IP Update, Vol. 14, No. 1, January 2011

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In This Issue: Patents: The 25 Percent Rule Is Fundamentally Flawed; Joint Patent Infringement Requires Agency or Contractual Obligation; Federal Circuit Rejects Use of eBay Factors in Determining Propriety of ITC Exclusion Order; Reading the Inequitable Conduct Tea Leaves in Advance of Therasense; Standard Used for Objective Baselessness Under 35 U.S.C. §285 is the Same as Objective Recklessness Under 35 U.S.C. §284; On Remand from Supreme Court, Medical Method of Treatment Claims Found to Be Patentable Subject Matter; Licensee Can Be “Exclusive” for Standing Even Where Others Have Rights to License the Patents-In-Suit; Venue Not Subject to Construct Manipulation; Evidence of Commercial Success Does Not Require Evidence Supporting Every Implementation of the Invention; and, Notwithstanding Co-Inventorship, State Law Precludes Inventor from Realizing Any Portion of Ex-Partner’s $409 Million Sale.

Trademarks: Proof of Actual Confusion Not Always Required to Recover Lost Profits in Trademark Infringement Claim; and, Sovereign Immunity Bars Trademark Infringement Claims Even If State Entity Institutes De Novo Suit. Copyright: Party Can Violate DMCA Even Absent Copyright Infringement; First-Sale Doctrine Protects Sale of Promotional CDs; and, Challenge to Grant of Attorneys’ Fees in Copyright Case Derailed by Untimely Objection.

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