Ewa A. Wojciechowska
Subscribe to Ewa A. Wojciechowska's PostsEwa A. Wojciechowska focuses her practice on intellectual property litigation matters. Read Ewa Wojciechowska's full bio.
Ex Parte Reexamination Not Allowed After Failed IPR Challenge
By Ewa A. Wojciechowska on Oct 14, 2021
Posted In Patents
The US Court of Appeals for the Federal Circuit found that ex parte reexamination was unavailable to a challenger who repeatedly tried and failed to raise the same arguments for the same patent in a prior inter partes review (IPR) proceeding. In re: Vivint, Inc., Case No. 20-1992 (Fed. Cir. Sept. 29, 2021) (Moore, C.J.)...
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Second Circuit: Supreme Court Google Precedent Doesn’t Alter Copyright Law’s Fair Use Analysis
By Sarah Bro and Ewa A. Wojciechowska on Sep 2, 2021
Posted In Copyrights
Addressing fair use as an affirmative defense to copyright infringement, the US Court of Appeals for the Second Circuit amended its recent opinion, reversing a district court’s summary judgment in favor of fair use. The Court did not change its original judgment but took the opportunity to address the recent Supreme Court of the United...
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Patents and Trade Secrets Aren’t Mutually Exclusive: The Nuanced Nature of Trade Secret Protection
By Ewa A. Wojciechowska on Aug 19, 2021
Posted In Trade Secrets
Addressing the nuanced nature of trade secret protection of patented products, the US Court of Appeals for the Seventh Circuit affirmed a district court’s trade secret protection determination, finding that the asserted trade secrets were not publicly disclosed and had been adequately protected. Life Spine, Inc. v. Aegis Spine, Inc., Case No. 21-1649 (7th Cir....
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Even Judges Have a Boss: PTAB Must Sufficiently Articulate its Obviousness Reasoning
By Ewa A. Wojciechowska on Jul 29, 2021
Posted In Patents
Addressing the sufficiency of the Patent Trial & Appeal Board’s (PTAB) justification of its inter partes review (IPR) determination, the US Court of Appeals for the Federal Circuit reversed the PTAB’s obviousness determinations, concluding that the PTAB’s findings regarding motivation to combine were not supported by substantial evidence. Chemours Company FC, LLC v. Daikin Industries,...
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Don’t Let Prophetic Examples Work Against You
By Ewa A. Wojciechowska on Jul 8, 2021
Posted In Patents
On July 1, 2021, the US Patent & Trademark Office (PTO) issued a notice reminding patent applicants that when their applications contain both prophetic and working examples, they must make a clear distinction between the two. Prophetic examples illustrate reasonably expected results or anticipated results. They stem from experiments that have not been actually performed...
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10th Circuit Falls into Line on Exceptionality Doctrine in Lanham Act Cases
By Ewa A. Wojciechowska on Jun 17, 2021
Posted In Trademarks
Addressing whether the term “exceptional case” in the Patent Act differs in meaning from the same term used in the Lanham Act, the US Court of Appeals for the 10th Circuit upheld an award of attorneys’ fees granted under a motion filed under 15 U.S.C. 1117(a) and clarified that the exceptional case standard in the...
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Not With a Bang but a Whimper
By Ewa A. Wojciechowska on May 27, 2021
Posted In Copyrights
In a non-precedential Order issued by the US Court of Appeals for the Federal Circuit—on remand from the US Supreme Court’s April 2021 decision upholding Google’s fair use defense to Oracle’s copyright infringement claim—the Court recalled its mandate in the case “solely with respect to fair use,” leaving intact the Federal Circuit’s May 2014 judgment...
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The Steep Price of Not Being Exceptional
By Ewa A. Wojciechowska on Mar 11, 2021
Posted In Trademarks
Addressing the appropriate standard for determining what makes a trademark case sufficiently exceptional to warrant an award of attorney fees, the US Court of Appeals for the Seventh Circuit upheld the denial of a renewed motion for attorneys’ fees under the Octane Fitness standard. LHO Chicago River, LLC v. Rosemoor Suites, LLC, Case No. 20-2506...
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No More Bites at the Apple: Intervening Junior User Can Force You to Get Your Head Out of the Cloud(s)
By Ewa A. Wojciechowska on Feb 4, 2021
Posted In Trademarks
Addressing how a mark’s intervening junior user’s success can affect a senior user, the US Court of Appeals for the Fourth Circuit upheld a grant of summary judgment in favor of the junior user and the issuance of a permanent injunction for any commercial use of the disputed terms by the senior user. RXD Media,...
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