Constitutional Law Intellectual Property

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McCarthy Institute Trademark Seminar 2017

One of the current challenges in trademark law addressed in Seattle last week at the Amazon Corporate Conference Center, host of the 2017 McCarthy Institute and Microsoft Corporation Symposium, is an issue we have discussed...more

Case Summary - PPG Industries, Inc. v. Valspar Sourcing, Inc.

In a non-precedential decision, the Federal Circuit found that appellant PPG had Article III standing to file an appeal from two inter partes reexaminations. However, the Court found that appellee Valspar’s subsequent...more

State Universities Rejoice: PTAB Recognizes Sovereign Immunity Defense

In Covidien LP v. University of Florida Research Foundation Inc., the Patent Trial and Appeal Board (the “Board”) upheld a defense of sovereign immunity asserted by the University of Florida Research Foundation (the...more

Disparaging (or Maybe Not) Trademarks: The Supreme Court Hears Oral Arguments on In Re Tam

On January 18, 2017, the Supreme Court heard oral arguments regarding whether the Lanham Act’s provision refusing federal trademark registration to disparaging marks is invalid under the Free Speech Clause of the First...more

Intellectual Property Bulletin - Winter 2017

A Smooth Patch in a Rough Road? Governmental Transition and Intellectual Property - Whenever a new Congress convenes, some IP issues come to the fore while others take a back seat. Transition to a new administration in...more

The Supreme Court Tackles Disparaging Trademarks

From my title, you may think I am referring to the battle over the REDSKINS trademark. However, the In re Tam case beat the REDSKINS team to the high court. The case involving the REDSKINS mark is currently on hold until...more

PTAB Applies State Sovereign Immunity in IPR

On January 25, 2017, the Patent Trial and Appeal Board dismissed three petitions filed by Covidien LP challenging U.S. Patent No. 7,062,251 (the “’251 patent”) owned by the University of Florida Research Foundation Inc....more

2017 Intellectual Property Law Year In Review

Though politics ruled the headlines in 2016, the year still brought big changes in intellectual property law and its application, most notably in patent subject matter eligibility, inter partes review institution and appeal...more

Lee v. Tam: Supreme Court Hears Oral Arguments On Lanham Act Section 2(a) Prohibition of Registration of Disparaging Marks

Earlier this month, the Supreme Court of the United States heard oral arguments in Lee v. Tam to examine the constitutionality of Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a). Section 2(a) prevents the registration of...more

PTAB Denies IPR Petition Against the State of Florida Due to 11th Amendment Sovereign Immunity

In Covidien LP v. University of Florida Research Foundation Incorporated, IPR2016-01274, -01275, -01276 (January 2017), the Patent Trial and Appeal Board held that Eleventh Amendment sovereign immunity applies to inter partes...more

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

PTAB Declares that State-Owned Patents are Immune from IPR Challenges

A panel of the Patent Trial and Appeal Board (PTAB) recently issued a decision that could significantly strengthen patent portfolios of public universities and other state entities. In Covidien LP v. University of Florida...more

McNees 2016 In Review – Trademarks, Copyrights and Patents

The year 2016 saw interesting and diverse developments in trademark, copyright, trade secret, and patent law. Not only has intellectual property news been in the headlines, but these areas have made it to the Supreme Court....more

To the Federal Circuit, Some Petitioners Have No Appeal Whatsoever

On January 9, 2017, the Federal Circuit held that Phigenix lacked standing to appeal the final written decision of nonobviousness from the U.S. Patent Trial and Appeal Board (“PTAB”) because Phigenix did not offer sufficient...more

Petitioner Must Show Actual Injury to Establish Standing to Appeal PTAB Final Written Decision

In this case, the Federal Circuit determined that in its nearly 35-year history, it had not established the legal standard for demonstrating standing in an appeal from a final agency action. The underlying dispute arose from...more

Not Every Party Will Have Article III Standing In An Appeal From A PTAB Final Written Decision

The Patent Trial and Appeal Board (“PTAB”) found the asserted claims of U.S. Patent No. 8,337,856 (“the ‘856 patent”) are nonobvious in a final written decision. Phigenix, Inc. v. Immunogen, Inc., IPR 2014-00676 (PTAB Oct....more

Federal Circuit Rules That Not All Petitioners Have Standing to Appeal Adverse IPR ResultsFederal Circuit Rules That Not All...

The Federal Circuit recently dismissed an appeal from an inter partes review proceeding where the appellant/petitioner failed to establish that it had constitutional standing to maintain an appeal. Phigenix, Inc. v....more

This Year’s Top Ten IP Cases

#10 Design Patent Damages § 289 - Samsung Elecs. Co., v. Apple Inc., 580 U.S. _ (Dec. 6, 2016) - In the case of a multicomponent product, the relevant article of manufacture for arriving at a damages award under...more

Federal Circuit Requires Standing to Appeal PTAB’s Final Decisions

Although arguably foreshadowed, some may be surprised to learn that a party with the right to challenge the validity of a patent at the United States Patent and Trademark Office (“USPTO”) may not have the right to appeal an...more

Federal Circuit Finds IPR Petitioner Lacks Standing To Appeal

On January 9, 2017, in Phigenix, Inc. v. Immunogen, Inc., the Federal Circuit held that petitioner Phigenix lacked standing to appeal an adverse final written decision in an IPR. While acknowledging that the AIA permits a...more

Federal Circuit Requires Standing To Appeal An IPR Decision

In the case of Phygenix, Inc. v. ImmunoGen, Inc., the Court of Appeals for the Federal Circuit (CAFC) held that the petitioner (Phygenix) that had unsuccessfully challenged certain claims of ImmunoGen’s U.S. Patent No....more

Losing IPR Petitioners May Lack Standing To Appeal

When the Patent Trial and Appeal Board issues a final written decision finding against an IPR Petitioner, can that Petitioner necessarily appeal that adverse decision? In a case of first impression, the Federal Circuit...more

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

Federal Circuit Dismisses IPR Appeal for Lack of Standing

In Phigenix v. ImmunoGen, Appeal No. 16-1544 (Fed. Cir. Jan. 9, 2017), a precedential decision, the Federal Circuit found that the petitioner lacked standing to appeal the Patent Trial and Appeal Board’s (PTAB) final written...more

U.S. Supreme Court to Hear Arguments on January 18, 2017 in “The Slants” Case.

As we reported to you last September, the U.S. Supreme Court agreed to hear the case involving the constitutionality of the provisions of the Lanham Act upon which the U.S. Trademark Office relied to deny registration of the...more

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