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Prior Art-Based Invalidity Analysis May Be Possible for Indefinite Claim

by Alexander P. Ott | May 27, 2020 | Patents

Addressing a decision by the US Patent and Trademark Office’s Patent Trial and Appeal Board (Board) declining to find certain claims unpatentable because they contained means-plus-function elements without any corresponding disclosed structure, the US Court of Appeals for the Federal Circuit affirmed the Board’s decision except as to one challenged claim where the means-plus-function element was recited as an alternative to a non-means-plus-function element. Cochlear Bone Anchored Solutions AB v. Oticon Medical, AB, Case Nos. 19-1105, -1106 (Fed. Cir. May 15, 2020) (Taranto, J.).

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Arthrex Extended to Inter Partes Re-examination

by Paul Devinsky | May 27, 2020 | America Invents Act, Patents

The US Court of Appeals for the Federal Circuit denied a petition for panel rehearing regarding the constitutionality of decisions issued by the United States Patent and Trademark Office (USPTO) Patent Trial and Appeal Board (PTAB), holding that its decision in Arthrex, Inc. v. Smith & Nephew, Inc. (IP Update, Vol. 22, No. 11) also applies to final decisions issued by administrative patent judges (APJs) in inter partes re-examinations. Virnetx v. Cisco Systems, Inc., Case No. 19-1671 (Fed. Cir. May 13, 2020) (O’Malley, J.). The Court also denied (per curiam) a concurrently filed petition for rehearing en banc.

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Light Beer Sweetener – Not So Sticky After All

by Paul Devinsky | May 19, 2020 | Trademarks

The US Court of Appeals for the Seventh Circuit held that a brewing company’s statements that a competitor’s beers were made with corn syrup were not false and misleading under the Lanham Act because the competitor listed corn syrup as an ingredient in its beers. Molson Coors Beverage Co. USA LLC v. Anheuser-Busch Cos., LLC, Case Nos. 19-2200, -2713, -2782, -3097, -3116 (7th Cir. May 1, 2020) (Easterbrook, J.).

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For Your Information, Eighth Circuit Upholds Copyright Protection for Database Compilation

by Eleanor B. Atkins | May 14, 2020 | Copyrights

The US Court of Appeals for the Eighth Circuit addressed the copyright protection afforded to an information database and whether comments made to a reporter while litigation was ongoing violated the disparagement clause in a separation agreement. Ultimately, the Court affirmed a judgment against the defendant for copyright infringement and against its founder for breach of contract. In doing so, the Court upheld the findings that plaintiff’s database copyright was valid, even though it was only entitled to a narrow scope of protection, and that the defendant’s founder’s comments to a reporter violated his contract with the plaintiff. Infogroup, Inc. v. DatabaseUSA.com LLC, Case No. 18-3723 (8th Cir. Apr. 27, 2020) (Benton, J.).

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“Waive” Goodbye to Belated Argument that Administrative Patent Judges’ Appointment is Unconstitutional

by Paul Devinsky | May 14, 2020 | America Invents Act, Patents

Addressing whether a party can waive a challenge to the constitutionality of Administrative Patent Judges’ (APJs’) appointment, the US Court of Appeals for the Federal Circuit found that the issue is non-jurisdictional and therefore waivable. Ciena Corp. v. Oyster Optics, LLC, Case No. 19-2117 (Fed. Cir. Jan. 28, 2020) (O’Malley, J.) (reissued as precedential May 5, 2020).

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Federal Circuit Sinks Another Attempt to Use PTO Guidance

by Paul Devinsky | May 7, 2020 | Patents

The US Court of Appeals for the Federal Circuit found claims directed to methods of fishing to be patent ineligible, affirming a Patent Trial and Appeal Board (PTAB) decision that the claims were directed to the abstract idea of selecting a fishing hook based on observed water conditions. In re: Christopher John Rudy, Case No. 19-2301 (Fed. Cir. Apr. 24, 2020) (Prost, CJ).

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Seventh Circuit Slaps Online Marketer with Default Judgment, Permanent Injunction

by Allyson E. Riemma | May 7, 2020 | Trademarks

A unanimous panel of the US Court of Appeals for the Seventh Circuit upheld a default judgment and permanent injunction against an online marketer for trademark infringement, false advertising, dilution, unfair competition under the Lanham Act, and claims under Illinois statutory and common law. Quincy Bioscience, LLC v. Ellishbooks, et al., Case No. 19-1799 (7th Cir. Apr. 24, 2020) (Wood, J.).

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Stratus Update: Federal Circuit Affirms TTAB Refusal to Register Telecoms Mark

by McDermott Will & Schulte | Apr 30, 2020 | Trademarks

The US Court of Appeals for the Federal Circuit affirmed a US Patent & Trademark Office (PTO) Trademark Trial and Appeal Board (TTAB) refusal to register the mark STRATUS over the existing registration for STRATA, finding a likelihood of confusion between the two marks. Stratus Networks, Inc. v. UBTA-UBET Communications, Inc., Case No. 19-1351 (Fed. Cir. Apr. 14, 2020) (Reyna, J.).

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No Disgorgement When Injunction is Sufficient Remedy

by Jodi Benassi | Apr 23, 2020 | Trademarks

Addressing issues related to the disgorgement of profits and attorneys’ fees in a trademark infringement lawsuit, the US Court of Appeals for the Eighth Circuit affirmed a denial of such fees and profits. Safeway Transit LLC and Aleksey Silenko v. Discount Party Bus, Inc., Party Bus MN LLC, and Adam Fernandez, Case No. 18-2990 (8th Cir. Apr. 6, 2020) (Smith, J.).

In 2000, Alex Fernandez started Party Bus MN, which was the first party-bus company in the Twin Cities region. In 2004, Fernandez formed Discount Party Bus Co., LLC (DPB). Fernandez also used the names “Rent My Party Bus” and “952 Limo Bus” in print advertising before 2008.

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Federal Banks are “Persons” Under the AIA

by Amol Parikh | Apr 23, 2020 | Patents

The US Court of Appeals for the Federal Circuit held that the Federal Reserve Banks of several cities are “persons” under the America Invents Act (AIA) and therefore may petition for post-issuance review under the AIA. Bozeman Financial LLC v. Federal Reserve Bank of Atlanta et al., Case No. 19-1018 (Fed. Cir. Apr. 10, 2020) (Moore, J.).

Bozeman owns two patents directed to methods of authorizing and clearing financial transactions to detect and prevent fraud. The Federal Reserve Banks of Atlanta, Boston, Chicago, Cleveland, Dallas, Kansas City, Minneapolis, New York, Philadelphia, Richmond, San Francisco and St. Louis filed a petition for covered business method (CBM) review of several claims of Bozeman’s patents. The Patent Trial and Appeal Board (PTAB) ultimately found the challenged claims ineligible under 35 U.S.C. § 101. Bozeman appealed.

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