A recent Federal Circuit decision in Larry G. Junker v. Medical Components, Inc., Martech Medical Products, Inc., 2021-1649, 2022 U.S. App. LEXIS 3647 (Fed. Cir. Feb. 10, 2022) serves as a reminder for businesses to carefully watch commercial activity with respect to the bar date for patent applications.
The subject of the appeal is Mr. Junker’s design patent claiming an ornamental design for a handle for an introducer sheath shown below with solid lines.
Mr. Junker accused the defendants of infringing the patented design. In response, the defendants countered in-part that the ... Read More ›
Companies face many hurdles when bringing a new product to market, including technical problems, regulatory requirements and changing market forces. Introducing a new drug or medical device to the market introduces additional regulatory hurdles before both the Food and Drug Administration (FDA) and the US Patent and Trademark Office (USPTO). The strategies for meeting these regulatory requirements may often seem contradictory, and can be a trap for the unwary. This ultimately doomed the Belcher Pharmaceutical patent as will be explained in detail below.
When filing a patent ... Read More ›
It takes two to tango, and if you are like many of us still working remotely, you may use a two-step identification method for accessing a secure network, such as the Duo Security two-part authentication dance to log onto your remote platform. Well, you might be dancing to something different one day now that the Federal Circuit has upheld validity of a patent owned by Duo competitor CosmoKey. In CosmoKey Solutions, GMBH & Co. KG. v. Duo Security, LLC (Fed. Cir, Oct. 3, 2021), the appeals court reversed a Delaware District Court ruling that CosmoKey’s authentication patent U.S ... Read More ›
Kite Pharma appealed a final judgement that (1) claims 3, 5, 9, and 11 of U.S. Patent No. 7,446,190 (the ’190 Patent) are not invalid for lack of written description or enablement, (2) the ’190 patent’s certificate of correction is not invalid, and (3) Juno Therapeutics, Inc., and Sloan Kettering Institute for Cancer Research (collectively, Juno) were entitled to $1,200,322,551.50 in damages. Let that sink in. $1,200,322,551.50 in damages.
The ’190 Patent related to CAR T-cell Therapy. T-cells are part of your immune system, and have ... Read More ›
After more than a decade of litigation, the Supreme Court of the United States concluded that Google’s use of Oracle’s software code was fair use.
The dispute centered on use of Oracle’s Java programming language’s application programming interfaces (APIs) and source code, which was used in early versions of Google’s Android operating system. Oracle sued Google, arguing that the APIs were copyrightable. In response, Google asserted a defense of fair use.
Below we share the highlights from the Court’s long-awaited opinion.
A Victory for Fair Use
The Court found in ... Read More ›
Issue preclusion and claim preclusion are two strategic defenses that an accused infringer can rely upon if that party was previously cleared of patent infringement.
Issue preclusion, or collateral estoppel, precludes a party from relitigating an issue actually decided in a prior case and necessary to the judgment. Under claim preclusion, or res judicata, a judgment on the merits in a prior lawsuit bars a second lawsuit involving the same parties or their privies based on the same cause of action. Claim preclusion also bars claims that could have been brought in the first action ... Read More ›
In Arthrex, Inc. v. Smith & Nephew, Inc., Arthrocare Corp., No. 2019-2140 (Fed. Cir. October 31, 2019), the Federal Circuit raised Patent Owners’ hopes that inter partes review (IPR) of patents could potentially be constitutionally defective, based on how Patent Trial and Appeal Board (PTAB) judges are appointed. But the court then dashed those hopes by curing the constitutional defect in the statute controlling Administrative Patent Judge (APJ) appointment. For those accused of patent infringement, breathe easy; IPRs survive and can be used to minimize the threat of patents.Read More ›
While it is sometimes the case that intellectual property lawsuits involve subject matter that is overly technical or perhaps difficult to relate to, there are times when these lawsuits involve subjects from popular culture that capture the imagination. That is just the case with two recent lawsuits, one involving a beloved figure in Philadelphia sports, and the other focused on the Old Spice commercial jingle.
The subject matter of The Phillies, L.P. v. Harrison/Erickson, Incorporated et al, 1:19-cv-07239 (August 2, 2019), pending in the U.S. District Court for the Southern ... Read More ›
Does a generic term in one country render trademark protection unavailable in another? Not in the U.S.!
Under U.S. law, generic trademarks are common terms used to refer to products or services. What you’re using right now to read this blog post – a computer, a phone – no one can claim rights to these terms. Generic trademarks are not qualified for protection and cannot be registered. Conversely, even the strongest of trademarks can, over time, become generic and lose their registration. Products like aspirin, linoleum, and yo-yo were once registered as federal trademarks ... Read More ›
On March 21, 2018, a split Ninth Circuit Court of Appeals handed down a verdict confirming copyright infringement in the case of the song “Blurred Lines,” and the decision left many in the music community “all shook up.” The song, recorded in 2012 and released in 2013, hit number one on the Billboard Top 100 songs in 25 countries and became a best-selling single with more than 14.8 million sales. It was also nominated for Record of the Year and Best Pop Duo/Group Performance at the 2013 Grammy Awards. As the song rapidly climbed the charts, media interest in the song grew due to its ... Read More ›
Propagating news program clips online, such as on social media including Instagram and Twitter, just became more difficult.
On Tuesday, February 27, 2018, the United States Court of Appeals for the Second Circuit handed down a decision holding that TVEyes, a search engine for video clips obtained through media-monitoring, was in violation of copyright law for unlawfully re-distributing the copyrighted work of others.1 The decision reversed a 2014 holding by the District Court that the service was protected by the doctrine of fair use and as a result, has the potential to ... Read More ›
On February 12, 2018, Judge Frederic Block of the U.S. District Court for the Eastern District of New York entered judgment in the amount of $6.7 million dollars in favor of plaintiff graffiti artists whose building murals were destroyed in 2013 by the owner of the building, in violation of the Visual Artists Rights Act of 1990 (“VARA”), 17 U.S.C. § 106A. While the ruling in this case may seem like a coup for artists, the implication may be that building owners may be less enthusiastic about commissioning creative works to adorn their building’s exteriors.
THE LAW – The Visual ... Read More ›
The identification of the proper venue for commencing a patent infringement or declaratory judgement action was rather straight forward for a number of years. However, when the U.S. Court of Appeals for the Federal Circuit, which has exclusive appellate jurisdiction in patent matters, addressed the venue issue in VE Holding v. Johnson Gas Appliance, 917 F.2d 1574 (Fed. Cir. 1990), it liberalized the venue requirement to where the defendant is subject to the court's personal jurisdiction. This decision lead to lower courts applying a liberal view of personal jurisdiction when ... Read More ›
Since the passage of the Leahy-Smith America Invents Act (“AIA”), it has been extremely difficult, if not impossible, for a patent owner whose patent is challenged in an inter partes review (IPR) to amend the challenged claims. As of April 30, 2016, the Patent Trial and Appeal Board (PTAB) had completely denied 112 of 118 patent owner motions to amend and partially denied motions to amend in four of the six remaining IPRs.
Today’s en banc decision by the United States Court of Appeals for the Federal Circuit in Aqua Products, Inc. v. U.S. Patent and Trademark Office, Case No ... Read More ›
On Tuesday, May 30, 2017, the United States Supreme Court issued another unanimous decision in an intellectual property appeal. In Impression Products, Inc. v. Lexmark International, Inc., No. 15–1189, the Supreme Court ruled that (i) a patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose, and (ii) an authorized sale outside the United States, just as one within the United States, exhausts all rights under the Patent Act.
The case at issue involved toner cartridges. The patent owner ... Read More ›
The United States Supreme Court issued its opinion in the much-anticipated TC Heartland LLC v. Kraft Foods Group Brands LLC case, No. 16–341, on May 22, 2017.
Under the unanimous decision, the term “reside[nce]” in the federal venue statute refers only to the state of incorporation of a U.S. corporate defendant in a patent lawsuit. This holding could eliminate the “forum shopping” that brings many defendants to particular courts.
The TC Heartland case considered the proper venue for patent cases as codified in 28 U.S.C. § 1400(b). Section 1400(b) limits venue to judicial ... Read More ›
Patents have had unusual attention from the U.S. Supreme Court recently. In addition to high-profile cases like Alice v. CLS Bank International, 134 S. Ct. 2347 (2014), that dramatically changes the landscape for technology-based patents, Samsung v. Apple, 137 S. Ct. 429, 431 (2016), that has the potential to dramatically change the landscape for damages in design patent infringement, and Life Technologies v. Promega, 2017 U.S. LEXIS 1428 (U.S. Feb. 22, 2017), which tests the limits of liability under U.S. law for infringement abroad, the court is poised to consider whether the ... Read More ›
- Practical Considerations for Information Disclosure Statements in Light of Elekta
- Challenge to Prior Art in IPR Petitions – Is It Analogous Art?
- The Plain and Ordinary Meaning of the Petitioner’s Burden in an IPR
- Patent Owners Must Consider New Terminal Disclaimer Strategies in View of the Federal Circuit’s Decision in In re Cellect
- Getting A Vector on Additional Pre Institution Briefing in IPRs
- Federal Circuit Precedential Opinion Raises New Issues with Obviousness-Type Double Patenting for Related Patents Having Different Expiration Dates
- “Hey AI, draw me like one of your French girls” – Court Holds AI-Generated Art Cannot be Copyrighted
- A Reasonable Expectation of Success in an IPR Petition
- After 43 Years The Bayh-Dole Act Still Reigns Over US Government Funded Innovations
- Anything You Say May Be Used For Or Against You In A Court Of Patent Law
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