Intellectual Property Law

Pre-KSR obviousness instruction does not result in plain error post-KSR

Posted on January 10, 2008
In a decision this week, the Federal Circuit affirmed findings of infringement of two patents by two defendants.  The court also reversed an invalidity ruling of one of one claim that had been the subject of reexamination, but remanded the case to the district court for a determination of the obviousness of one claim based on a revised claim construction and for a determination of damages...

Fifth Circuit: Prevailing defendant in file sharing copyright case not entitled to attorney fees

Posted on January 07, 2008
On Friday, the Fifth Circuit affirmed a district court finding denying an award of attorney's fees to a defendant who had been sued for copyright infringement by several recording companies, as part of the industry's ongoing litigation efforts to curb file sharing...

Ninth Circuit: Karaoke is audiovisual work, so not fully covered by § 115 compulsory license

Posted on January 03, 2008
In a decision yesterday, the Ninth Circuit affirmed a district court's dismissal of a complaint for declaratory judgment by a karaoke device manufacturer without leave to amend for failure to state a claim.  The complaint sought a declaration that a compulsory license under § 115 of the Copyright Act was a sufficient license for a karaoke device to not only play music, but also display the lyrics in real time in coordination with the music...

Amici piling up in lawsuit challenging new claim and continuation rules

Posted on December 31, 2007
Although the parties' motions for summary judgment have been filed, the amici keep coming forward in the consolidated lawsuits challenging the new claim and continuation rules.  This brings the total number of amici in this case over 30, filing 19 20 (as of 1/4) total briefs...

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Ninth Circuit clarifies differences between proof of protectable trademark and proof of infringement

Posted on December 31, 2007
In a decision Friday, the Ninth Circuit clarified the differences in use requirements to prove the existence of a protectable trademark as compared to trademark infringement.  The plaintiff and defendant both used the same mark, but in connection with different services...

Fourth Circuit: Subpoena to foreign corporation valid even though no U.S. business contacts

Posted on December 31, 2007
The Fourth Circuit last week addressed a district court's ability to issue subpoenas to foreign witnesses in USPTO administrative proceedings. The court held that a district court may issue a Rule 30(b)(6) subpoena to a foreign corporation who is party to an opposition, even if the party has no officers, directors or managing agents who reside within the jurisdiction...

Term defined in specification limited even though partially characterized as exemplary

Posted on December 28, 2007
In a recent decision, the Federal Circuit vacated and remanded a limited exclusion order by the International Trade Commission.  The ITC entered an exclusion order that prevented importation of products produced by a method that infringed two patents...

Third Circuit: Some store brand sucralose packaging confusing; injunction denial partially reversed

Posted on December 28, 2007
In a Christmas Eve decision, the Third Circuit partially reversed a district court's denial of a preliminary injunction regarding "store brand" sucralose sweeteners.  McNeil Nutritionals, makers of Splenda®, brought suit against a company that produces several different sucralose products that bear the store's name and compete with Splenda®...

AUTM releases 2006 annual licensing survey

Posted on December 27, 2007
The Association of University Technology Managers (AUTM) has released its summary report for the 2006 AUTM U.S. Licensing Activity Survey.  The yearly survey is an ongoing effort of the organization to assist in informing the public about academic technology transfer professionals in order to improve public understanding of their activities...

Fifth Circuit: Beyoncé song does not infringe songwriter's copyright

Posted on December 26, 2007
In a decision last week, the Fifth Circuit affirmed a district court's grant of summary judgment of no copyright infringement.  A plaintiff brought suit against the singer Beyoncé Knowles and several parties with whom she is associated alleging that Beyoncé's song "Baby Boy" infringed the plaintiff's work...

Motions for summary judgment filed in lawsuit challenging claim and continuation rules

Posted on December 21, 2007
Yesterday the parties filed their motions for summary judgment in the cases brought by GlaxoSmithKline (GSK) and Dr. Tafas challenging the USPTO's new claim and continuation limit rules.  Apparently the earlier order setting the deadline for amicus briefs did not apply to the parties' motions, as earlier speculated...

Eleventh Circuit: No likely confusion between stylized logos for competing welding companies

Posted on December 20, 2007
In a decision this week, the Eleventh Circuit affirmed a grant of summary judgment of no service mark infringement.  The court held that there were no triable issues of fact as to whether the companies' service marks were confusingly similar, the existence of actual confusion, and the defendant's intent...

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