Posts filtered by tags: Dyk[x]


Agency Action and Issue Preclusion

SynQor, Inc. v. Vicor Corp. (Fed. Cir. 2021) In a split-decision, the majority has sided with the patentee and vacated a PTAB inter partes reexamination decision cancelling the claims of SynQor’s U.S. Patent No. 7,072,190.  Judge Hughes wrote the majority decision that was joined by Judge Clevenger focusing on the procedural issues of collateral estoppel and mootness.  Judge Dyk wrote in dissent — arguing that reexamination decisions do not create issue preclusion — they are “examination” and “i...
Tags: Supreme Court, Law, AIA, Patent, Hughes, Greene, Federal Circuit, Cromwell, Clevenger, Dyk, Hargis Industries Inc, PTAB, Munsingwear, Hardware Inc, Hargis Indus Inc, Camreta

Is this an improved system, or mere automation?

by Dennis Crouch In its October 2020 decision in EcoServices v. Certified Aviation, the Federal Circuit issued a somewhat muddled nonprecedential opinion.  The en banc petition has now been briefed and awaiting action from the court. The patents at issue cover methods and systems for washing a jet engine.  A jury sided with the patentee and the district court awarded $2 million in back-damages, and $400 per infringing wash in ongoing royalties. [Federal Circuit Decision] On appeal, the Federal ...
Tags: Law, Patent, O'Malley, Federal Circuit, Dennis Crouch, Dyk, Schall, Federal Circuit Decision, EcoServices, Certified Aviation the Federal Circuit, En Banc Petition Opposition, En Banc Petition Question

Certiorari granted in Arthrex

by Dennis Crouch The Supreme Court has granted Certiorari in Arthrex on the questions of whether Administrative Patent Judges (APJs) were properly appointed under the U.S. Constitution and, if not, what is the proper remedy. None of the appellants were satisfied with the Federal Circuit’s decision in the case and each petitioned for Supreme Court review. Subsequently, the U.S. Gov’t filed a memorandum walking through what it saw as the three unifying questions presented in the case. The court ha...
Tags: Supreme Court, Law, Congress, Senate, Court, Patent, Moore, Hughes, Chen, O'Malley, U S Patent and Trademark Office, Reyna, Federal Circuit, Stoll, Prost, IPR

AntiBody Fragment: A Description of the Federal Circuit?

by Dennis Crouch Baxalta Inc. v. Genentech, Inc., 2020 WL 5048435 (Fed. Cir. Aug. 27, 2020) Although not en banc, this case was picked-up by five different Federal Circuit judges with two separate opinions and one recusal. Sitting by designation as a D.Del. district court, Judge Dyk sided with the accused infringer Genentech by narrowly construing Baxalta’s US7033590.  Although perhaps most jury members would need some help with definitions, the disputed terms are incredibly basic and fundamenta...
Tags: Law, Patent, Baxalta, Genentech, Baxalta Inc, Federal Circuit, Stoll, Genentech Inc, Dennis Crouch, Dyk, Fed Cir, Plager, Moore Wallach

Federal Circuit Narrows Application of Hooke’s Law, but Still Wields the Ineligibility Hammer

by Dennis Crouch American Axle & Mfg. v. Neapco Holdings (Fed. Cir. July 31, 2020).  When I talked with PTO Director Andrei Iancu a few months ago, he lamented that the Federal Circuit is now finding the manufacturing of Truck Axles and operation of Garage Door Openers ineligible for patenting.  The Federal Circuit panel has rewritten its Axle decision — now holding that American Axle’s asserted claim 1 might be eligible; Claim 22 remains ineligible. The court was evenly divided six-to-six on t...
Tags: Law, Patent, Moore, PTO, Taranto, Federal Circuit, American Axle, Dennis Crouch, Dyk, Axle, Andrei Iancu, Federal Circuit Narrows Application of Hooke, American Axle Mfg, Neapco Holdings Fed Cir, En Banc Denial

Arthrex Remands: Treat or Trick?

Guest post by Professor Andrew C. Michaels (University of Houston Law Center) With Arthrex certiorari petitions hitting the Supreme Court over the past weeks, one issue that seems to be underappreciated is the judicial retroactivity question raised by Judge Dyk in his Bedgear concurrence, which was joined by Judge Newman.  It is fair to say that these two venerable judges don’t always agree, so on the rare occasion when they team up for a concurrence one might reasonably expect that they have a ...
Tags: Supreme Court, Law, Court, Georgia, United States, Uspto, SEC, Kingston, Rivers, Madison, Patent, Harper, Booker, Fed, Hyde, Newman

CardioNet v. InfoBionic: Patenting a Diagnostic Tool

by Dennis Crouch CardioNet, LLC v. InfoBionic, Inc. (Fed. Cir. 2020) I have been following this case for the past couple of years because it served as the template for our 8th Annual Patent Law Moot Court at Mizzou back in 2018 (Sponsored by McKool Smith). In the case, CardioNet sued InfoBionic for infringement (D.Mass.).  The district court quickly dismissed the case for failure to state a claim under R. 12(b)(6) – ruling that the claims of CardioNet’s US7941207 are improperly directed at paten...
Tags: Supreme Court, Law, Patent, Mizzou, Stoll, Dennis Crouch, Dyk, McKool Smith, Plager, CardioNet LLC, CardioNet, InfoBionic Inc Fed

Guest Post: Out of the Blue: The Federal Circuit Devises a New Rule for Color Marks

Guest post by Christine Haight Farley (Professor, American University Washington College of Law and Faculty Director, Program on Information Justice and Intellectual Property). The Court of Appeals for the Federal Circuit has held that color marks on product packaging can be inherently distinctive. On April 8, 2020, the court issued its opinion in In re: Forney Industries, Inc. It stated that “a distinct color-based product packaging mark can indicate the source of the goods to a consumer, and, ...
Tags: Supreme Court, Law, Court, Missouri, Patent, Christian Louboutin, Wal Mart Stores Inc, Wal Mart, Chen, O'Malley, Trademark Office, Federal Circuit, Brunetti, 10th Circuit, Dyk, Ttab

En Banc Denial in Arthrex

by Dennis Crouch Arthrex, Inc. v. Smith & Nephew, Inc. and U.S. as intervenor (Fed. Cir. 2020) (en banc denial) None of the parties in this case were happy with the Federal Circuit’s original decision in Arthrex and all filed petitions for en banc rehearing.  Those petitions have now been denied in what appears to be a 8-4 split with Judges Newman, Wallach, Dyk, and Hughes expressly dissenting from the denial.  Judge Moore authored the original opinion in the case and also authored an opinion he...
Tags: Supreme Court, Law, Congress, Senate, US, United States, Uspto, AIA, Patent, Fed, Moore, Congressional, Duffy, Hughes, Chen, O'Malley

This case is an example of a “picture claim” that works to avoid the prior art.

Toy’s picture-claim wins the day before the PTAB. ChoiRock Contents Factory v. Aldric Saucier, Spin Master, Ltd. (Fed. Cir. 2020) This case centers on Spin Master’s patented transformable toy. U.S. Patent 7,306,504. Korean toymaker ChoiRock petitioned for IPR, but the PTAB sided with the patentee — holding that the challenged claims had not been proven unpatentable. On appeal, the Federal Circuit issued a split opinion on obviousness with Judges Bryson (Author) and Taranto in the majority affir...
Tags: Law, United States, Robins, Patent, Taranto, Federal Circuit, IPR, Spokeo Inc, Federal Courts, Dyk, PTAB, In Spokeo the Supreme Court, PTAB ChoiRock Contents Factory, Aldric Saucier Spin Master Ltd Fed, ChoiRock

Parallel District Court and ITC Litigation

Eko Brands v. Adrian Rivera Maynez Enterprises (Fed. Cir. 2020) ARM’s US Patent 8,720,320 covers a Keurig coffee-machine adapter.  Typical cartridges are single-use — rendered ineffective after being pierced by the brewer during operation. ARM’s device isn’t pierced and so retains its effectiveness over multiple uses. ARM filed an ITC complaint against Eko and others. Although the ITC ruled that several claims were invalid for lacking written description (e.g., claim 5), Eko defaulted with resp...
Tags: Law, US, Commission, Itc, Patent, Fed, Federal Court, Reyna, Federal Circuit, Dyk, Eko, Parallel District Court, ITC Litigation, Eko Brands, Adrian Rivera Maynez Enterprises Fed, District Court See Tandon Corp

Validity Goulash: Functional Claim Language, Patent Eligibility, and Pick-up Truck Drive Shafts

by Dennis Crouch In American Axle, the Federal Circuit found the patented method of manufacturing drifeshafts to be patent ineligible.  U.S. Patent No. 7,774,911. The claims “tuned” the shafts in order to reduce multiple forms of vibrational resonance, and the court held that the claims were improperly directed to “Hooke’s law, and possibly other natural laws.” The majority opinion was written by Judge Dyk and joined by Judge Taranto; while Judge Moore wrote a vigorous dissent identifying the ma...
Tags: Law, Patent, Moore, Morse, Taranto, Michel, Dennis Crouch, Dyk, Neapco, Hooke, American Axle the Federal Circuit, Supreme Court '' U S Startups Inventors, Jeremy C Doerre

Hey Mechanical Engineers: Your Patents are Also Ineligible

by Dennis Crouch American Axle & Manufacturing, Inc. v. Neapco Holdings LLC (Fed. Cir. 2019) This case focuses on Neapco’s U.S. Patent 7,774,911 that D.Del. Judge Stark found to lack eligibility. On appeal a divided panel has affirmed — with Judges Dyk and Taranto supporting invalidity and Judge Moore writing in dissent. The ‘911 patent covers a method of manufacturing a drive-shaft assembly with an internal-liner that is designed to reduce vibration problems. Yes –  the method of manufacture is...
Tags: Supreme Court, Law, Diamond, Halliburton, Patent, Parker, Mayo, Moore, Taranto, Federal Circuit, Dennis Crouch, Dyk, Flook, Diehr, Neapco, American Axle Manufacturing Inc

Standing to Defend your (Expired) Patent

Sony Corp. v. Iancu (Fed. Cir. 2019) Sony’s patent no. 6,097,676 is directed toward multiplex audio recordings with each channel having a different language translation.  Back in 2015, SONY sued ARRIS for infringing the ‘676 patent. (One of several infringement lawsuits between the companies).  In 2016, ARRIS turned-around and filed for inter-partes-review (IPR). The PTAB instituted as to two claims (5 and 8) and found them unpatentable (obvious).  That final written decision was issued in Septe...
Tags: Law, Sony, Uspto, Patent, Fed, Board, Newman, Sony Corp, Prost, ARRIS, IPR, Dyk, PTAB, Lubrizol Corp, Iancu Fed, Exxon Chem Patents Inc

How Smart is your Cleaning Robot?

by Dennis Crouch iRobot Corp. v. USITC (Fed. Cir. 2019) Back in 2017 iRobot (maker of the Roomba) complained to the USITC about infringing autonomous vacuums being imported into the US.  The patentee won on some grounds, but lost on others. This appeal focuses on iRobot’s U.S. Patent 9,486,924 which allows for scheduling of the cleaning via mobile phone.  After conducting its investigation, the ITC found no infringement .  A divided appellate panel has affirmed. The issue on appeal is claim-co...
Tags: Law, US, Itc, Irobot, Patent, Bryson, Mayer, Federal Circuit, Dennis Crouch, Dyk, iRobot Corp, USITC, USITC Fed

Am I my Server Rack?: Do Edge Nodes Satisfy the Venue Rules?

by Dennis Crouch In re Google (Fed. Cir. 2019) This appeal stems from a pending E.D.Tex. infringement lawsuit filed in 2017. SEVEN Networks, LLC v. Google LLC, 2:17-CV-00442 (E.D. Tex. Aug. 22, 2017).  In the case, SEVEN accused Google of infringing ten of its patents: 8,078,158, titled “Provisioning Applications for a Mobile Device” 8,811,952, titled “Mobile Device Power Management in Data Synchronization Over a Mobile Network With or Without a Trigger Notification” 9,247,019, titled “Mobile A...
Tags: Google, Texas, Law, Patent, Newman, Reyna, Eastern District of Texas, Taranto, Federal Circuit, Cray, Tex, Dennis Crouch, Dyk, Lourie, TC Heartland, Google Fed

Conflating Design Patent & Trademark Infringement – Can you just not?

By Sarah Burstein, Professor of Law at the University of Oklahoma College of Law Converse v. ITC and Sketchers, New Balance, et al. (Fed. Cir. 2018) [ConverseITC] As Professor Crouch already pointed out, the majority here held that “[i]n the context of trade-dress infringement, . . . accused products that are not substantially similar cannot infringe.” In doing so, the majority cited a perfectly good and persuasive authority, Versa Prods. Co. v. Bifold Co. (Mfg.), 50 F.3d 189, 202 (3d Cir. 1995)...
Tags: Law, Itc, Patent, White, Fed, Gorham, Crouch, Dyk, Swisa Inc, Gorham Co, Sarah Burstein Professor of Law, University of Oklahoma College of Law Converse, Versa Prods Co, Bifold Co, Egyptian Goddess Inc, So Federal Circuit

Converse: Secondary Meaning and Infringement Redefined for Trade Dress

by Dennis Crouch In its decision here, a divided Federal Circuit created a new test for secondary meaning, placed limits on trade dress infringement with an analogy to design patent law, and more . . . Converse v. ITC and Sketchers, New Balance, et al. (Fed. Cir. 2018) [ConverseITC] The ITC found that the mid-sole portion of these Converse All Star shoes was not a protected trademark — invalidating the Chuck Taylor trade dress registration (Reg. No. 4,398,753) and rejecting the existence of com...
Tags: Supreme Court, Law, Converse, Itc, Patent, White, Fed, O'Malley, PTO, Federal Circuit, Chuck Taylor, International Trade Commission, Dennis Crouch, Dyk, Lanham, In Wal Mart Stores Inc

Acorda Therapeutics: Other Patents Covering Invention Precludes Reliance on Secondary Indicia of NonObviousness

by Dennis Crouch Acorda Therapeutics v. Roxane Labs (Fed. Cir. 2018) In a 50+ page majority opinion, the Federal Circuit has affirmed a district court obviousness judgment.  Judge Taranto penned the majority opinion and was joined by Judge Dyk. Judge Newman wrote in dissent — arguing in 20+ additional pages that the majority improperly discounted the objective indicia of non-obviousness. On news of the invalidity decision, Acorda’s stock price dropped 25%. Acorda’s branded drug Ampyra is the on...
Tags: Supreme Court, Law, US, Ap, Patent, Newman, Elan, Taranto, Federal Circuit, Dennis Crouch, Dyk, Amici, Acorda Therapeutics, Acorda, Roxane Labs Fed, FDA Research Exemption

In re Maatita: Has the Court Radically Redesigned Design Patent Coverage?

By Professor Sarah Burstein, University of Oklahoma College of Law In re Maatita (Fed. Cir. 2018) – Dyk (author), Reyna & Stoll [Professor Crouch already summarized the facts and the basics of the court’s decision here. I don’t want to re-cover the same ground but I will note this isn’t the first time Judge Dyk has engaged in what Professor Crouch aptly describes as design patent “cosplay layering.” See In re Seaway, which I discuss at FN 131 here.] So, this is bad. This is really bad. Maatita c...
Tags: Law, Patent, PTO, Federal Circuit, Crouch, Zahn, Burstein, CCPA, Dyk, Sarah Burstein, Maatita, Reyna Stoll

En Banc: Court Rejects PTOs Narrow Reading of 1-Year Deadline for IPR Filing

by Dennis Crouch In an unusual en banc footnote, the Federal Circuit has ruled that the litigation time-bar found in 35 U.S.C. § 315(b) applies even in cases where the plaintiff-patentee voluntarily dismisses the lawsuit without prejudice.  Click-to-Call Tech., LP v. Ingenio, Inc. and Iancu (Fed. Cir. 2018). The statute provides: An inter partes review (IPR) may not be instituted if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner, real part...
Tags: Law, Patent, Board, O'Malley, Federal Circuit, Duval, 5th Circuit, IPR, Dennis Crouch, Dyk, Keen, Call Tech LP, Lourie, Iancu Fed, Ingenio Inc, Stephen DuVal

Saint Regis Mohawk Tribe, Allergan v. Mylan: No Tribal Immunity for IPR

By Jason Rantanen Saint Regis Mohawk Tribe, Allergan, Inc. v. Mylan Pharmaceuticals Inc., Teva Pharmaceuticals USA, Inc., AKORN, Inc. (Fed. Cir. 2018) Download Opinion Panel: Dyk (concurring), Moore (author), Reyna Last fall, Allergan transferred a set of patents relating to its Restasis product (the “Restasis Patents”) to the Saint Regis Mohawk Tribe (“the Tribe”). The Tribe promptly asserted tribal sovereign immunity in the pending inter partes review proceedings involving the Restasis patents...
Tags: Supreme Court, Law, Court, Allergan, States, Patent, Sas, Mylan, FMC, Moore, Bryson, Tribe, Reyna, The Board, Eastern District of Texas, Federal Circuit

Shenanigans, Time Bars, and Federal Circuit Oversight

Guest post by Saurabh Vishnubhakat, Associate Professor at the Texas A&M University School of Law and the Texas A&M College of Engineering.  Although Prof. Vishnubhakat was an advisor at the USPTO until June, 2015, his arguments here should not be imputed to the USPTO or to any other organization. Prof. Vishnubhakat was counsel of record for the amicus brief by patent and administrative law professors in this case. *** In its en banc decision in Wi-Fi One, LLC v. Broadcom Corp, the Federal Circu...
Tags: Texas, Supreme Court, Law, Congress, Court, Uspto, AMP, AIA, Patent, Broadcom, Prometheus, Apple Inc, APA, Mayo, Hughes, Chen

We are all FUCT

In re Bruneti (Fed. Cir. 2017) The Federal Circuit has ruled that trademark law’s bar against registering immoral or scandalous marks is an unconstitutional restriction of free speech.  Thus, on appeal the court has reversed the TTAB’s holding that Bruneti’s mark FUCT is unregistrable. (FUCT Clothing Store). This decision follows the Supreme Court’s recent decision in Matal v. Tam, 137 S. Ct. 1744 (2017).  In that case, the court held that § 2(a)’s bar on the registration of disparaging marks in...
Tags: Supreme Court, Law, Congress, Patent, Trademark Registration, Tam, Moore, PTO, Federal Circuit, Dyk, Ttab, Matal, Bruneti Fed, Bruneti, Stoll Judge Dyk

Attorney Fees: What is the meaning of “all expenses?”

In a sua sponte en banc order, the Federal Circuit has announced its intent to reevaluate the NantKwest decision permitting the PTO to recoup its attorney fees in defending a Section 145 civil action. Issue: Did the panel in NantKwest, Inc. v. Matal , 860 F.3d 1352 (Fed. Cir. 2017) correctly determine that 35 U.S.C. § 145’s “[a]ll the expenses of the proceedings” provision authorizes an award of the United States Patent and Trademark Office’s attorneys’ fees? After being finally rejected by bot...
Tags: Law, Patent, Hyatt, Fed, PTO, Federal Circuit, Stoll, Prost, United States Patent and Trademark Office, NantKwest, Dyk, NantKwest Inc, Kappos, Matal

PTAB: Serial Filing Past the Deadline and Adding Judges to Achieve a Result

by Dennis Crouch Nidec Motor v. Zhongshan Broad Ocean Motor (Fed. Cir. 2017) Serial Filings: Important statement here from the Court against allowing a PTAB IPR patent challenger to continue to file additional IPR petitions after the 1-year deadline of 315(b) via the joinder process of 315(c); and also against stacking of PTAB Board to achieve particular results on rehearing.  The court’s statement though is entirely dicta – it actually affirmed the PTAB decision here where these actions occur...
Tags: Law, Congress, Patent, Board, Boucher, PTO, Federal Circuit, NIDEC, Wallach, IPR, Dyk, PTAB, Joinder, Zhongshan Broad Ocean Motor Fed, Dennis Crouch Nidec Motor, PTAB Board

Court Jumps in to Claim Construction and Anticipation Analysis

Homeland Housewares v. Whirlpool Corp. (Fed. Cir. 2017) In a split opinion, the Federal Circuit  rejected the PTAB’s IPR validity judgment favoring the patentee Whirlpool — holding instead that the challenged claims are invalid as anticipated. Patent No. 7,581,688; IPR No. IPR2014-00877.  Judge Dyk penned the opinion joined by Chief Judge Prost. Judge Newman wrote in dissent. The underlying claimed invention is an automatically pulsed blender cycle.  The basic idea is to occasionally go through ...
Tags: Law, Whirlpool, Patent, Fed, Board, Newman, The Board, Federal Circuit, Prost, IPR, Wulf, Dyk, PTAB, Beyond Innovation Tech Co, Claim Construction and Anticipation Analysis, Homeland Housewares

Linking Patent and Trademark Attorney Fees

Romag Fasteners v. Fossil is a rare infringement case that involves allegations of both patent and trademark infringement.  The important aspect of the Federal Circuit’s decision here harmonizes the attorney fee requirements for trademark and patent cases. A jury sided with Romag – finding that Fossil’s magnetic snaps infringed both the asserted patent and trademark (product design). (U.S. Patent No. 5,722,126 and U.S. Trademark Reg. No. 2,095,367). The jury returned a verdict for Romag, finding...
Tags: Law, Circuit, Fossil, Patent, Newman, Second Circuit, Federal Circuit, Dyk, Romag Fasteners, Romag, Supreme Court s Octane Fitness

Please Define What you Mean by Ordinary Meaning

by Dennis Crouch In NobelBiz v. Global Connect, a jury sided with the patentee-finding that global connect infringed the caller ID modifying patents.[1] On appeal however the Federal Circuit has reversed on claim construction – in a non- precedential opinion. The claimed invention is associated with telemarketing, and the idea is to “provide a callback number … that may be closer to or local to the target.” (Quoting patent specification).  The claims themselves require an “outbound call,” “repl...
Tags: Law, Global, Patent, Fed, Newman, Hughes, District Court, LLC, Federal Circuit, Dennis Crouch, Dyk, Samsung Elecs Co, NobelBiz, Micro Int ' l Ltd, Beyond Innovation Tech Co

Paying Attorney Fees on Appeal

When the PTO refuses to issue a patent, the applicant can appeal directly to the Court of Appeals for the Federal Circuit or instead file a civil action under 35 U.S.C. 145.  The Section 145 action gives the applicant the opportunity to further develop facts, including live expert testimony and cross-examination. An oddity of the statute is its statement that “all the expenses of the proceedings shall be paid by the applicant.”  In its 2010 Hyatt decision, the Federal Circuit ruled that the expe...
Tags: Law, Uspto, Patent, Hyatt, PTO, Court of Appeals for the Federal Circuit, Federal Circuit, Stoll, Prost, NantKwest, Dyk, Matal the Federal Circuit, Hans Klingemann

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