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Intellectual Property Bulletin - Fall 2016

Mean Girls v. The Right of Publicity: Lessons Learned From the Lohan and Gravano Lawsuits - On September 1, 2016, a New York appellate court ended two closely watched right of publicity lawsuits brought by Lindsay...more

Trademark Law Update: SCOTUS to Decide Whether Ban on Registering “Disparaging Marks” Is Unconstitutional

Under section 2(a) of the Lanham Act, the Patent and Trademark Office (USPTO) may refuse to register any trademark that “[c]onsists of . . . matter which may disparage or falsely suggest a connection with persons, living or...more

VR/AR in a Real World

In case you have been living under a rock, virtual reality (VR) and its first cousin, augmented reality (AR), have arrived. The highly publicized and long-awaited head-mounted displays (HMDs), the headsets through which the...more

FDA Says BPCIA Poses No Fifth Amendment Taking for Innovator Biologics Submitted Prior to Its Enactment

On the same day that FDA approved the first biosimilar of Humira, the fourth biosimilar to be approved in the U.S., it also denied a citizen petition filed by Abbott Laboratories (now AbbVie) requesting that FDA not accept...more

Intellectual Ventures I LLC v. Symantec Corp. -- Judge Mayer on the First Amendment

Decided September 30th, this Federal Circuit case is already making waves. The majority opinion seems to be at tension with the Court's outcome in BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, but the real...more

Federal Circuit Finds Three Intellectual Venture’s Patents Invalid under the Mayo/Alice Framework

The Federal Circuit recently decided a case concerning three patents owned by Intellectual Ventures I LLC (“IV”). Intellectual Ventures I LLC v. Symantec Corp., Case Nos. 2015-1769, 2015-1770, 2015-1771 (Fed. Cir. Sept. 30,...more

Judge Mayer’s Concurrence in IV Shows the Problem with Judicially Created Exceptions

The press is all abuzz with reactions to Judge Mayer’s concurring opinion bluntly stating that “claims directed to software implemented on a generic computer are categorically not eligible for patent.” Intellectual Ventures...more

Software Patent Eligibility: Preemption Gets Starring Role at the Federal Circuit

The Supreme Court decision Alice Corp. v. CLS Bank, 134 S. Ct. 2347 (2014) pronounced, in no uncertain terms, preemption “drives” patent subject matter eligibility and its exceptions. But after Alice, it appeared preemption’s...more

FDA Denies AbbVie Citizen Petition on Fifth Amendment Takings

On September 23, the FDA denied a citizen petition from AbbVie submitted to the FDA on April 2, 2012, requesting that the FDA not implement the BPCIA as to any applications for biosimilar products referencing Humira...more

Federal Circuit Overturns PTAB Denial of Motion to Amend Claims in IPR Proceeding

Veritas Technologies LLC v. Veeam Software Corp., No. 2015-1894 (Fed. Cir. Aug. 30, 2016). On recurring controversy in AIA trials is the difficulty patent owners face meeting the PTAB’s strict requirements for amending...more

Hartig Drug Co. v. Senju Pharmaceutical Co. (3rd Cir. 2016)

Perhaps one of the most influential first year law school classes for the task of learning how to "think like a lawyer" is civil procedure. Particularly when the professor is bold enough to engage students on the intricacies...more

Arm’s Length Royalty Rates Save Medtronic from $1.36 Billion Tax Deficiency

Addressing whether certain intercompany technology license agreements were negotiated at arm’s length, the US Tax Court rejected the Internal Revenue Service’s (IRS’s) alleged $1.36 billion tax deficiency and determined that...more

After Inventor Dies, Patent Infringement Lawsuit Is Dismissed for Lack of Standing on Court's Own Motion

Chris Tavantzis and ChrisTrikes Custom Motorcycles, Inc. ("ChrisTrikes") filed a complaint against a number of individuals and entities that allegedly infringed on a patent for a wheelchair-accessible motorcycle (the...more

Trade secrets law in the Internet age

How do you maintain a trade secret in the Internet age? As in the punch line to an old joke, “VERY CAREFULLY.”...more

Federal Circuit Review | June 2016

The PTAB Does Not Have to Consider New Arguments Raised in IPR Reply Briefs - In Intelligent Bio-Systems, Inc. v. Illumina Cambridge Ltd., Appeal No. 2015-1693, the Federal Circuit upheld a PTAB decision finding of...more

Intellectual Property Law - June 2016

Defend Trade Secrets Act of 2016: An Overview - Why it matters: The Defend Trade Secrets Act of 2016 (DTSA) was signed into law on May 11, 2016 and gives trade secret owners a federal cause of action for injunctive...more

Post-Grant Review Roils Patent Litigation Waters

The America Invents Act (AIA) has had a profound impact on patent litigation, particularly surrounding inter partes and other post-grant proceedings. Below, Manish K. Mehta, who handles patent litigation across an array of...more

The Recent PTO Guidance on Subject Matter Eligibility: Lessons

A few years ago, former PTO Solicitor General Nancy Linck arose from the audience at the BIO International Conference to provide her thoughts on how the Office had responded to the Supreme Court's decisions in Mayo v....more

In Onboard Wi-Fi Case, Covenant Not To Sue Has Wide Range

Judge Jeffrey Alker Meyer of the District of Connecticut recently released an opinion that is significant to litigants on either side of a covenant not to sue. In a complex case with a host of claims and counterclaims...more

Washington Football Franchise Calls an Audible, Tries to Score at the Supreme Court

Last week, the United States Patent and Trademark Office (“USPTO”) in Lee v. Simon Shiao Tam, asked the United States Supreme Court to reverse the decision of the United States Federal Circuit, which held that trademark law’s...more

Supreme Court Battle Set Over Prohibition of Disparaging Trademarks

Section 2(a) of the Lanham act bars the registration of “scandalous, immoral or disparaging trademarks.” The USPTO has used this applied this provision to refuse the registration of marks such as F**K PROJECT, PORNO JESUS,...more

The History, Purpose and Benefits of Patents

Britain has the longest known continuous patent system. British patents can be traced to the 15th Century, when the British Crown began granting exclusive rights, called “Letters Patent,” to certain manufacturers and traders....more

Absent Contemporaneous Objection to Order for Single Trial on Subset of Claims, No Due Process Violation - Nuance Communications...

The US Court of Appeals for the Federal Circuit ruled that a patent owner’s due process rights were not violated when a district court found that the defendant did not infringe all of the originally asserted patents, even...more

Federal Circuit Review | March 2016

Under O2 Micro, a District Court Must Provide a Claim Construction if the Parties Dispute the Meaning of a Claim Term - In Eon Corp. IP Holdings LLC v. Silver Springs Networks, Inc., Appeal No. 2015-1237, the Federal...more

Federal Circuit Finds Personal Jurisdiction Based On Plans To Market ANDA Product

In Acorda Therapeutics Inc. v. Mylan Pharmaceuticals Inc., the Federal Circuit held that the filing of an Abbreviated New Drug Application (ANDA) and intentions to market the product across the United States–including in the...more

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