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Ice Cream Brain Freeze

On May 9, 2018, Josh Berger brought a class action suit against Eden Creamery, complaining that the packaging of its Halo Top ice cream is misleading because the product is actually light ice cream....more

Plaintiff Pleads Plaid Pattern Plagiarized

On May 2, 2018, Burberry Limited sued Target Corporation in the Southern District of New York for trademark counterfeiting, trademark infringement, trademark dilution, false designation of origin, and unfair competition....more

The Old “Practicing the Prior Art” Defense

In 01 Communique Laboratory, Inc. v. Citrix Systems, Inc., [2017-1869] (April 26, 2018), the Federal Circuit affirmed the district court’s Order denying 01 Communique a new trial on the issue of infringement....more

Wash Your Hands Before Going to Court; Unclean Hands Wipe out Recovery for Valid and Infringed Patents

In Gilead Sciences, Inc. v. Merck & Co., [2016-2302, 2016-2615] (April 25, 2018), the Federal Circuit affirmed the district court’s determination that the claims the jury found to be valid and infringed were unenforceable...more

Hold the Mayo: Specific Method of Treatment for Specific Patients using a Specific Compound at Specific Doses to Achieve a...

In Vanda Pharmaceuticals Inc. v. West-ward Pharmaceuticals International Limited, [2016-2707, 2016-2708] (April 16. 2018), the Federal Circuit affirmed the district court’s determination that claims 1–9, 11–13, and 16 of U.S....more

What the PTO Giveth, the PTO Can Taketh Away. Inter Partes Reviews are Constitutional. Get Back to Work.

The Supreme Court has finally issued its opinion in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, holding that Inter Partes Review does not violate the Constitution. The majority opinion written by Justice...more

Inter Partes Review: If We’re Going to Have Them Then It’s All or Nothing

In SAS Institute Inc. v. Iancu, the Supreme Court held that the when the United States Patent and Trademark Office (USPTO) institutes Inter Partes Review, it must review all the grounds in the Petition and cannot choose to...more

Counting Votes is a Abstract Idea, and Simply Automating the Process Doesn’t Make it Patentable

In Voter-Verified, Inc., v. Election Systems & Software LLC, [2017-1930] (April 20, 2018), the Federal Circuit affirmed the district court’s determination that claims of U.S. Reissue Patent RE 40,449 were directed to...more

Neither Express Agreement, nor Implied Agreement, Clearly Deprived a Putative Inventor of Standing to Challenge Inventorship of a...

In Gregory C. James v. J2 Cloud Services LLC, [2017-1506] (April 20, 2018), the Federal Circuit reversed the dismissal of James’ claim for correction of inventorship for lack of jurisdiction....more

Lack of Corroboration Caused Claim of Prior Invention to Fail

In Aptator Miitors APS v. Kamstrup, [2017-1681] (April 17, 2018) the Federal Circuit affirmed the Board’s determination that U.S. Patent No. 8,893,559 was anticipated by Nielsen, U.S. Patent App. Pub. No. 2012/0006127,...more

Claim Covered at least the Depicted Enantiomer

In Sumitomo Dainippon Pharma Co., Ltd. v. Emcure Pharmaceuticals Limited, [2017-1798, 2017-1799, 2017-1800] (April 16, 2018) the Federal Circuit affirmed determination of infringement of the claim which depicted the...more

Collateral Estoppel Applies in IPRs Where the Issues are the Same

In Nestle USA, Inc. v. Steuben Foods, Inc., [2017-1193] (March 13, 2018), the Federal Circuit vacated the Board’s construction of “aseptic” in U.S. Patent No. 6,481,468 because of collateral estoppel considerations, and...more

Stare Decisis: Previous Claim Constriction Prevented Finding of Infringement

In Ottah v. Fiat Chrysler, [2017-1842] (March 7, 2018), the Federal Circuit affirmed the district court’s grant of summary judgment of non-infringement of U.S. Patent No. 7,152,840 on a book holder....more

“Ordinary Creativity” is no Different Than “Common Sense” and Requires Explanation

In DSS Technology Management, Inc. v. Apple Inc., [2016-2523, 2016-2524] (March 23, 2018), the Federal Circuit reversed the decision of the PTAB, finding claims 1–4 and 9–10 of U.S. Patent No. 6,128,290 obvious, because the...more

Presenting IPR Arguments Too Late is, Well, Too Late

In Dell Inc. v. Acceleron, LLC, [2017-1101] (March 19, 2018), the Federal Circuit affirmed the Board’s decision on remand not to consider Dell’s late-presented arguments, rather than giving Acceleron the opportunity to...more

“BRI.” You Keep Using That Word. We Do Not Think it Means What You Think it Means.

In In re: Power Integrations, Inc., [2017-1304] (March 19, 2018), the Federal Circuit reversed the decision on remand that claims 1, 17, 18, and 19 of U.S. Patent No. 6,249,876 were anticipated, because the Board relied upon...more

Written Description is Met by What the Disclosure Reasonably Conveys to Those Skilled in the Art

In Hologic, Inc. v. Smith & Nephew, Inc., [2017-1389] (March 14, 2018), the Federal Circuit affirmed the Board’s determination that S&N’s earlier-filed PCT application has sufficient written description to make it a priority...more

Happy 209th Birthday, President Lincoln

February 12 was Abraham Lincoln’s birthday, which, not that long ago, warranted its own holiday. Abraham Lincoln is the only president to earn a patent...more

2/15/2018  /  Legal History , Patents

Board’s Obvious Analysis Improperly Relied Upon Hindsight

In Polaris Industries, Inc. v. Arctic Cat, Inc., [2016-1807, 2016-2280] (February 9, 2018), the Federal Circuit affirmed in part, vacated in part, and remanded the PTAB’s determination in an IPR that claims of U.S. Patent No....more

ANDA Your Patent is Not Infringed

In Merck Sharp & Dohme Corp. v. Amneal Pharmaceuticals LLC, [2017-1560] (February 9, 2018), the Federal Circuit affirmed the district court finding that it did not abuse its discretion in denying Merck’s request for...more

Process Limitations are Presumed to Impart Structural Limitations, Even Where it is not Clear What those Limitations Are

In In re Nordt Development Co., LLC, [2017-1445] (February 8, 2018), the Federal Circuit rejected the Board’s claim construction of “injection molded” as a process limitation with no patentable weight, vacated the Board’s...more

Walker Process Monopolization Claim Does not Depend upon Resolution of a Substantial Question of Federal Patent Law

In Xitronix Corp. v. Kla-Tencor Corp., [2016-2746] (February 9, 2018), the Federal Circuit transferred an appeal of a Walker Process claim to the United States Court of Appeals for the Fifth Circuit, which has appellate...more

Trademark Law Offers Scant Protection When Bad Things “Happen” to Good Marks

There was a lot of discussion recently about the episode of NBC’s This Is Us, which implicated a faulty switch on a Crockpot® in the death of the family’s beloved patriarch, Jack Pearson. The manufacturers opened a Twitter...more

Incorporation by Reference (May Have) Saved the Day

In Paice LLC v. Ford Motor Company, [2017-1387, 2017-1388, 2017-1390, 2017-1457, 2017-1458, 2017-1406] (February 1, 2018), the Federal Circuit affirmed in part, reversed in part, and remanded Final Written decisions of the...more

Second and Third Bites at the Apple; Subsequent IPR Losses undo IPR Win

In Maxlinear, Inc. v. CF Crespe LLC, [2017-1039] (January 25, 2018), the Federal Circuit vacated and remanded the PTAB’s determination that dependent claims were not unpatentable in view of the Federal Circuit’s intervening...more

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