Intellectual Property Civil Procedure

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District Court Grants Motion to Dismiss for Lack of Standing Where Co-Owners of Patent Were Not Joined in Original Complaint But...

Cobra International, Inc. ("Cobra") filed a patent infringement action against Defendants for infringement of U.S. Patent No. 5,821,858 ("the '858 patent"). Cobra alleged that the '858 patent was issued to Allan J. Stone, who...more

Federal Circuit Affirms Damage Award Based on Lost Profits

Last week, the U.S. Federal Circuit unanimously upheld a damage award based on lost profits in the latest round of a decade-long litigation between Akamai Technologies and Limelight Networks. Akamai Technologies v. Limelight...more

Trademark Review | November 2015

I AM Similar - The Trademark Trial and Appeal Board (TTAB) affirmed the examiner’s decision to deny three applications for “I AM” marks filed by, LLC (“Applicant”), finding that Applicant’s proposed “I AM”...more

Post-Approval Quality Control Testing of Pharmaceutical Products: What Constitutes 35 U.S.C. § 271(g) Infringement or Falls Under...

The Federal Circuit recently affirmed that a generic pharmaceutical company’s use of post-approval quality control testing was not “making” under 35 U.S.C. § 271(g). See Momenta Pharmaceuticals, Inc. et al. v. Teva...more

USPTO Launches Dossier Access

The U.S. Patent and Trademark Office (USPTO) announced today that it had launched Dossier Access, the first of a set of business services to be developed as part of the Global Dossier Initiative. The Global Dossier...more

3 Years of Inter Partes Review – By The Numbers

Welcome to Harness Dickey’s Report on Litigation Practice before the United States Patent Office. Created by the America Invents Act, Inter Partes Review proceedings have already changed the face of patent litigation. Lower...more

Algorithm Optional? A Guide to Computers as Structure in Means-Plus-Function Claiming

Summary Judgment Order, Fortinet, Inc. v. Sophos, Inc., et al., Case No. 13-cv-05831-EMC (Judge Edward Chen) - Means-plus-function claim elements are less common than in the past, due to stricter rules about their scope...more

Down Stream from Aereo: FilmOn Pulled by Different Legal Currents

Last year in American Broad. Cos., Inc. v. Aereo, Inc., the Supreme Court dealt a significant victory to the broadcast industry when it concluded that Aereo’s online streaming services infringed the broadcasters’ copyrighted...more

Obviousness Versus Obviousness-Type Double Patenting

In Prometheus Laboratories, Inc. v. Roxane Laboratories, Inc., the Federal Circuit affirmed the district court’s finding that Prometheus’ claims were invalid as obvious, but in so doing it cited its own precedent regarding...more

The Genericide of the Turkey Stick: Another Thanksgiving Trademark Tale

For the past few years, the Trademark and Copyright Law Blog has marked Thanksgiving with a note about the history of turkey trademarks. Last year, we discussed the ownership of GOBBLE GOBBLE, and before that we told you why...more

Connect the Dots: Petition That Fails to Explain How Prior Art Could Be Combined Can Doom a PTAB Proceeding

While claim charts are often used to compare prior art to challenged patent claims, simply submitting those claim charts as part of a petition to the Patent Trial and Appeal Board (PTAB), without more, could lose your case....more

Are Things Getting Nutty at the USPTO?

As we enter the Thanksgiving and holiday season this year, it is particularly apropos to ponder the following question: Is the TTAB going nuts? Congress tells us that the PTO cannot register trademarks that are scandalous...more

Braham v. Sony/ATV Music Publishing - USDC, Central District of California, November 10, 2015

In copyright infringement suit targeting Taylor Swift’s hit song “Shake It Off,” magistrate judge recommends dismissal of pro se plaintiff’s claim, finding plaintiff failed to plausibly allege that Swift’s repeating phrases...more

Federal Circuit Review | November 2015

Federal Circuit Declines to Reverse Invalidity, Noninfringement Holdings - In Spectrum Pharmaceuticals, Inc. v. Sandoz Inc., Appeal No. 2014-1407, the Federal Circuit affirmed the district court’s grant of summary...more

"Software" Claims Reciting No Structural Components and Having Questionable Novelty Struck Down under 35 U.S.C. § 101

Two recent District Court decisions show examples of "weak" claims, which in the past would likely be found invalid as lacking novelty or being obvious, but today are struck down as being unpatentable under § 101. The cases...more

Sixth Circuit Differentiates Trade Secrets and Confidential Information Under Texas Law

Last week, in a diversity jurisdiction case, the Sixth Circuit analyzed Texas law to identify the relationship among three separate categories of business information: (1) trade secrets, (2) contractually protected...more

Triple Threat to Coverage: Third Circuit Departs From Three Fundamental Rules in Applying “Prior Publication” Exclusion

Three well-established rules — (1) that policy exclusions are to be interpreted narrowly, (2) that an insurer has the burden to prove the applicability of an exclusion, and (3) that an insurer has a duty to defend as long as...more

FTC Asserts That Its Failure to Object to a “Reverse Payment” Settlement Should Not Be Interpreted as Approval

On November 17, 2015, the FTC submitted an amicus brief to the Third Circuit Court of Appeals in In re Effexor XR Antitrust Litigation, where the district court had dismissed the plaintiffs’ claims of antitrust violations...more

Location of Accused Activity Informs Post-Approval Enforceability of “Quality-Control” Process Patents

On November 10, 2015, the United States Court of Appeals for the Federal Circuit issued its decision in two companion cases: Momenta Pharms. Inc. v. Teva Pharms. USA Inc. (14-CV-1274, 14-CV-1277) and Momenta Pharms. Inc. v....more

Considerations for Submission of Experimental Evidence to the Patent Trial and Appeal Board

Experimental evidence can be a powerful tool in succeeding in an inter partes review proceeding, particularly in the case where inherent properties of prior art are at issue. As indicated by the requirements of 37 C.F.R. §...more

Court Report - November 2015 #5

About Court Report: Each week we will report briefly on recently filed biotech and pharma cases. Merck Sharp & Dohme Corp. v. Savior Lifetec Corp. 5:15-cv-00415; filed August 21, 2015 in the Eastern District of North...more

IP Matters, Fall 2015

Textile Copyright Cases Ripe for ADR - While normally focused on music and media matters, copyright lawyers in California have grown busy with something else: fabrics. Hundreds of textile copyright suits involving fabric...more

District Court Denies TRO and Preliminary Injunction Where Speculation on Future Harm Did Not Show Likely Irreparable Harm

Plaintiff SATA GmbH & Co. KG ("Plaintiff") sought an ex parte Motion for Temporary Restraining Order and a Motion for Preliminary Injunction. Plaintiff alleged that Defendants Zhejiang Refine Wufu Air Tools Co., Ltd. ("Wufu")...more

Two Recent CAFC Opinions Closely Scrutinize PTAB IPR Decisions Upholding Claim Validity For Legal Error

Two opinions that came down this month illustrate the CAFC’s close scrutiny of potential legal errors in PTAB Final Written Decisions.  These decisions underline the benefits of appellants focusing their arguments on legal...more

ITC Proposed Amendments to Section 337 Rules

As the costs of patent litigation continue to rise, and tribunals work to more efficiently adjudicate disputes, the United States International Trade Commission (“ITC”) appears to be listening to its constituents: on...more

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