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Heightened Written Description Standard for Negative Limitations?

by Mandy H. Kim | Jun 30, 2022 | Patents

Addressing the issue of negative claim limitations, the US Court of Appeals for the Federal Circuit granted a petition for panel rehearing, vacated its prior decision (authored by now-retired Judge O’Malley) and reversed the district court’s finding that the patent was not invalid for inadequate written description. Novartis Pharms. v. Accord Healthcare Inc., Case No. 21-1070 (Fed. Cir. June 21, 2022) (Moore, C.J.; Hughes, J.) (Linn, J., dissenting).

This is the second time this Hatch-Waxman case has been before the Federal Circuit. Novartis sued HEC, alleging that HEC’s abbreviated new drug application infringed a patent directed to methods of treating remitting multiple sclerosis (RRMS) with fingolimod or a fingolimod salt at a daily dose of 0.5 mg without an immediately preceding loading dose. The district court found sufficient written description for the claimed 0.5 mg daily dose and no-loading dose negative limitation. In January 2022, the Federal Circuit affirmed the district court’s decision finding adequate written description.

HEC petitioned for panel rehearing. The Federal Circuit granted the petition, vacated its January 2022 decision and reversed the district court’s judgment finding adequate written description for the no-loading dose negative limitation. The majority explained that “silence is generally not disclosure” because “[i]f it were, then every later-added negative limitation would be supported so long as the patent makes no mention of it.” The majority also explained that implicit disclosure cannot satisfy the written description requirement if it would render the limitation obvious to a skilled artisan. The majority emphasized that while a negative limitation need not be recited in the specification in haec verba, there generally must be something in the specification that conveys to a skilled artisan that the inventor intended the exclusion—for example, a description of a reason to exclude the relevant element. Here, the majority found that the specification made no mention of the presence or absence of a loading dose. This silence cannot support a later-added claim limitation that precludes loading doses, particularly where there was no evidence that the patentee precluded the use of a loading dose and skilled artisans agreed that loading doses are sometimes given to RRMS patients.

Judge Linn (a member of the majority in the January 2022 opinion) dissented, arguing that the majority applied a heightened written description standard requiring not only a “reason to exclude” but a showing that the negative limitation was also “necessarily excluded.” He stated that the question was not whether the patentee precluded the use of a loading dose, but whether the claim limitation that precluded a loading dose was supported by the specification’s written description that disclosed only a daily dose. Judge Linn argued that disclosure along with the testimony of Novartis’s experts implied an absence of a loading dose to a skilled artisan, and that is all that is required for adequate written description. Citing precedent and the US Patent & Trademark Office’s guidance in the Manual of Patent Examining Procedure, he argued that newly added claims or claim limitations may be supported [...]

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Clarification or Raising the Bar? PTO Director Issues New Guidance for Discretionary PTAB Denials

by Thomas DaMario | Jun 30, 2022 | America Invents Act, Patents

On June 21, 2022, US Patent & Trademark Office (PTO) Director Katherine K. Vidal issued a memorandum addressing interim procedures for discretionary denials in America Invents Act (AIA)-post grant proceedings at the Patent Trial & Appeal Board (Board). In 2020, in order to minimize the potential conflict between the Board and parallel district court proceedings, the PTO designated the Board’s opinion in Apple v. Fintiv as precedential. Since Fintiv, the Board has issued several discretionary denials of institution based on parallel proceedings in district (and in some cases other administrative) courts. Director Vidal’s memo seeks to provide additional guidance on the PTO’s interpretation of Fintiv and its progeny and addresses multiple factors that were previously left to individual administrative law judge (ALJ) interpretation.

The memo includes rendering an initial evaluation of the merits of the petition. In particular, the Board will not deny institution of an inter partes review (IPR) or post-grant review (PGR) under Fintiv when a petition presents compelling evidence of unpatentability. This standard is higher than the institution standard, which requires only that “there is a reasonable likelihood that petitioner would prevail with respect to at least 1 of the claims challenged in the petition.” While the memo does not elaborate on the evidence required to meet this compelling standard, numerous decisions were cited as illustrative. (See: e.g., Illumina Inc. v. Trs. of Columbia Univ., IPR2020-00988, Paper 20 (PTAB Dec. 8, 2020); Synthego Corp. v. Agilent Techs., Inc., IPR2022-00402, Paper 11 (May 31, 2022); Samsung Elecs. Co. v. Scramoge Tech., Ltd., IPR2022-00241, Paper 10 (June 13, 2022).)

Additionally, Director Vidal confirmed that Fintiv does not apply to parallel proceedings before the International Trade Commission nor where there has been a stipulation not to pursue the same grounds in a district court proceeding. The stipulation applies to grounds that are actually raised in the petition and any grounds that could have reasonably been raised in the petition, suggesting that there may be some dispute later in the district court proceeding about what grounds “could have reasonably been raised in the petition.”

Finally, the memo clarified the second factor of the Fintiv analysis: the speed with which the district court case may go to trial and be resolved. The Board will consider not only the scheduled trial date, but also the median time-to-trial for the particular district court, number of cases before the specific district court judge and the speed and availability of other dispositions.

Practice Note: While the standard for institution has not changed, the new compelling standard effectively ups the bar for any IPR, PGR or covered business method (CBM) proceedings where there is a parallel district court case. Prior to filing a new petition, patent challengers should objectively weigh the merits of their challenge or consider stipulating not to pursue the same invalidity grounds in the parallel district court proceeding.

Drink Up, but Not with Lehman Brand

by Paul Devinsky | Jun 9, 2022 | Trademarks

In the context of an opposition proceeding, the US Court of Appeals for the Federal Circuit upheld a Trademark Trial & Appeal Board (Board) refusal to register a trademark based on likelihood of confusion with a famous but expired mark, notwithstanding the applicant’s assertion of abandonment of the mark by the original registrant. Tiger Lily Ventures Ltd. v. Barclays Capital Inc., Case Nos. 21-1107;- 1228 (Fed. Cir. June 1, 2022) (Lourie, Bryson, Prost, JJ.)

Tiger Lily sought to register the word mark LEHMAN BROTHERS for beer and spirits and for bar services and restaurant services. Barclays, whose Lehman Brothers marks had expired, opposed the applications based on likelihood of confusion. Tiger Lily argued that Barclays had abandoned the mark and filed an opposition to Barclays’ application to register the work mark LEHMAN BROTHERS. The Board sustained Barclays’ oppositions on the grounds of likelihood of confusion and dismissed Tiger Lily’s opposition. Tiger Lily appealed.

Tiger Lily challenged the Board’s decision, arguing that the Board erred in its determination that Barclays did not abandon its rights in the LEHMAN BROTHERS mark and, relatedly, that Barclays established priority with respect to the LEHMAN BROTHERS mark in its own application. Tiger Lily also argued that the Board erred in finding that its proposed mark for beer and spirits and its proposed mark for bar services and restaurant services would cause a likelihood of confusion with Barclays’ LEHMAN BROTHERS mark.

Addressing the issue of abandonment, the Federal Circuit explained that “there are two elements to a claim for abandonment: (1) nonuse; and (2) intent not to resume use,” and “even limited use can be sufficient to avoid a finding that use of a mark has been ‘discontinued.’” The Court noted that Tiger Lily acknowledged that Barclays had used the mark “continuously in the course of winding up the affairs of at least one Lehman Brothers affiliated company” and thus failed to prove nonuse. Whether Lehman Brothers would exist after bankruptcy proceedings ended was immaterial.

On the issue of likelihood of confusion and the DuPont factors, the Federal Circuit found that “because the LEHMAN BROTHERS mark has achieved a high degree of fame, it is afforded a broad scope of protection.” Tiger Lily attempted to draw a distinction between “consumer recognition” as compared with “goodwill” as a factor and argued that it was actually trying to trade on the “bad will” associated with the mark. The Court found “no legal support for [this] subtle distinction.” The Court concluded that “Tiger Lily’s attempts to capitalize on the fame of the LEHMAN BROTHERS mark weighs in favor of finding a likelihood of confusion,” and that the Board’s findings on the remaining factors were supported by substantial evidence.

PTO Re-Opens to Public

by Amol Parikh | Jun 2, 2022 | Patents

The US Patent & Trademark Office (PTO) re-opened to the public on May 25, 2022. Both the headquarters in Alexandria, Virginia, and the regional offices in Dallas, Texas; Denver, Colorado; Detroit, Michigan and San Jose, California, are now open. The offices had been closed to the public since March 16, 2020, because of the COVID-19 pandemic.

Visitors will be required to complete a health questionnaire and may be denied entry depending on the results of the questionnaire. Local COVID-19 infection rates will determine whether masks are required in each office.

Although the PTO is open to the public, oral hearings before the Patent Trial & Appeal Board and Trademark Trial & Appeal Board will still be conducted by video or telephone. In-person interviews with examiners are now possible, however.

Arthrex, Still Without Director Review, Gets Constitutional Review from Patent Commissioner

by Christopher M. Bruno | Jun 2, 2022 | Patents

A panel of the US Court of Appeals for the Federal Circuit considered whether the Patent Commissioner, on assuming the role of the US Patent & Trademark Office (PTO) Director, can constitutionally evaluate the rehearing of Patent Trial & Appeal Board (Board) inter partes review (IPR) decisions. The panel concluded that neither Appointments Clause jurisprudence nor the Federal Vacancies Reform Act (FVRA) impeded the Commissioner from exercising the PTO Director’s authority. Arthrex, Inc. v. Smith & Nephew, Inc. et al., Case No. 18-2140 (Fed. Cir., May 27, 2022) (Moore, C.J.; Reyna, Chen, JJ.)

Approximately one year ago, Arthrex succeeded in the Supreme Court of the United States on its argument that the Appointments Clause of the Constitution was violated unless a presidentially appointed and Senate-confirmed officer (such as the PTO Director) could review the Board’s final IPR decisions. (United States v. Arthrex, Inc.) The case returned to the PTO on remand. At the time, the position of PTO Director was vacant, and there was no acting director. Pursuant to the FVRA, the Commissioner of Patents (a position filled by the Secretary of Commerce) exercised the PTO Director’s authority to review Board decisions and ultimately rejected Arthrex’s challenge to the Board’s unpatentability determination. Arthrex appealed.

Arthrex contended that the Commissioner could not constitutionally exercise the PTO Director’s IPR review authority without running afoul of the Appointments Clause, that the FVRA barred the Commissioner’s exercise of authority and that the Commissioner violated separation of powers. Arthrex also challenged the ruling on the merits. None of these challenges were successful.

First, the Federal Circuit concluded that Arthrex reinforced long-settled Supreme Court precedent that an inferior officer could exercise a principal officer’s authority constitutionally on a temporary basis without violating the Appointments Clause. Here, the Court concluded that the Commissioner’s exercise of the PTO Director’s IPR review authority until a new director was installed presented no problem.

Second, the FVRA provides a statutory framework for the exercise of a principal officer’s duties under certain circumstances, which, if the law applied, would not have allowed the Commissioner to review IPR decisions. However, the Federal Circuit explained that the FVRA narrowly governs only those duties of an officer that are statutorily non-delegable (i.e., which US Congress has required to be exercised personally by the officer). According to the Court, such provisions did not apply here because nothing demonstrated that the PTO Director’s newly created authority to review IPR decisions was non-delegable.

Third, the Federal Circuit rejected Arthrex’s argument that the Commissioner’s service as the PTO Director violated the line of precedent that limits Congress’ ability to circumscribe the president’s removal authority for superior officers. Arthrex contended that the Commissioner, a non-superior officer, could be removed only for “misconduct or nonsatisfactory performance” and therefore could not fill the role of the PTO Director. The panel disagreed, explaining that the president could name an acting director “with the stroke of a pen,” and so the limits on removing the Commissioner from his role as Commissioner [...]

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Time Bar Dismissal Saves Patent Found Unpatentable

by Bhanu K. Sadasivan, PhD | May 26, 2022 | Patents

The US Court of Appeals for the Federal Circuit dismissed an appeal, finding it lacked appellate jurisdiction to review a Patent Trial & Appeal Board (Board) decision to vacate an institution decision of inter partes review (IPR) based in part on the Board’s time bar evaluation. Atlanta Gas Light Co. v. Bennet Regulator Guards, Inc., Case No. 21-1759, (Fed. Cir., May 13, 2022) (Lourie, Stoll, JJ.) (Newman, J. dissenting)

This is the third time this case has been before the Federal Circuit. On July 18, 2012, Bennett served Atlanta Gas with a complaint alleging infringement of its patent. The district court dismissed the complaint without prejudice. More than two and a half years after service of the complaint, Atlanta Gas filed an IPR petition. Bennett argued that Atlanta Gas’s IPR petition was time barred, but the Board disagreed, instituted review of all claims and found every claim unpatentable in a final written decision. After receiving the final decision, Bennett sought sanctions for Atlanta Gas’s failure to notify the Board of Atlanta Gas’s changed parentage. On appeal, the Federal Circuit vacated the Board’s final written decision, finding the IPR time barred under 35 U.S.C. §315(b). (Bennett Regulator Guards, Inc. v. Atlanta Gas Light Co.). The Supreme Court thereafter issued its decision in Thryv, Inc. v. Click-To-Call Tech, where it held that time bar determinations are not reviewable. On remand from the Supreme Court, the Federal Circuit affirmed the Board’s unpatentability decision, did not address the time bar decision and remanded the case back to the Board to finalize its order on sanctions (Bennett II). On remand, the Board vacated its institution decision in light of the US Patent & Trademark Office’s (PTO) changed policy on time bar evaluations and declined to award the requested sanctions. Atlanta Gas appealed.

The Federal Circuit dismissed the appeal for lack of jurisdiction. Atlanta Gas argued that the Board’s decision was a final sanctions decision that is reviewable under 28 U.S.C. § 1295(a)(4)(A) and that any portion of the Board’s determination beyond the sanctions award violated the Court’s mandate in Bennett II. Bennett countered that the Court lacked jurisdiction under 35 U.S.C. § 314(d) and the Supreme Court’s Thryv decision and that the Board’s decision was not inconsistent with the Bennett II mandate. The Court agreed, concluding that it lacked jurisdiction because the Board’s decision was based in part on its time bar evaluation and, therefore, was not purely a sanctions decision. Additionally, the Court found that the time bar determination was within the scope of the mandate, albeit mooting its determination of unpatentability.

Judge Newman dissented. In her view, the sanctions order was the only issue on appeal. She also pointed out the inconsistency with the Bennett II mandate, noting the contradiction in the Federal Circuit currently mooting the unpatentability decision with the Bennett II decision finding the patent unpatentable. She explained that denial of appellate review could be seen as authorizing the Board to vacate its final decisions [...]

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Déjà vu Decision on Likelihood of Confusion

by Amol Parikh | May 19, 2022 | Trademarks

The US Court of Appeals for the Fifth Circuit affirmed a district court’s dismissal of a trademark suit that was essentially identical to a previous lawsuit that was dismissed based on a finding of lack of confusion. Springboards to Education, Inc. v. Pharr San Juan Alamo Independent School District, Case No. 21-40336 (5th Cir. May 10, 2022) (Willett, Engelhardt, Wilson, JJ.)

Springboards sells products to school districts in connection with its “Read a Million Words Campaign.” The campaign builds excitement around reading by incentivizing school children to read books through promises of induction into the Millionaire’s Reading Club and access to rewards, such as t-shirts, backpacks and fake money. Springboards’ goods may typically bear any combination of trademarks that it registered with the US Patent & Trademark Office (PTO), including “Read a Million Words,” “Million Dollar Reader,” “Millionaire Reader” and “Millionaire’s Reading Club.”

Pharr San Juan Alamo (PSJA) is a public school district in Hidalgo County, Texas. Springboards sued PSJA in 2016 in federal court, alleging trademark infringement based on the school district’s use of “millionaire”-themed reading incentive programs allegedly “using products and services bearing marks and branding identical to or confusingly similar to Springboards’ marks.” While the case was pending, the Fifth Circuit issued its decision in Springboards to Education, Inc. v. Houston Independent School District, where it found that another public school district’s summer reading program did not infringe Springboards’ trademarks. Observing the parallels between the Houston case and the PSJA case, the district court granted PSJA’s motion for summary judgment that it did not infringe any of Springboards’ trademarks. Springboards appealed.

Calling it “déjà vu all over again,” the Fifth Circuit affirmed the district court’s finding that PSJA’s use of Springboards’ marks was not likely to cause confusion. The Court explained that distinguishing between Springboards’ catalog of “millionaire”-themed goods and unaffiliated “millionaire”-themed goods that other educational entities have elected to deploy is not difficult, and unique imprints on “millionaire”-themed reading challenges are widespread in the educational field. The Court noted that as in Houston, Springboards did not allege that PSJA itself is in the business of competing with Springboards by selling its own “millionaire”-themed products to the school districts that make up Springboards’ customer base. The Court thus concluded that PSJA’s use of a million-word reaching challenge did not confuse and was not intended to confuse the sophisticated school districts that Springboards targets with its marks.

Springboards tried to distinguish the Houston case by arguing that the Houston school district had one summer reading program whereas PSJA has had several year-long reading programs and that the requirements of PSJA’s reading program are identical—and not merely similar to—Springboards’ model program. Springboards also noted that its founder worked his entire career in Hildago County (where PSJA is located) and visited schools, teachers and administrators in the district—unlike Houston, which was over 300 miles away. The Court found that these facts did not move the needle, in light of its finding that sophisticated school district customers can [...]

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It’s Not in the Bag: TTAB Refuses to Register Generic Handbag Design

by Sarah Bro | Apr 28, 2022 | Trademarks

Ending a hard-fought three-year campaign to secure registration of a popular handbag, the US Patent & Trademark Office (PTO) Trademark Trial & Appeal Board designated as precedential its decision refusing registration of the product configuration mark, deeming it a generic configuration not eligible for trademark registration. The Board also concluded that even if the bag design had not been generic, the applicant failed to make a necessary showing that the design of the bag had acquired distinctiveness. In re Jasmin Larian, LLC, Serial No. 87522459 (TTAB, Jan. 19, 2022; redesignated Mar. 29, 2022) (Cataldo, Lynch, Allard, ATJ).

Fashion brand CULT GAIA’s “ARK” handbag is composed of bamboo strips creating a creating a see-through “sunburst design,” and has been carried by celebrities such as Beyoncé and Jessica Alba. The brand’s founder and CEO Jasmin Larian sought registration on the Principal Register of the following mark for a three-dimensional handbag:

After several years of examination, the examining attorney ultimately issued a final refusal on the ground that the proposed configuration was a generic configuration, or alternatively, was a nondistinctive product design that had not acquired distinctiveness. Larian appealed to the Board.

Acknowledging the commercial success of the CULT GAIA ARK bag, the Board explained that the issue before it was whether the proposed mark was generic (i.e., a common handbag design), or, alternatively, whether the bag constituted a nondistinctive product design that had acquired distinctiveness. The Board tackled both questions, since similar evidence was relevant to both inquiries.

A trademark must be distinctive to be eligible for registration. Such distinctiveness is measured on a spectrum, where one side of the spectrum is made up of generic terms or generic designs (i.e., non-distinctive and non-protectable as trademarks) and the other side is made up of registrable trademarks that are arbitrary or fanciful. Suggestive trademarks fall somewhere in the middle. In the context of product designs, genericness may be found where the design is so common in the industry that the design cannot be said to identify a particular source of the product. Generic product designs fail to function as a trademark. Genericness is assessed by determining the genus of the goods or services at issue, then determining whether the consuming public primarily regards the design sought to be registered as a category or type of trade dress for the genus of goods or services. For the ARK bag, the applicant and the examining attorney agreed that “handbags” was the genus of the goods at issue. The relevant consuming public was found to consist of ordinary consumers who purchase handbags.

The Board reviewed the evidence of record to assess the significance of the bag design to ordinary consumers, i.e., whether they viewed the configuration of the bag as a source-identifying trademark or merely as a common handbag design. The Board detailed eight different categories of evidence, which, according to the Board, showed that “in the decades leading up to and the years immediately preceding [...]

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Missed Connection: Avoid Claim Construction Rendering Independent Claim Narrower Than Dependent Claim

by Tessa Kroll | Apr 14, 2022 | Patents

The US Court of Appeals for the Federal Circuit vacated a district court’s claim constructions concerning generic independent claims that were amended after a species restriction requirement, because the district court disregarded the doctrine of claim differentiation after incorrectly concluding that the examiner had mistakenly rejoined withdrawn claims. Littelfuse, Inc. v. Mersen USA EP Corp., Case No. 21-2013 (Fed. Cir. Apr. 4, 2022) (Prost, Bryson, Stoll, JJ.)

Littelfuse owns a patent directed to a fuse end cap for providing an electrical connection between a fuse and an electrical conductor. The specification teaches three embodiments of the invention:

A single-piece machined end cap comprising a mounting cuff and a terminal
A single-piece stamped end cap comprising a mounting cuff and a terminal
A two-piece assembled end cap comprising a mounting cuff, a terminal and a fastening stem attaching the mounting cuff to the terminal.

The originally filed claims included independent claims covering an end cap with a mounting cuff and a terminal, and dependent claims directed to the three embodiments. The claims directed to the two-piece assembled end cap embodiment contained the limitation that the terminal is press-fit onto the fastening stem.

During prosecution, the examiner issued a restriction requirement, asserting that the independent claims were generic to the three species in the dependent claims. Littelfuse elected to prosecute the assembled end cap species and the examiner withdrew the claims directed to the other embodiments. In response to a novelty rejection, Littelfuse amended the independent claims by adding the fastening stem element without specifying that the terminal is press-fit onto the stem. After allowing the amended independent claims, the examiner concluded that the previously withdrawn claims “require all the limitations of the . . . allowable claims,” and thus rejoined them.

Littelfuse sued Mersen for selling allegedly infringing fuses. The parties asked the district court to determine whether the fastening stem element in the independent claims limited Littelfuse’s patent to multi-piece end caps, despite the rejoined dependent claims being directed to one-piece embodiments. The district court found that the claim language, the specification and the prosecution history required the invention to have a multi-piece construction. First, the district court determined that the plain meaning of “fastening stem” was “a stem that attached or joins the other two components of the apparatus.” The district court then noted that the fastening stem was only mentioned in the specification in relation to the multi-piece embodiment in which the terminal is joined to the mounting cuff by the fastening stem. While Littelfuse argued that the US Patent & Trademark Office’s rejoining of the withdrawn claims meant that the independent claims covered unitary and multi-piece embodiments, the district court reasoned that the claims were rejoined based on a “misunderstanding” because they referred to the original independent claim, which did not include a fastening stem. In light of the district court’s finding that the independent claims covered only a multi-piece apparatus, the parties stipulated to non-infringement. Littelfuse appealed.

Applying the doctrine of claim differentiation, the [...]

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Eighth Circuit Defends Use of Term “Patent Troll,” Vacates Injunction against Infringement Defendant

by Paul Devinsky | Mar 24, 2022 | Patents

The US Court of Appeals for the Eighth Circuit vacated an injunction restraining defendants from engaging in certain allegedly harassing conduct because there was no evidence tying the defendants to the alleged misconduct and reassigned the case to a new district judge to obviate any doubts about the judge’s impartiality. Tumey v. Mycroft AI, Inc., Case No. 21-1975 (8th Cir. Mar. 4, 2022) (Erickson, J.)

Tod Tumey is a lawyer who represents Voice Tech Corporation in patent litigation against Mycroft AI, an open-source network focusing on voice assistance technology. Tumey separately sued Mycroft on his own behalf, alleging that Mycroft retaliated against him for representing Voice Tech by launching or inspiring a series of cyberattacks, hacking attempts and harassing phone calls (“heavy-breathing phone calls”) against Tumey, his law firm and his family.

Mycroft had publicized its involvement in the underlying patent litigation and shared negative views about “bogus patents” and “patent trolls,” including statements that it is “better to be aggressive and ‘stab, shoot, and hang’ them, then dissolve them in acid.” Mycroft posted on its blog links to Tumey’s “confidential correspondence,” as well as documents in the underlying patent infringement lawsuit. Mycroft also posted updates on litigation developments with headlines such as “Mycroft Defeats Patent Trolls … Again … For Now.” The company cautioned patent trolls to “stay away” from Mycroft because “You’ll get your ass kicked,” and posted that “Rather than pay the troll toll, we decided to accept the fight.” In the underlying patent litigation, Voice Tech moved for an order requiring decorous and civil conduct by the parties, including a request that Mycroft cease using the term “patent troll.” The district court granted the order, which Mycroft viewed as sufficiently narrow and limited in scope such that it was willing to comply with the restrictions rather than appeal.

In the case brought on his own behalf, Tumey sought a temporary restraining order or, in the alternative, a preliminary injunction to prevent the cyberattacks, phishing and harassing phone calls that he and his family were experiencing and for which Tumey believed Mycroft was responsible. Mycroft opposed the proposed temporary restraining order (TRO), arguing that there was no evidence to attribute any of the alleged conduct to Mycroft. Mycroft also submitted sworn declarations averring that no one associated with Mycroft was involved in cyberattacks or harassment. The district court set a teleconference on the “Motion for Temporary Restraining Order.” About an hour before the set time for the hearing, Tumey circulated to the court and counsel a new proposed order, now styled as a preliminary injunction (PI). At the hearing, Mycroft objected to converting the request for a TRO to a PI hearing. The district court overruled the objection and heard testimony from several witnesses, including Tumey and that of an expert retained by Tumey who testified that he had not found any forensic evidence to attribute any of the cyberattacks or harassment to anyone associated with Mycroft. When Tumey was asked about the results of the expert’s [...]

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