Posts filtered by tags: Patent[x]


Confronting Your Accuser via ZOOM

by Dennis Crouch Federal Courts have been delaying trials since March 2020. There have been a handful here and there – but not jury trials. One patent case preparing for a jury trial before Judge Leonard Stark (D.Del) is Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC, 2020 WL 3605623 (D. Del. July 2, 2020).  The lawsuit was filed back in 2017 alleging infringement of Sunoco’s patents for cutting its gasoline with cheaper butane. US9494948 and US9606548 (“continuous i...
Tags: Law, Court, Patent, Stark, Sunoco, Dennis Crouch, Robert A Matthews, Leonard Stark D Del, Sunoco Partners Marketing Terminals L P, Powder Springs Logistics LLC

Patently-O Bits and Bytes by Juvan Bonni

Recent Headlines in the IP World: Malathi Nayak: Fortress Gets U.S. Backing in Apple Patent ‘Puppeteering’ Suit (Source: Bloomberg Law) Ian Lopez: Apple Gets Green Light in Validity Challenges to Mobile Patent (Source: Bloomberg Law) Stephen Lambrechts: MacBooks Could Get Retractable Keyboards, According to Apple Patent Application (Source: Techrader) Allen Kim: Apple Has Been Granted a Patent for Software That Would Allow for Socially Distant Group Selfies (Source: CNN) Source: USPTO ...
Tags: Law, Cnn, Wipo, Patent, Malathi Nayak, Juvan Bonni, Bloomberg Law Ian Lopez, Bloomberg Law Stephen Lambrechts, Techrader Allen Kim, Daniele Fabris, Joseph Fishman, Rochelle Cooper Dreyfuss, Jerome H Reichman

One more on Aunt Jemima

by Dennis Crouch I’m sure that there will be a few references to the Aunt Jemima trademarks in upcoming law review articles. Let me direct you to a handful of court decisions regarding the mark. The cases offer an important look at how judges saw race & commerce in the mid-20th century. The courts here effectively concluded that only one company could sell flour (or syrup) branded with the caricature of a black-skinned person. In Aunt Jemima Mills Co. v. Kirkland Distribg. Co., 48 App. D.C. 2...
Tags: Law, Kodak, Patent, Rich, Ucla, Anheuser Busch, D C Circuit, Quaker, Kirkland, Westlaw, 2nd Circuit, Dennis Crouch, Jemima, Manring, Giles Rich, Rigney

In this Case, Persuasive Authority Must be Considered

by Dennis Crouch In law school, we talk about decisions that are binding as precedent and others that are not binding but that may be considered as persuasive authority.  There is very little precedent on when persuasive authority must be considered, and usually we say something flippant about ignoring the other decisions.  The case below is one that comes out the other way — the court abused its discretion by failing to consider persuasive authority.  Electronic Communication Techs., LLC v. S...
Tags: Florida, Supreme Court, Law, California, Patent, Fed, District Court, Fla, Federal Circuit, McKinley, ECT, Dennis Crouch, Techs LLC, Shopperschoice, Electronic Communication Techs LLC, ShoppersChoice Com LLC Fed

Patent Law and Booking.Com: as a whole or by parts

Patent scholars and attorneys will recognize the battle in between the majority (Justice Ginsburg) and dissent (Justice Breyer) looks much the same to the debate over patentable subject matter. As a whole or by parts? — Dennis Crouch (@patentlyo) June 30, 2020 The difference: In trademark law Justice Breyer dissented against the 8-1 majority supported strong IP rights and focused on the booking dot com mark "as a whole" In patent law the 9-0 court agreed with Br...
Tags: Law, Patent, Ginsburg, Breyer, Dennis Crouch

time to register your

United States Patent & Trademark Office (USPTO) v. Booking.Com B.V. (Supreme Court 2020) [Full Decision PDF] In this trademark case, the USPTO asked the court to implement its “nearly per se” rule that a generic term remains generic even if coupled with a generic top level domain (such as “.com”).  The 4th Circuit sided with BOOKING.COM and the Supreme Court has now affirmed: “[W]e discern no support for the PTO’s current view in trademark law or policy.” Id. According to the majority, the ques...
Tags: Supreme Court, Law, Uspto, Patent, Travelocity, Ginsburg, PTO, Goodyear, Sotomayor, Breyer, United States Patent Trademark Office USPTO, Booking com, Goodyear Rubber Co, Booking Com B V Supreme Court, Goodyear 's India Rubber Glove Mfg Co

Vestigial Use

by Shubha Ghosh, Crandall Melvin Professor of Law and Director, Syracuse Intellectual Property Law Institute As companies voluntarily retire their offensive trademarks, two questions tug at whatever passes for a conscience nowadays.  First, can these undesirable marks come back, revived by whomever sees a market niche for these symbols? This may seem like a ridiculous possibility, but on June 21, 2020, an Intent to Use Application was filed  on the word mark “Aunt Jemima” by Retrobrands, a Flori...
Tags: Supreme Court, Law, Court, Budapest, United States, Siberia, Patent, Tam, Tom, Florida LLC, Benjamins, Quaker Oats, Memento Park, Gerhardt, Shubha Ghosh Crandall Melvin Professor of Law, Syracuse Intellectual Property Law Institute

Abandoning Disparaging Marks

As TM owners willingly give up their racially disparaging and gender stereotyping marks, are there ways to ensure that the marks are not reoccupied by others wanting to free ride on their fame and infamy? Guest Post by Deborah R. Gerhardt, Reef C. Ivey II Excellence Fund Term Professor of Law at UNC School of Law Quaker Oats says it plans to phase out its “Aunt Jemima” brand. The character has long been criticized as a stereotypical representation of black women as inferior servants. In recognit...
Tags: Supreme Court, Law, South Park, California, China, Uspto, Washington Redskins, Trevor Noah, Patent, Redskins, Usc, Tam, Company, Mark Cohen, Colgate Palmolive, Southpark

“The technology involved in this appeal is simple” and Allows Common Sense to Substitute for Elements Not in the Prior Art

by Dennis Crouch B/E Aerospace v C&D Zodiac (Fed. Cir. 2020) Commercial aircraft lavatories are always oddly shaped in order provide some amount of functionality while minimizing space usage. B/E’s patent here covers the shape of the bathroom that includes the carve-out for a seat just forward — notice the “s” shape of the wall in the image below.  On appeal here the Federal Circuit has affirmed the PTAB obviousness decision.  This outcome was easy to guess once I read the court’s opening discus...
Tags: Law, Patent, Anderson, Board, E Aerospace, Federal Circuit, Dennis Crouch, PTAB, C D Zodiac Fed

Further, and happily, participation in the U.S...

Further, and happily, participation in the U.S. patent system, as patentees and as licensees, is available to citizens and non-citizens alike.  Carl Schenck, A.G. v. Nortron Corp. , 713 F.2d 782, 784 (Fed. Cir. 1983)
Tags: Law, Patent, Fed, Carl Schenck, Nortron Corp

Will this Limit on Patent Term Extension Drive a Rewriting of Hatch-Waxman?

The court today denied two en banc petitions: Biogen International GmbH v. Banner Life Sciences LLC, 20-1373 (Fed. Cir. 2020) The law allows for a limited extension of patent term based upon regulatory delays – such as FDA delay in approving a drug for sale.  The statute is unfortunately complex and poorly written. 35 U.S.C. 156. In this case, Biogen received a patent term extension for its Patent US7619001 associated with using the drug Tecfidera (MS treatment). By the time of the litigation, t...
Tags: Law, Congress, Fda, Patent, Fed, Hatch Waxman, Biogen, Federal Circuit, IPR, Kevin Noonan, Dish Network LLC, Biogen International GmbH, Banner Life Sciences LLC, Dragon Intellectual Property

Is Termination a form of Institution (and thus Non-Appealable)

BioDelivery Sciences International, Inc. v. Aquestive Therapeutics, Inc., fka MonoSol RX, LLC, No. 19-1381 (Supreme Court 2020) This case is procedural and it focuses – once again – on the unique two-step, two-decision-maker divide by Congress for inter partes review (IPR) proceeding. Step 1 – Institution: The USPTO Director decides whether to grant an IPR petition and “institute” proceedings.  This decision is “final and nonappealable.” Step 2 – Trial: Once the IPR is instituted, the PTAB take...
Tags: Supreme Court, Law, Uspto, Patent, Sas, Fed, Newman, Patent Office, Reyna, Federal Circuit, IPR, BioDelivery Sciences International Inc, BioDelivery, SAS Institute, PTAB, Iancu

Our Summer Speaker Series: COVID-19 and Innovation Policy

By Jason Rantanen The Iowa Innovation, Business & Law Center is hosting a summer speaker series featuring 30-minute talks by some of the leading legal scholars writing on innovation and COVID -19.  All talks will be via Zoom webinar on Thursdays at 3:30 ET/2:30 CT/ 1:30 MT/12:30 PT. (starting this Thursday). Our speakers are: June 25: Jacob Sherkow on COVID -19 Related Drug Shortages and Innovation Policy July 2: Nicholson Price on Public Funding and COVID -19 Innovation July 9: S...
Tags: Law, Patent, Jason Rantanen, Lisa Larrimore Ouellette, Sapna Kumar, Jacob Sherkow, Iowa Innovation Business Law Center, Nicholson Price, Rachel E Sachs

Supreme Court End of Term 2020

The Surpeme Court seems to have ended its term for patent cases today – although the court has at least one more week of business before the summer break. Petitions denied: Collabo (retroactive IPR violates due process & takings); Celgene (same); Enzo (Same) Hospira (limits on DOE); CJ CheilJedang (same) Comcast (mootness of ITC decision for expired patent) Federal Circuit decision Vacated & Remanded:  Emerson Electric Co. (Thryv follow-on case) Consideration of one fully briefed petitio...
Tags: Supreme Court, Law, Comcast, Uspto, Itc, DOE, Patent, Celgene, Federal Circuit, IPR, Surpeme Court, CheilJedang, Enzo Same Hospira, Emerson Electric Co Thryv, Chrimar Systems Chrimar

Invention of a Slave and the Ongoing Movement For Equal Justice

by Dennis Crouch The Black Lives Matter movement, ongoing protests, and statements of alliance have given me new hope that our society and its institutions are ready to take another step toward equal justice. In 1857, the US Supreme Court decided Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) and affirmed what various state courts had previously decided — that under the law, free (non-enslaved) black and brown people were not United States Citizens. [A]s long ago as 1822, the Court of App...
Tags: Law, US, Chicago, Canada, United States, Missouri, Jim Crow, Patent, Columbia, US supreme court, State, Scott, Stan, Swanson, US Patent Office, The Black Lives Matter

Preclusion: Expanding Upon the Kessler Doctrine

by Dennis Crouch In In re PersonalWeb Techs. LLC, 2019-1918, 2020 WL 3261168 (Fed. Cir. June 17, 2020), the court reinvigorates the Kessler Doctrine — holding preclusion is triggered even in cases voluntarily dismissed (with prejudice) by the patentee and is subsequently operable to block actions against subsequent allegations of infringement against the original defendant its customers. The doctrine is seen as a gap-filler for a situation not covered by either issue or claim preclusion.  Anothe...
Tags: Amazon, Supreme Court, Law, Court, Davis, Patent, Amazon Web Services, Kessler, Fed, Freeman, Office Depot Inc, Federal Circuit, Dennis Crouch, Goodyear Tire Rubber Co, Fed Cir, SpeedTrack Inc

Claim Specificity Required for an Inventive Concept

Dropbox, Inc. v. Syncrhonoss Tecnologies, Inc. (Fed. Cir. 2020) The appellate court here invalidates three Dropbox patents as ineligible (abstract ideas) and also confirms that the lawsuit was properly disposed on the pleadings. U.S. Patent Numbers 6,178,505, 6,058,399, and 7,567,541. Looking at the ‘505 patent.  Claim 8 requires the following: An “apparatus” for providing an information resource to a user.  The apparatus has the following element: “an access checker” that (a) compares the “tr...
Tags: Law, Patent, Federal Circuit, Dropbox Inc, Alice Step, Syncrhonoss Tecnologies Inc Fed

Who’s on First? Personal Jurisdiction and the First-to-File Rule

by Dennis Crouch In re Seattle SpinCo, Inc. (Fed. Cir. 2020) (a) Wapp Tech first sued UK software company Micro Focus plc (MF PLC) in E.D. Tex. for infringing several of its patent, including U.S. Patent No. 9,971,678 (system for testing app for mobile device). (b) MF PLC then had a two fold response.  First, through its US subsidiaries (MF LLC and SpinCo), the company filed a declaratory judgment (DJ) action in D.Del. Then, the MF PLC moved for dismissal in the Texas case for lack of personal j...
Tags: UK, Texas, Law, US, Delaware, Patent, Federal Circuit, SpinCo, Petitioner, Tex, Dennis Crouch, WAPP, Seattle SpinCo Inc Fed, Wapp Tech, Micro Focus plc MF PLC, MF PLC

When does a PTO Cancellation undermine a District Court Judgment of Infringement?

PhaZZer v. Taser (Supreme Court 2020)  [Petition for writ of certiorari] PhaZZer defaulted in the litigation and the district court awarded $7.8 million to Taser. On appeal, the Federal Circuit quickly issued a R.36 no-opinion affirmance in 2019.  Then, in February 2020 the USPTO finally cancelled the claims of the asserted patent (via reexamination). US7234262. Because of the bankruptcy stay, PhaZZer apparently had time to wait for the USPTO reexamination decision, although that case has no...
Tags: Supreme Court, Law, Uspto, Taser, Patent, The Supreme Court, District Court, PTO, US Court of Appeals for the Federal Circuit, Federal Circuit, Petitioner, Chrimar, PhaZZer, Taser Supreme Court

Doll or Manikin

I love the elvish doll designed by Dr. Dudley Joy Morton uncovered by Prof. Burstein.  Morton was an orthopedic surgeon who was also an amateur “paleoanthropologist.”  He was apparently the first to suggest that Australopithecus was a hominid.  Morton published several books about feet, but only one related to gnomes & elves: The Grampas’ Toyshop (1922), a book of Christmas poetry. “After lights out on Christmas Eve, Grampa Stabler, an old elf, takes Ned and Sister to Toyland to meet Santa Claus...
Tags: Law, Santa Claus, Patent, Morton, Ned, Toyland, Australopithecus, Dudley Joy Morton, Burstein Morton, Grampa Stabler

How Long May a Judge Delay in Explaining its Order?

by Dennis Crouch In re Apple (Fed. Cir. 2020) [Apple Mandamus Petition] On June 16, Apple petitioned the Federal Circuit for writ of mandamus on forum non-conveniens.  Uniloc has apparently sued Apple in 24 different lawsuits in E.D. Tex. and W.D. Tex. The vast majority of those cases have been transferred to N.D.Cal. (21 of them — transferred by Judges Gilstrap and Yeakel; 2 are stayed but likely to transfer or be dismissed later).  This lawsuit is the last active case. The particular claims of...
Tags: Apple, Law, Court, Patent, Albright, Gilstrap, Waco, Federal Circuit, Tex, Dennis Crouch, Yeakel, Apple Fed, Uniloc, Markman, N D Cal, Yeakel W D Austin

Facilitating Innovation to Fight Coronavirus Act

S. 3630. I wonder what percentage of patentees would take this trade-off.  Patents covering COVID-19 related inventions rights don’t begin until the National Emergency officially ends; 10 years is then added to the patent term. Patents impacted: Eligible Patent – a patent issued for a new or existing pharmaceutical, medical device, or other process, machine, manufacture, or composition of matter, or any new and useful improvement thereof used or intended for use in the treatment of the Coronavi...
Tags: Law, Patent

Assignor Estoppel

In Hologic, Inc. v. Minerva Surgical, Inc., 957 F.3d 1256 (Fed. Cir. 2020), the court upheld the doctrine of “assignor estoppel” but also found that it could be collaterally attacked via IPR since the PTO does not enforce the doctrine.  The panel – led by Judge Stoll — also called for reconsideration of the doctrine “as it applies both in district court and in the Patent Office.” The patentee in this case want the the court to broadly hold that assignor estoppel cannot be circumvented via IPR pr...
Tags: Law, Patent, Fed, PTO, Patent Office, Federal Circuit, Hologic Inc, Stoll, Mark Lemley Stanford, Minerva Surgical Inc

Bostick v. Clayton County Georgia

It is a slow patent news day, but the Supreme Court offered a big employment discrimination decision in Bostick v. Clayton County Georgia (Supreme Court 2020). The opinion joins together several cases challenging employment discrimination on the basis of gender identity (transgender) and also sexual orientation (homosexuality). Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of an “individual’s race, color, religion, sex, or national origin.”   Here, t...
Tags: Supreme Court, Law, Patent, Bostick, Gorsuch, Clayton County Georgia, Alito Kavanaugh, Clayton County Georgia Supreme Court

Patently-O Bits and Bytes by Juvan Bonni

Recent Headlines in the IP World: Atty. Teresa A. Reguly , Atty. Eileen McMahon, Atty. Andrew Shaughnessy,Atty. Yael Bienenstock, and Atty. Andrew Bernstein: Pause On PMPRB Reform: Implementation Of New Pricing Regulations Delayed To 2021 (Source: Mondaq) Atty. Pablo Tseng: The Admissibility of Patent Prosecution History as Evidence in Canada (Source: McMillan) Ian Lopez: Patent Office Aggregates Covid-19 Information on its Site (Source: Bloomberg Law) Dev Kundaliya: Apple Patent Application...
Tags: Law, Canada, Uspto, Patent, Stephen Key, Andrew Bernstein, Bits and Bytes, Juvan Bonni, Legal Solutions, Eileen McMahon, Andrew Shaughnessy, Yael Bienenstock, Mondaq Atty Pablo Tseng, McMillan Ian Lopez, Bloomberg Law Dev Kundaliya, Forbes Prof Craig Allen Nard

Change in the Law not Enough for R.60(b) Relief from Judgment

Medinol Ltd. v. Cordis Corp. (Fed. Cir. 2020) (nonprecedential) Fed. R. Civ. Pro. 60 is entitled “Relief from a Judgment or Order” and allows a party to request that a district court reconsider a prior order. R. 60(b) provides a list of specific reasons for granting relief but concludes with a catch-all “any other reason that justifies relief.” R. 60(b)(6).  At times, 60(b)(6) motions can be quite powerful — especially because the rule does not set a firm deadline other than recognizing that the...
Tags: Supreme Court, Law, Patent, Fed, U S Supreme Court, SCA, Federal Circuit, Petrella, Medinol, Medinol Ltd, Cordis Corp, SCA Hygeine, Metro Goldwyn Mayer Inc, SCA Hygiene Prods Aktiebolag, First Quality Baby Prods LLC, Cordis Corp Fed

Gentlemen. It has been a privilege playing with you tonight.

by Dennis Crouch Ubisoft v. Yousician (Fed. Cir. 2020) (nonprecedential) Ubisoft (Rocksmith) and Yousician are competitors in the music-lesson software market.  Truthfully, I really enjoy using these tools — their main problem is the added screen time. In 2018, Ubisoft sued Yousician for infringing its U.S. Patent 9,839,852 covering an “Interactive Guitar Game.”  Before the opening act even started, the district court dismissed the case on failure-to-state-a-claim. Fed. R. Civ. Pro. 12(b)(6). ...
Tags: Law, Ubisoft, Patent, Fed, Civ, Federal Circuit, Dennis Crouch Ubisoft, Yousician Fed, Ubisoft Rocksmith

Internet Law at the Supreme Court

Although I love teaching patent law, my favorite class to teach is often Internet Law. This next year I’ll be teaching it both to law students and as a sophomore-level undergraduate class. One thing that is great about the class is that all of the students already have a set of preconceived notions about how internet society should work, but without much information about the legal background. Here are three cases Supreme Court petitions that I’ve been following that are closely related to civil...
Tags: Facebook, Supreme Court, Law, Obama, Linkedin, University, Republican Party, Patent, Trump, Hunt, 9th Circuit, Board of Regents, University of New Mexico, UNM, CDA, Twitter Google

Backdating at the Board: Provisionals & Prior Art

by Dennis Crouch Merck Sharp & Dohme Corp. v. Microspherix LLC (Fed. Cir. 2020) The Federal Circuit here affirms the PTAB IPR final determination that Merck failed to prove the Microspherix claims invalid. US9636401; US9636402; US8821835. Microspherix sued Merck — accusing Merck’s implantable contraceptive of infringing. Merck responded with the three IPR petitions. The patents here cover implantable therapeutic/diagnostic devices that also have a radiopaque marker that helps find the device aft...
Tags: Law, Merck, AIA, Patent, Fed, Lee, Federal Circuit, IPR, Zamora, Dennis Crouch, Merck Sharp Dohme Corp, Cuozzo Speed Techs LLC, Drinkware LLC, Federal Circuit Backtracks, PTAB IPR, Microspherix LLC Fed

Case must be “Exceptional” for Attorney fees in Patent or TM case

Munchkin, Inc. v. Luv N’ Care, Ltd. (Fed. Cir. 2020) This lawsuit centers on Munchkin’s U.S. Patent 8,739,993 covers a “spillproof drinking container” as well as associated trademark and unfair competition claims.  Munchkin sued and LNC responded with an inter partes review petition. The PTAB cancelled the claims; the Federal Circuited affirmed without opinion (R.36); and Munchkin then dismissed its patent claims in the district court.  By that point, Munchkin had also dropped all of its non-pat...
Tags: Law, LNC, Patent, Federal Circuit, Munchkin Inc, PTAB, Munchkin, Luv N ' Care Ltd Fed

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