” Expanded In A Potentially Game-Changing Decision

Our readers no doubt understand that trademark use is the basis for trademark protection in the U.S. But all use is not created equal, and sometimes it’s not so easy to tell whether a trademark is actually used in a manner...more

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