Cantor Colburn LLP Newsletter, Ideas on Intellectual Property Law April May 2009

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Induced patent infringement: Opinion of counsel matters (really!) Everyone seems to love a good lawyer joke, but it turns out that failing to obtain an attorney’s opinion is no laughing matter in some patent cases. This article reviews a Federal Circuit Court of Appeals opinion holding that a defendant’s failure to obtain a noninfringement opinion from counsel could indicate an intent to induce infringement by others. Citation: Broadcom v. Qualcomm, No. 2008-1199 (Fed. Cir. 2008); In re Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007)

Court declares appropriate test for design patent infringement. This article defines the “ordinary observer” and “point of novelty” tests and puts an end to the confusion. Citation: Egyptian Goddess, Inc. v. Swisa, 543 F.3d 665 (Fed. Cir. 2008); Gorham v. White, 81 U.S. 511 (1871); Litton Systems, Inc. v. Whirlpool Corp., 728 F.2d 1423 (Fed. Cir. 1984); Smith v. Whitman Saddle Co., 148 U.S. 674 (1893)

Can an implied license defeat a copyright claim? Businesses commonly employ independent contractors for any number of reasons. Yet the independent contractor/employer relationship can be complicated when intellectual property is involved — especially when that relationship comes to an end. This article shows the importance of addressing ownership rights using written agreements when developing intellectual property. Citation: Asset Marketing Systems, Inc. v. Gagnon, 542 F.3d 748 (9th Cir. 2008)

The importance of association: Automotive trademark faces likelihood of confusion test. Citation: AutoZone, Inc. v. Strick, 543 F.3d 923 (7th Cir. 2008).

Congress enacts additional IP protections.

Last fall, Congress enacted the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act. This brief article highlights its major changes, including damages in counterfeiting cases, clarification on registration and the creation of a new governmental position. Citation: Pub. L. 110-403

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