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Claims barred by laches: Prosecution delay doesn’t pay, nor does skipping evidence of concrete injury

by | Sep 11, 2025 |

The US Court of Appeals for the Federal Circuit affirmed a district court’s judgment for the US Patent & Trademark Office (PTO) on application of prosecution laches in an action under 35 USC § 145. The Federal Circuit also agreed that the district court lacked Article III jurisdiction over certain claims because the plaintiff failed to provide evidence of concrete injury when challenged after initial pleadings. Hyatt v. Stewart, Case Nos. 2018-2390; -2391; -2392; 2019-1049; -1038; -1039; -1070; 2024-1992; -1993; -1994; -1995 (Fed. Cir. Aug. 29, 2025) (Reyna, Wallach, Hughes, JJ.) (precedential).

Gilbert Hyatt filed four GATT bubble patent applications, all of which had claims rejected by the examiner. Hyatt appealed those rejections to the Patent Trial & Appeal Board, which affirmed various rejections of others. Following the Board decisions, Hyatt filed four separate actions in district court under 35 U.S.C. § 145, challenging the PTO rejections. In response, the PTO asserted prosecution laches as an affirmative defense and, in the alternative, invalidity, based on anticipation and lack of written description.

The district court initially ruled in Hyatt’s favor, finding that the PTO’s affirmative defenses failed with respect to the claims for which the Board affirmed the examiner’s rejection. The district court concluded that it lacked Article III jurisdiction over the remaining claims (those for which the Board reversed the examiner) because there was no final agency action as to those claims.

The PTO appealed, arguing that prosecution laches barred all of the claims or, in the alternative, that the claims were invalid. Hyatt cross-appealed, contending that prosecution laches did not apply in § 145 actions or that the district court abused its discretion in applying laches in these specific § 145 actions.

In an earlier appeal, Hyatt I, the Federal Circuit vacated the district court’s rulings on prosecution laches, holding that the district court applied the wrong standard for prosecution laches and had the burden of proving that Hyatt engaged in unreasonable and unexplained delay in prosecuting his applications and that the delay was prejudicial. The panel remanded the case held the issue of Article III jurisdiction in abeyance. On remand, the district court reversed course and found in favor of the PTO on prosecution laches, concluding that Hyatt had unreasonably delayed prosecution in a manner that prejudiced the agency.

Hyatt appealed. The Federal Circuit consolidated the appeals with the earlier stayed jurisdictional issues. The Federal Circuit affirmed the district court’s application of prosecution laches, finding no clear error in its determination that Hyatt’s conduct met the standard for delay and prejudice. The Federal Circuit also agreed that the district court lacked Article III jurisdiction over claims that had not been finally rejected by the PTO, reinforcing that § 145 actions may only proceed where there is a final agency determination resulting in a justiciable controversy.

On the issue of prosecution laches, the Federal Circuit explained that it had already considered and rejected Hyatt’s argument that prosecution laches is unavailable in a § 145 action in Hyatt I, and [...]

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Use of general knowledge in IPR petitions will no longer work

by | Aug 14, 2025 |

On July 31, 2025, the US Patent & Trademark Office (PTO) issued a memo clarifying the requirements under 37 C.F.R. § 42.104(b)(4) for inter partes review (IPR) petitions. The memo emphasizes that petitioners must clearly identify where each element of the challenged claims is found in the prior art patents or printed publications relied upon.

Historically, the Patent Trial & Appeal Board permitted petitioners to rely on applicant admitted prior art (AAPA), expert testimony, common sense, and other forms of general knowledge to fill in missing claim limitations. However, the new guidance states that such general knowledge, including AAPA, can no longer be used to supply missing claim elements. If an IPR petition relies on general knowledge to bridge gaps in the prior art, the Board will now deny institution.

The memo clarifies that § 104(b)(4) does not limit the use of general knowledge to support a motivation to combine or to demonstrate the knowledge of a person of ordinary skill in the art. However, § 104(b)(4) may be narrower than 35 U.S.C. § 311(b). Just weeks before the memo was issued, the US Court of Appeals for the Federal Circuit’s decision in Shockwave Medical. v. Cardiovascular Systems held that AAPA can be used to supply missing claim limitations without violating § 311(b), highlighting a potential tension between the rule and judicial interpretation.

The PTO’s new requirements will apply to all IPR petitions filed on or after September 1, 2025.

Practice note: To meet the threshold for institution, IPR petitioners should ensure that each claim element is explicitly mapped to prior art patents or printed publications. Reliance on general knowledge to fill in missing elements will no longer be sufficient.



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Kissing cousins? SUNKIST and KIST deemed confusingly similar

by | Jul 31, 2025 |

The US Court of Appeals for the Federal Circuit reversed a Trademark Trial & Appeal Board decision, concluding that there was a likelihood of confusion between the marks KIST and SUNKIST when used in connection with soft drinks. Sunkist Growers, Inc. v. Intrastate Distributors, Inc., Case No. 24-1212 (Fed. Cir. July 23, 2025) (Prost, Taranto, Stark, JJ.)

For at least 90 years, Sunkist has offered soft drinks under the SUNKIST trademark both directly to consumers and through its licenses. Intrastate Distributors Inc. (IDI) purchased the KIST brand and proceeded to use the KIST mark for soft drink and sparkling water products. The KIST mark was active for about a decade before being cancelled in 2013. In 2019, IDI filed intent-to-use trademark applications for the KIST mark both in standard characters and in a stylized character form for “[s]oft drinks, namely, sodas and sparkling water; concentrates and syrups for making soft drinks.” Sunkist opposed the registration, arguing the KIST mark was likely to cause confusion with the SUNKIST mark.

Focusing its analysis on the SUNKIST standard character mark, the Board determined that all DuPont factors other than similarity of the marks favored likelihood of confusion. The Board found that the marks were not sufficiently similar because they conveyed different commercial impressions. According to the Board, while SUNKIST referenced the sun, the KIST mark referenced a kiss, relying on the image of lips that appear next to the KIST mark. The Board therefore found no likelihood of confusion between IDI’s marks and the registered SUNKIST marks. Sunkist appealed.

The Federal Circuit began by emphasizing that the KIST mark was not a design mark and the image of lips did not always appear beside the mark. The Court relied on the following image in its opinion, noting that “[n]one of the bottles include a lips image or reference a kiss” and instead “emphasize flavors.”

kist bottles

The Federal Circuit noted that the record contains no evidence concerning the degree of consumer exposure to the mark with the image of lips versus without lips. The Court found that the Board relied too heavily on the KIST mark’s appearance alongside an image of lips, and ultimately determined that substantial evidence did not support the finding that the mark referenced a kiss. The Court noted that while some of the SUNKIST marks contained a sun, many were standard character marks that did not include a sun. The Court thus concluded that substantial evidence did not support a finding that the similarity of the marks favored no likelihood of confusion.

Since the Board had previously found that the remaining DuPont factors favored likelihood of confusion and the Federal Circuit determined that the similarity of the marks also favored likelihood of confusion, the only remaining consideration was actual confusion. Although Sunkist had not proven instances of actual confusion, the Court noted that its precedents had never required actual confusion, primarily because [...]

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Game over: Prior interference doesn’t preclude IPR proceeding

by | Jul 31, 2025 |

The US Court of Appeals for the Federal Circuit affirmed a Patent Trial & Appeal Board unpatentability determination during an inter partes review (IPR) proceeding, concluding that the Board’s decision to not apply interference estoppel fell within the general rule of unreviewability. IGT v. Zynga Inc., Case No. 23-2262 (Fed. Cir. July 22, 2025) (Prost, Reyna, Taranto, JJ.)

IGT owns an expired patent that addresses the need for gaming machines, such as slot machines and video poker machines, to securely communicate over a public network. The patent was issued in January 2007 from an application filed in April 2002 and published in August 2002. Zynga filed a patent application on August 21, 2003, that included claims copied from IGT’s published application.

In March 2010, the US Patent & Trademark Office (PTO) Board of Patent Appeals & Interferences (predecessor of the Patent Trial & Appeal Board, which Congress created in 2011) declared an interference proceeding between Zynga’s application and IGT’s patent. During the interference proceeding, Zynga argued IGT’s patent was obvious over three pieces of prior art. IGT argued that Zynga lacked standing because the claims in Zynga’s application were unpatentable for a lack of written description. The Board granted IGT’s motion for judgment on the “threshold issue” that Zynga’s application lacked adequate written description support, terminated the interference with a judgment against Zynga, and dismissed the motion that the claims were unpatentable as moot.

In April 2021, IGT sued Zynga alleging infringement of six patents, including the patent that was subject to the interference proceeding. Zynga filed an IPR petition for that patent, asserting obviousness based on new prior art. In its preliminary response, IGT argued that the Board should deny institution based on interference estoppel under 37 C.F.R. § 41.127(a)(1) because Zynga could have raised the newly asserted art in the interference proceeding. The Board rejected IGT’s interference estoppel arguments because:

  • The interference was terminated based on the “threshold issue” of lack of written description and therefore the Board did not analyze or decide any issues of unpatentability.
  • It would be unfair to estop Zynga, and to the extent that estoppel applied, the Board waived its application under 37 C.F.R. § 42.5(b).

IGT requested rehearing and precedential opinion panel review, arguing that interference estoppel barred institution. The PTO Director affirmed the Board’s decision, stating that interference estoppel under § 41.127 did not apply because IPR proceedings are governed by 37 C.F.R. pt. 42, which does not incorporate Part 41 or its estoppel provisions. The PTO Director also noted that the Board’s termination was based on a threshold issue. The Board proceeded with the review and ultimately concluded that all the challenged claims were unpatentable as obvious. IGT appealed.

IGT argued that the Board and PTO Director erred in ruling that interference estoppel did not bar the petition and challenged the Board’s holding that the claims would have been obvious over the newly asserted prior art.

The Federal Circuit concluded that the interference estoppel determination fell within the [...]

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Don’t get too comfy: Prosecution disclaimer also applies to design patents

by | Jul 24, 2025 |

Concluding that the principles of prosecution history disclaimer apply to design patents, the US Court of Appeals for the Federal Circuit reversed a district court’s denial of judgment as a matter of law and entry of a jury verdict that found liability for design patent infringement. Top Brand, LLC v. Cozy Comfort Company, LLC, Case No. 24-2191 (Fed. Cir. July 17, 2025) (Dyk, Reyna, Stark, JJ.)

Top Brand and Cozy Comfort compete in the market for oversized hooded sweatshirts. Cozy Comfort owns a design patent directed to “the ornamental design for an enlarged over-garment with an elevated marsupial pocket.” It accused Top Brand of infringing the patent through its sale of certain hooded sweatshirts and wearable blankets. In response, Top Brand filed a declaratory judgment action seeking findings of noninfringement and invalidity. Cozy Comfort counterclaimed for design patent and trademark infringement.

During prosecution, Cozy Comfort overcame an anticipation rejection by distinguishing the prior art under the ordinary observer test, pointing to specific features such as the shape and placement of the marsupial pocket and the bottom hem line. Top Brand argued that these statements constituted a clear disclaimer of claim scope, and that the accused products fell within the surrendered subject matter.

The district court disagreed, instructing the jury to compare the accused products to the design as claimed (without considering any prosecution disclaimer). The jury found infringement, and the court entered judgment accordingly, denying Top Brand’s motion for judgment as a matter of law. Top Brand appealed.

Top Brand argued that the district court erred by failing to apply prosecution history disclaimer, asserting that the accused design was within the scope of the subject matter Cozy Comfort had disclaimed. Cozy Comfort responded that the disclaimer doctrine does not apply to design patents and, even if it did, Cozy Comfort’s prosecution statements were not sufficiently clear to constitute a disclaimer.

The Federal Circuit disagreed, concluding that prosecution history disclaimer applies to design patents. The Court reasoned that allowing patentees to recapture disclaimed subject matter in litigation would undermine the integrity of the patent system. The Court emphasized that Cozy Comfort’s statements during prosecution clearly surrendered the identified features as supporting a finding of overall similarity. Because the accused design incorporated those surrendered features, the Court concluded that no reasonable jury could find infringement.

Accordingly, the Federal Circuit reversed the district court’s denial of judgment as a matter of law and vacated the jury’s verdict.



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Clean bill of health: Only domestic activities count when analyzing likelihood of confusion

by | Jul 24, 2025 |

Affirming a summary judgment decision finding no trademark infringement under the Lanham Act, the US Court of Appeals for the Ninth Circuit determined that the district court properly focused on domestic activity with regard to the allegedly infringing trademark. Doctor’s Best, Inc. v. Nature’s Way Products, LLC, Case No. 24-2719 (9th Cir. July 15, 2025) (Paez, Ikuta, Nelson, JJ.) (Ikuta, J., concurring).

Doctor’s Best (DB) manufactures nutritional supplements under the mark NATURE’S DAY at its California facility. Although the products bear English labels compliant with US regulations, they are marketed and sold exclusively in China, South Korea, and Taiwan.

Nature’s Way Products (NWP), owner of the long-standing US trademark NATURE’S WAY, opposed DB’s attempt to register NATURE’S DAY in the United States, citing potential consumer confusion. After NWP sent a cease-and-desist letter, DB preemptively sued for a declaratory judgment of noninfringement. NWP counterclaimed for trademark infringement under Sections 32 and 43(a) of the Lanham Act.

In June 2023, the Supreme Court held in Abitron Austria GmbH v. Hetronic Int’l, Inc. that the Lanham Act’s infringement provisions apply only to domestic “use in commerce.” DB moved for summary judgment, arguing that its only domestic activity – transporting products within the US – did not create a likelihood of confusion among US consumers. The district court agreed, finding that DB’s domestic transport of Nature’s Day products was insufficient to support a claim of infringement. The court concluded that no reasonable jury could find that this conduct would confuse US consumers and granted summary judgment in favor of DB. NWP appealed.

NWP argued that any domestic use in commerce, however minimal, triggered the full likelihood-of-confusion analysis, even if confusion occurred abroad. The Ninth Circuit rejected this interpretation, holding that Abitron requires courts to first identify domestic use before evaluating confusion. The Court found that DB’s manufacturing and transport activities were the only relevant domestic conduct.

Turning to likelihood of confusion, the Ninth Circuit applied the eight-factor test set forth in its 1979 decision in AMF Inc. v. Sleekcraft Boats:

  • Strength of the mark
  • Proximity or relatedness of the goods
  • Similarity of the marks
  • Evidence of actual confusion
  • Marketing channels used
  • Type of goods and the degree of care likely to be exercised by the purchaser
  • Defendant’s intent in selecting the mark
  • The likelihood of expansion of the product lines

Reviewing the Sleekcraft factors, the Ninth Circuit concluded that no genuine dispute existed as to the likelihood of confusion. DB’s products were sold exclusively overseas while NWP’s products were sold only in the US. The Court emphasized that confusion must occur among domestic consumers to be actionable under the Lanham Act, and that did not occur here.

In a concurring opinion, Judge Ikuta agreed with the outcome but clarified that DB’s transport of products constituted a domestic use in commerce. However, she found no genuine issue of material fact regarding whether that use caused domestic confusion, reiterating that Abitron excludes extraterritorial confusion from the analysis.



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Victory lap: Extraterritorial injunction permitted for breach of settlement agreement

by | Jul 24, 2025 |

The US Court of Appeals for the Fourth Circuit upheld a permanent injunction, concluding that the district court properly determined that a party’s violation of a settlement agreement would lead to irreparable harm. Wudi Industrial (Shanghai) Co., Ltd. v. Wong, Case No. 24-1186 (4th Cir. July 11, 2025) (King, Gregory, Rushing, JJ.)

The dispute originated in 2017 when Wudi registered the trademark GTRACING with the US Patent & Trademark Office. Wai L. Wong, asserting prior use of the similar mark GT OMEGA RACING, initiated cancellation proceedings before the Trademark Trial & Appeal Board. In 2020, the Board ruled in Wong’s favor. Wudi sought review in the Eastern District of Virginia under 15 U.S.C. § 1071(b), and Wong counterclaimed for trademark infringement.

In May 2021, the parties entered into a confidential global concurrent-use settlement agreement resolving their litigation. Under the agreement, Wudi was permitted to use GTRACING globally, except in designated regions including multiple European countries. Critically, paragraph 6(b) of the agreement prohibited Wudi from using the phrases “GTRACING” or “GT RACING” in online advertising or social media within the European carve-out. The district court subsequently granted a stay of the dispute pending compliance by the parties.

Following the compliance period, Wong alleged that Wudi violated the agreement by using prohibited terms in online marketing within the restricted regions. The district court granted Wong’s motion to enforce the agreement, ordering Wudi to remove specific content and cease future violations. The district court warned that continued noncompliance could result in contempt proceedings.

Wudi appealed, and the Fourth Circuit initially remanded the case, instructing the district court to apply the four-factor eBay test for injunctive relief. The district court found that Wudi had breached the agreement and that Wong had suffered irreparable harm to the goodwill of its marks. The court concluded that monetary damages were inadequate, the balance of hardships favored Wong, and enforcing the agreement served the public interest. The district court issued a permanent injunction. Wudi appealed again.

Wudi challenged the injunction on multiple grounds, including claims of extraterritorial overreach, improper application of the eBay factors, erroneous breach findings, exclusion of parol evidence, failure to apply the unclean hands doctrine, and improper award of attorneys’ fees.

The Fourth Circuit rejected Wudi’s arguments and affirmed the district court’s ruling. The Court held that the injunction merely enforced contractual obligations voluntarily undertaken by Wudi and that the district court properly applied the eBay test. The Court also found no abuse of discretion in the district court’s exclusion of parol evidence and its rejection of the unclean hands defense, finding that the district court properly concluded that reputational harm can demonstrate that irreparable injury will flow from the breach of a trademark-related settlement agreement.



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State court action doesn’t create reasonable apprehension of related federal claims

by | Jul 17, 2025 |

Addressing whether a federal district court had jurisdiction over an action for declaratory relief that certain trade secrets and trademarks were invalid and not infringed, the US Court of Appeals for the Eighth Circuit concluded that state law claims for breach of contract, trade secret misappropriation, and trademark infringement did not create a reasonable apprehension of federal litigation sufficient to give rise to federal jurisdiction. Thunderhead of Ankeny, Inc. v. Chicken Bones of Kearney, Inc., Case No. 24-2741 (8th Cir. July 8, 2025) (Colloton, Arnold, Gruender, JJ.)

Nearly 20 years ago, David Anders sold his equity in Chicken Bones of Kearney, Inc., which ran a bar and grill called the Chicken Coop. Anders subsequently opened a new Chicken Coop restaurant. Chicken Bones sued Anders for misappropriating Chicken Bones’ trade secrets, trademarks, and trade dress. The parties settled, and Anders received a limited license to the Chicken Coop intellectual property. Anders then opened several other Chicken Coop locations under that license.

Believing that Anders had not complied with the license in opening the new restaurants, Chicken Bones sued Anders in state court for breach of the settlement agreement, misappropriation of trade secret recipes, and infringement of the Chicken Coop trademarks and trade dress. In response, Anders sued Chicken Bones in federal court, seeking declarations of noninfringement and invalidity. The district court dismissed the suit for lack of jurisdiction. Anders appealed.

The parties and the Eighth Circuit assumed that the district court would have jurisdiction only if the suit presented a federal question. The Eighth Circuit explained that to assess federal question jurisdiction in the case of a declaratory action, the Court must imagine a traditional action that presents the same controversy and determine whether a federal claim would appear on the face of the resulting complaint. “If, but for the availability of the declaratory judgment procedure, the federal claim would arise only as a defense to a state created action, jurisdiction is lacking.”

Applying this principle, the Eighth Circuit concluded that the district court did not have jurisdiction over Anders’ declaratory action because he primarily sought vindication of his defenses to Chicken Bones’ pending state law claims. While the Court recognized that Anders also sought declaratory relief in anticipation of potential federal trade secret, trademark, and trade dress claims, the Court reasoned that any federal law controversy between the parties was too speculative to support jurisdiction. While a threat of litigation can give rise to a justiciable controversy, there was no evidence that Chicken Bones would assert overlapping and duplicative federal law claims against Anders. The Eighth Circuit further found that Chicken Bones’ petition to cancel Anders’ federal trademark registration of a Chicken Coop logo did not change its analysis, because the petition merely confirmed the existence of a trademark infringement dispute between the parties, which Chicken Coop elected to adjudicate in state court.

The Eighth Circuit distinguished cases involving state law trade secret claims concerning a patented invention. Because there is no state patent system, such trade secret claims can [...]

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Seeing double? Director instructs Board to resolve claim construction pre-institution

by | Jul 2, 2025 |

The acting director of the US Patent & Trademark Office (PTO) vacated and remanded a Patent Trial & Appeal Board decision to institute two inter partes review (IPR) petitions that challenged the same claims. The acting director determined that the two petitions primarily differed with respect to claim construction. In a decision designated as “informative,” he authorized the Board to resolve claim construction pre-institution in view of the Consolidated Trial Practice Guide’s (CTPG) direction that “one petition should be sufficient to challenge the claims of a patent in most situations.” CrowdStrike, Inc. v. GoSecure, Inc., IPR2025-00068; -00070 (PTAB June 25, 2025) (Stewart, Act. Dir.) The PTO designates a decision as informative when it provides “norms on recurring issues, guidance on issues of first impression to the Board, guidance on Board rules and practices, and guidance on issues that may develop through analysis of recurring issues in many cases.”

CrowdStrike submitted two IPR petitions that challenged the same claims of GoSecure’s patent. The Board instituted both IPRs. GoSecure requested director review, asserting that instituting both petitions was an abuse of the Board’s discretion. On review, the acting director determined that the Board abused its discretion in view of the CTPG’s direction.

The acting director concluded that the two petitions did not reflect an exception to the CTPG’s direction. He determined that CrowdStrike’s petitions were primarily distinguished by the constructions applied to a claim term. The acting director explained that the Board should have construed the term at issue prior to granting institution, concluding that the Board’s institution decision amounted to improper expansion of CrowdStrike’s permitted word count and placed a substantial and unnecessary burden on the Board and GoSecure that could raise fairness, timing, and efficiency concerns. The acting director vacated and remanded the Board’s institution decision.

The acting director also instructed the Board that the patent owner should be allowed to “submit whatever arguments are necessary for the panel to make a claim construction determination” even if the patent owner has not addressed the issue.



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No Fairytale Ending for Consumer Opposition: RAPUNZEL Reinforces Lexmark Standing Limits

by | May 29, 2025 |

The US Court of Appeals for the Federal Circuit affirmed the Trademark Trial & Appeal Board’s dismissal of a trademark opposition brought by a consumer, holding that mere consumer interest is insufficient to establish standing under Section 13 of the Lanham Act (15 U.S.C. § 1063). The ruling reinforced the application of the Supreme Court’s Lexmark (2014) framework to administrative trademark proceedings and clarified that only parties with commercial interest fall within the “zone of interests” protected by the statute when challenging a mark. Curtin v. United Trademark Holdings, Inc., Case No. 23-2140 (Fed. Cir. May 22, 2025) (Taranto, Hughes, JJ.; Barnett, Distr. J., sitting by designation.)

United Trademark Holdings (UTH) applied to register the mark RAPUNZEL for dolls and toy figures. Rebecca Curtin, a law professor, doll collector, and mother, opposed the registration, arguing that “Rapunzel” is a generic or descriptive term and its registration would harm consumers by reducing competition and increasing prices for fairytale-themed dolls.

The Board dismissed Curtin’s opposition, concluding she lacked standing to oppose under § 1063. The Board applied the Lexmark framework, which requires a showing that the opposer’s interests fall within the zone of interests protected by the statute and that the alleged injury is proximately caused by the registration. The Board found that Curtin, as a consumer, failed both prongs. Curtin appealed.

Curtin argued she had statutory entitlement under the 1999 Federal Circuit decision in Ritchie v. Simpson, “a case that addressed a section of the Trademark Act barring registration of ‘immoral’ or ‘scandalous’ matter.”

The Federal Circuit affirmed the Board, holding that the Lexmark framework applied rather than Ritchie. The Court explained that while the Lanham Act may indirectly benefit consumers, the statutory cause of action is reserved for those with commercial interest. Since Curtin’s opposition was based on claims that the mark was generic, descriptive, or failed to function as a mark, her interest as a consumer did not fall within the zone of interests protected by the statute.

The Federal Circuit also found that Curtin’s alleged injuries, namely reduced marketplace competition, increased prices, and diminished access to diverse interpretations of the Rapunzel character, were too speculative and derivative of harm that might be suffered by commercial competitors. The Court reiterated that injuries must be direct and not merely downstream effects of harm to others. Curtin’s submission of a petition with more than 400 signatures from like-minded consumers did not alter the Court’s conclusion that her alleged harm was too remote to satisfy the proximate cause requirement.

Practice Note: The Federal Circuit’s decision reinforces that only parties with direct commercial stakes, such as competitors or potential market entrants, have standing to oppose trademark registrations on grounds such as genericness, descriptiveness, or fraudulence.



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