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Interim Adverse Judgment Rule Averts Malicious Prosecution Claim

The California Supreme Court found that the denial of summary judgment in an underlying trade secrets misappropriation action established sufficient probable cause to bring an action under the California interim adverse...more

Sorry, Will – I AM Refused Registrations

The US Court of Appeals for the Federal Circuit affirmed a refusal to register the mark I AM for various goods based on a likelihood of confusion with registered marks, concluding that the pseudo applicant’s trade moniker was...more

Government Agencies Have Standing to Petition for CBM Review

The US Court of Appeals for the Federal Circuit found that federal government agencies have standing to challenge a patent in covered business method (CBM) review under the America Invents Act (AIA). Return Mail, Inc. v....more

PTO Attorneys’ Fees Are Fixed Costs and Thus Recoverable Expenses

Addressing the issue of whether the US Patent and Trademark Office (PTO) is entitled to recover attorneys’ fees in connection with the defense of a § 145 appeal, the US Court of Appeals for the Federal Circuit answered in the...more

Conviction for Economic Espionage, Sale of Trade Secrets to China

The US Court of Appeals for the Ninth Circuit upheld the first federal jury criminal conviction for economic espionage and theft of trade secrets under the Economic Espionage Act of 1996 (EEA), even though the owner of the...more

Who Wore It Best? Virtually Identical Fabric Design Supports Inference of Copying

The US Court of Appeals for the Ninth Circuit affirmed that it is permissible to infer copying, even absent evidence of access, where the accused design and the copyright are so overwhelmingly identical that the possibility...more

Foreign-State-Sponsored Espionage Not Actionable Under FISA Where Intent to Spy Occurs Abroad

In concluding that the Foreign Sovereign Immunities Act (FISA) exception for non-commercial torts does not abrogate sovereign immunity where the claimed espionage did not occur entirely in the United States, the US Court of...more

Give Me an E: Cheerleading Uniform Designs Eligible for Copyright Protection

In a 6–2 decision authored by Justice Thomas, the Supreme Court of the United States provided guidance as to whether aesthetic designs of a cheerleading uniform, such as stripes, chevrons, zigzags and color blocks, are...more

SCOTUS Agrees that Cheerleading Uniform Designs Are Eligible for Copyright Protection

In a 6-2 decision authored by Justice Thomas, the US Supreme Court has now provided guidance as to whether aesthetic designs, such as stripes, chevrons, zigzags and color blocks of a cheerleading uniform are eligible for...more

Veteran Class-Action Suits Following Data Breaches Dismissed for Lack of Standing

In a decision consolidating two cases involving two veterans and two separate incidences of data breaches at the Veterans Affairs Medical Center (VAMC) in South Carolina, the US Court of Appeals for the Fourth Circuit...more

Article III Injury-in-Fact Required to Appeal PTAB Final Written Decision in IPR

Addressing the legal standard for demonstrating standing in an appeal from a final agency decision, the US Court of Appeals for the Federal Circuit concluded that petitioners must have Article III standing to appeal a Patent...more

Final Written Decision Demonstrates Breadth of PGR Review

In a Final Written Decision (FWD) in a post-grant review (PGR), the Patent Trial and Appeal Board (PTAB) addressed post-grant review eligibility, enablement, written description and anticipation. US Endodontics, LLC v. Gold...more

Failure to Introduce Source Code of Original Work Fatal to Claim Against Alleged Derivative Work

The US Court of Appeals for the Ninth Circuit affirmed an order dismissing a breach of contract action, finding that the plaintiff failed as a matter of law to establish copyright infringement under the copyright law—upon...more

Default Sanction for Discovery Violations Was Abuse of Discretion

Highlighting the significance of procedure, discovery disputes and the limits of judicial discretion, the US Court of Appeals for the Federal Circuit affirmed the district court’s denial of a motion to dismiss for lack of...more

Double-Checking Alice Using Common-Sense Distinctions Between Ends and Means

Following its decision in Enfish (IP Update, Vol. 19, No. 6), the US Court of Appeals for the Federal Circuit provided additional guidance on determining whether a patent claim includes an inventive concept, thereby rendering...more

Kirtsaeng II: Fees in Copyright Cases Depend on Reasonableness of Litigation Position

Under 17 USC § 505, a “court may . . . award a reasonable attorney’s fee to the prevailing party.” However, when deciding whether to award attorneys’ fees under the Copyright Act’s fee-shifting provision, 17 USC § 505, the...more

Kirtsaeng II: Fees in Copyright Cases Depends on Reasonableness of Litigation Position

In Depth - Under 17 USC § 505, a “court may … award a reasonable attorney’s fee to the prevailing party.” However, when deciding whether to award attorneys’ fees under the Copyright Act’s fee-shifting provision, 17 USC...more

De Novo Review Used In Remand in Claim Construction - CardSoft, LLC v. Verifone, Inc.

Addressing issues of claim construction after a remand from the Supreme Court, the U.S. Court of Appeals for the Federal Circuit again reversed the district court’s judgment of infringement, finding that it was based on an...more

The Idea of Yoga Versus the Expression of It - Bikram’s Yoga College of India v. Evolation Yoga, LLC

Affirming the district court’s grant of partial summary judgment, the U. S. Court of Appeals for the Ninth Circuit concluded that a sequence of yoga poses and breathing exercises was directed to the idea or process of...more

Holy Copyright Batman; the Batmobile Still Protected by Copyright Despite “Costume Changes” - DC Comics v. Mark Towle dba Garage...

The U.S. Court of Appeals for the Ninth Circuit, recognizing that Batman’s personal crime-fighting vehicle, the Batmobile, is not just a cool car, but a character with “physical as well as conceptual qualities,” concluded...more

Court Fashions Hybrid Approach to Determining Whether Garment Designs Are Copyrightable - Varsity Brands et al. v. Star Athletica

Addressing for the first time the question of whether “cheerleading uniforms [are] truly cheerleading uniforms without the stripes, chevrons, zigzags, and color blocks” the U.S. Court of Appeals for the Sixth Circuit answered...more

What Does It Take to Trademark Your Name? - Tartell, M.D. v. South Florida Sinus and Allergy Center, Inc., et al.

Addressing the question of when a professional name can be protected as a trademark, the U.S. Court of Appeals for the Eleventh Circuit found that the plaintiff doctor’s name had not acquired that distinction. Tartell, M.D....more

Two Generics Can Make a Mark - Princeton Vanguard, LLC v. Frito-Lay North America, Inc.

The U. S. Court of Appeals for the Federal Circuit vacated and remanded for further proceedings the decision of the Trademark Trial and Appeal Board (TTAB or Board) cancelling the registration of the mark PRETZEL CRISPS,...more

Pre-Arbitration Injunction May Only Preserve Status Quo - Benihana, Inc. v. Benihana of Tokyo, LLC

In the context of a dispute surrounding a breach of a trademark license agreement that provided for arbitration of certain disputes, the U.S. Court of Appeals for the Second Circuit concluded that it was inappropriate for a...more

An Easy First Impression: Joint Dismissal of Appellate Review - Versata Software, Inc. v. Callidus Software, Inc.

Addressing for the first time the propriety of vacating an appellate opinion when the underlying appeal is rendered moot before issuance of that opinion, the U.S. Court of Appeals for the Federal Circuit determined that it...more

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