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Arguing Internet Availability to Establish Copyright Infringement Is Bananas

In an unpublished opinion, the US Court of Appeals for the Eleventh Circuit affirmed a district court’s decision finding that a pro se Californian artist failed to establish that an Italian artist had reasonable opportunity...more

House Rules: Remote Gambling Activity Claims Go Bust

The US Court of Appeals for the Federal Circuit applied the Alice/Mayo framework to assess whether claims directed to remote gambling were patent eligible under 35 U.S.C. § 101 and determined that the claims were directed to...more

ITU Applicants Beware: Federal Courts Have Jurisdiction Over Pending Trademark Applications

The US Court of Appeals for the Ninth Circuit affirmed in part a district court’s ruling in a trademark dispute, upholding its decision to invalidate trademark applications. The Ninth Circuit held that district courts have...more

Scattered Disclosures May Not Lead to Inference of Fraud in FCA Claim

The US Court of Appeals for the Ninth Circuit denied a petition for panel rehearing and rehearing en banc and issued an amended opinion that reversed a district court’s decision regarding the False Claims Act’s (FCA) public...more

A Matter of Style: No Need to Select “Primary” Reference in Obviousness Challenge

The US Court of Appeals for the Federal Circuit affirmed an obviousness decision by the Patent Trial & Appeal Board, explaining that nothing requires a petitioner to identify a prior art reference as a “primary reference” in...more

Pre-Enforcement Commercialization Isn’t “Impossible” Basis for Personal Jurisdiction of Nonresident Defendant

The US Court of Appeals for the Ninth Circuit reversed a district court’s dismissal of trademark declaratory judgment claims, finding that pre-enforcement commercialization activities can be used to establish personal...more

Tune to the Right Channel: Disclosure Lacking Fraud Information Isn’t an FCA Qui Tam Bar

The US Court of Appeals for the Ninth Circuit reversed a district court’s decision to dismiss a qui tam action brought under the False Claims Act (FCA) after analyzing the public disclosure bar channels. The case required the...more

Speculative Injury from Rulemaking Petition Denial Doesn’t Confer Standing

The US District Court for the District of Columbia affirmed the dismissal of a case alleging that the US Patent & Trademark Office (PTO) violated the Administrative Procedure Act (APA) by denying the plaintiffs’ rulemaking...more

Personal Jurisdiction? Selling Products via Interactive Website Will Do It

The US Court of Appeals for the Ninth Circuit reversed and remanded a district court’s dismissal for lack of personal jurisdiction, deciding that the sale of a product via an interactive website provides sufficient “minimum...more

Neither Narrow Proposed Claim Construction nor Work Product Claim Justify Withholding Material Factual Information

The Patent Trial & Appeal Board of the US Patent & Trademark Office (PTO) canceled all challenged claims across five patents because the patent owner failed to meet its duty of candor by selectively and improperly withholding...more

A Maze-Like Path and Laundry List Don’t Provide Written Description

The US Court of Appeals for the Federal Circuit affirmed a Patent Trial & Appeal Board (Board) decision that there was insufficient written description in the asserted priority applications to support a genus claim because of...more

No Standing to Invalidate Trademark without Threat of Infringement Suit

The US Court of Appeals for the Ninth Circuit concluded that when a party obtains a declaratory relief finding that it does not infringe a trademark, it no longer has Article III standing to pursue invalidation of the mark....more

Contingent Statement Doesn’t Unequivocally Abandon Defense of Challenged Claims

The Director of the US Patent & Trademark Office (PTO) initiated a sua sponte review of the Patent Trial & Appeal Board’s (Board) adverse judgments in multiple related inter partes review (IPR) proceedings. The PTO Director...more

Bad Connection: Claim Construction Argument without Explanation Given No Weight

The US Court of Appeals for the Federal Circuit affirmed a Patent Trial & Appeal Board (Board) obviousness decision after finding that the patent owner failed to explain how its cited extrinsic evidence supported its proposed...more

Game Over when Expert Fails to Use Correct Claim Construction

The US Court of Appeals for the Federal Circuit concluded that a district court did not abuse its discretion in striking expert testimony where the testimony did not rely on an agreed and court-adopted claim construction....more

FDCA’s Exclusive Enforcement Provision Reigns Supreme over State Laws

In its first occasion to interpret § 353b of the Federal Food, Drug, and Cosmetic Act (FDCA), the US Court of Appeals for the Ninth Circuit relied on the “implied preemption doctrine” to affirm a district court’s case...more

Secondary Meaning: Consumers Connect Product with Single Anonymous Source

Reversing and remanding a district court’s grant of summary judgment in favor of an accused trade dress infringer, the US Court of Appeals for the Ninth Circuit explained that trade dress does not need to be linked to a...more

Claim Cancelation Limits but Doesn’t Prohibit Assignor Estoppel Defense

On remand from the Supreme Court, the US Court of Appeals for the Federal Circuit reconsidered the boundaries of the doctrine of assignor estoppel. The Federal Circuit found that the patent assignor was estopped from...more

Publisher’s Fair Use Defense Dries Up

The US Court of Appeals for the Ninth Circuit overturned a district court’s summary judgment, rejecting an accused publisher’s argument that their use of copyrighted photos embedded in articles was fair use under the...more

Court to Counsel: Be Frivolous at Your Own Risk

The US Court of Appeals for the Federal Circuit may “award just damages and single or double costs to the appellee” under the Federal Rule of Appellate Procedure 38 if an appeal is frivolous as filed or as argued. In a...more

Can’t Hide Behind Minor Clerical Error to Escape Willful Infringement Verdict

The US Court of Appeals for the Federal Circuit affirmed a district court decision correcting a clerical error in a claim. Pavo Solutions LLC v. Kingston Technology Company, Inc., Case Nos. 21-1834 (Fed. Cir. June 3, 2022)...more

Co-Authorship ≠ Co-Inventorship but Can Be Supportive of Inventive Contribution

The US Court of Appeals for the Federal Circuit vacated and remanded a Patent Trial & Appeal Board (Board) decision because it failed to resolve fundamental testimonial conflict relating to inventive contribution and complete...more

Oh Snap: Sufficient Reasoning Must Support Declaratory Judgment Dismissal

The US Court of Appeals for the Federal Circuit vacated and remanded the dismissal of a declaratory judgment action because the district court failed to sufficiently support its decision. Mitek Systems, Inc. v. United...more

Notice Letters, Related Communications May Establish Specific Personal Jurisdiction

The US Court of Appeals for the Federal Circuit rejected a bright-line rule that patent infringement notice letters and related communications can never form the basis for specific personal jurisdiction. Apple Inc. v. Zipit...more

Judge Albright Issues Another Round of Updated Patent Rules for WDTX

As previously reported, Judge Albright issued standing orders for his patent cases. On March 7, 2022, Judge Albright issued another set of rules applicable to his large portfolio of patent cases in the Western District of...more

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