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Intellectual Property Constitutional Law

Read Intellectual Property Law updates, alerts, news, and legal analysis from leading lawyers and law firms:

Sovereign Immunity and Inter Partes Review

by Knobbe Martens on

Sovereign immunity refers to the doctrine that the government cannot be sued without its consent. Specifically, the 11th Amendment precludes federal courts from exercising jurisdiction over states in suits brought by private...more

Patents for Billion Dollar Restasis Drug Under Siege

Using an innovative strategy, pharmaceutical company Allergan recently transferred the patents associated with the eye drug, Restasis, to the Saint Regis Mohawk Tribe, in exchange for an exclusive license back. The tribe...more

UPC and Germany: Status update - Constitutional complaint, ratification timeline and more

by Hogan Lovells on

The constitutional complaint against the UPC ratification that was lodged with the Federal Constitutional Court in Germany earlier this year has received a lot of attention over the past few months as it could have the...more

Texas Court of Appeals Reverses T.G.I. Friday’s Label Decision

by McDermott Will & Emery on

On Friday, October 13, 2017, a Texas Court of Appeals handed down the long-awaited decision in Texas Alcoholic Beverage Commission v. Mark Anthony Brewing, Inc., No. 03-16-00039-CV. The case involves Texas’ ban on...more

Government Agencies Have Standing to Petition for CBM Review

by McDermott Will & Emery on

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

Supreme Court Corner Q3 2017

by DLA Piper on

MATAL V. TAM - Simon Shiao Tam leads a dance-rock band and sought to trademark the band's name: The Slants. The Trademark Trial and Appeal Board (TTAB) upheld the PTO's decision not to register the mark under § 2(a),...more

Respondent Has Standing in Appeal from PTAB

by McDermott Will & Emery on

In an opinion addressing the standing of a respondent in an appeal from an inter partes review (IPR) before the Patent Trial and Appeal Board (PTAB or Board), the US Court of Appeals for the Federal Circuit concluded that the...more

Top SCOTUS Cases Tech Companies Should Watch – Fall 2017 Preview

by Fenwick & West LLP on

The upcoming U.S. Supreme Court term promises to be a big one, featuring a patent case that could be a game changer for many clients and a host of other cases that may affect how tech and life sciences companies deal with...more

PTAB Denies Institution of CBM Review for Lack of Standing in view of Covenant Not to Sue

by Knobbe Martens on

The PTAB denied institution of Covered Business Method (CBM) Review, finding that the parties’ license agreement and covenant not to sue removed any “imminent” threat of an infringement suit. MasterCard International Inc., v....more

Judge Sweet Holds that Standing Question Cannot Be Resolved Until Trial

On September 14, 2017, District Judge Robert W. Sweet (S.D.N.Y.) denied the motion of Ferring B.V., et al. (“Ferring”) to dismiss for lack of standing a patent infringement suit brought by Allergan, Inc., et al. (“Allergan”)....more

Federal Trademark Registration, the First Amendment, and Freedom of Speech: Part III

Of course, loyal readers have been eagerly awaiting Part III of the series (see Part I and Part II) focusing on Tam’s intersection of federal trademark registration and the First Amendment....more

The Grinch loses and protection of parody wins

by Thompson Coburn LLP on

Someone once said make sure your words are sweet as you may have to eat them. In the attached decision, the Judge finds the play "Who’s Holiday" is a parody entitled to fair use. He grants Plaintiffs’ motion for judgment on...more

Claim Is Gone With The Wind At Death

Two time academy award winner Olivia de Havilland seeks an expedited trial for the lawsuit involving her right of publicity. Olivia de Havilland, DBE v. FX Networks, et al, BC667011 (Superior Ct. Calif., June 30, 2017). The...more

Buyer Beware: Make Sure Your Copyright Assignment Is Valid

by Payne & Fears on

You are in negotiations with a copyright owner to obtain a license to her work, which you want to publish, distribute, and/or license yourself. You want to ensure that you have the right to enforce the copyright against...more

Fresh From the Bench: Precedential Patent Cases From the Federal Circuit

In Allied v. OSMI, the Circuit affirms dismissal of a declaratory judgment action even though Allied’s Mexican distributors had been sued in Mexico on a corresponding Mexican patent. In a first Waymo v. Uber case, the panel...more

Allergan and the Saint Regis Mohawk Tribe Enter Patent Agreement to Defend Against IPR of RESTASIS® Patents

by Knobbe Martens on

In a creative move to take advantage of recent PTAB decisions regarding Sovereign Immunity, (see e.g., Covidien LP v. University of Florida Research Foundation, IPR2016-01274 and Neochord, Inc. v. University of Maryland,...more

Allergan Avails Itself of Sovereign Immunity

The 11th amendment to the Constitution reads: The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of...more

Judge or Jury?: The Federal Circuit Holds that Patent Litigants Do Not Have a Seventh Amendment Right to a Jury Trial on...

by K&L Gates LLP on

In AIA America, Inc. v. Avid Radiopharmaceuticals, the Federal Circuit considered whether the Seventh Amendment provides the right to a jury trial to determine entitlement to attorneys’ fees. During the case on the merits,...more

Pharma Patents Assigned to Indian Tribe to Thwart Inter Partes Review

by Foley & Lardner LLP on

As we have previously reported, sovereign immunity of state universities (who are instruments of state government) has been used to avoid IPRs under the immunity clause of the US Constitution (“Sovereign Immunity of State...more

Federal Trademark Registration, the First Amendment, and Freedom of Speech: Part II

As the drum roll proceeds to the upcoming Midwest IP Institute in Minneapolis and sharing the podium with Joel MacMull of the Archer firm (and Simon Tam fame) on Thursday September 28, in a few days, I’ll be making a stop...more

A Special Thank You to Suzan Shown Harjo

Today marks the 25th anniversary of the filing of the petition to cancel the R-Word registrations held by Pro-Football, Inc., the NFL franchise playing near the Nation’s capital....more

Federal Circuit’s Amicus Brief in Oil States

Although the Federal Circuit already passed on the constitutionality of Inter Partes Reviews, considering some of its recent decisions, it appears that the Federal Circuit questions the competence of the PTAB to conduct...more

Preemption is “Part and Parcel” of the §101; But Lack of Preemption Does Not Necessarily Establish Patentability

In Return Mail, Inc. v. United States Postal Service, [2016-1502] (August 28, 2017), the Federal Circuit affirmed the PTAB’s decision that the US Postal Service had standing to challenge Return Mails patents in an CBMR, and...more

It Pays to be Persistent if PTAB Rulings Violate Due Process Ultratec v. CaptionCall and Matal (Fed. Cir. 2017)

by Brinks Gilson & Lione on

In Ultratec, the Federal Circuit cited several problems with the Board’s permissive rules of trial proceedings and held the Board abused its discretion in its consideration of supplementary evidence. The Board’s regulations...more

Gavel to Gavel: Scandalous and immoral (trademarks)

by McAfee & Taft on

Since 1946, federal law has prohibited registration of scandalous, immoral and disparaging trademarks. This summer, the U.S. Supreme Court found the prohibition on disparaging trademarks to be unconstitutional, creating...more

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