Posts in Courts

The U.S. Supreme Court today reversed an en banc decision of the U.S. Court of Appeals for the Federal Circuit (CAFC) in which Judge Pauline Newman dissented, a development Newman’s lawyers say belies CAFC Chief Judge Moore’s opinion that Newman is mentally unfit to serve on the court. The en banc decision was an appeal from the United States Court of Appeals for Veterans Claims in which Judges Newman and Reyna each separately dissented.

The U.S. Supreme Court on Monday denied a petition that challenged the U.S. Court of Appeals for the Ninth Circuit’s decision that found a district court had authority to impose $36 million in sanctions for abusive litigation practices in a trademark case. The underlying case relates to AECOM Energy & Construction, Inc.’s (AECOM) suit against Gary Topolewski, who owned a clothing business called Metal Jeans, Inc., for infringing use of trademarks associated with AECOM’s predecessor, Morrison Knudsen Corporation.

On April 10, Dr. Stephen Thaler filed a reply brief  at the U.S. Court of Appeals for the D.C. Circuit, continuing the artificial intelligence (AI) technologist’s legal challenge to the U.S. Copyright Office’s refusal to register copyright to an artwork generated by Thaler’s Creativity Machine. The reply brief argues that there is no human authorship requirement under the U.S. Copyright Act preventing Thaler from claiming copyright in the AI-generated work, and that standard principles of property law enables ownership of the work to vest in Thaler, who created the AI system at issue in the case.

In a precedential decision issued Friday by Judge Leonard Stark, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed a district court’s judgment that Luv n’ care, Ltd. and Nouri E. Hakim (LNC) succeeded in proving Lindsey Laurain and Eazy-PZ, LLC (EZPZ) were barred from relief due to unclean hands but vacated the court’s judgment for EZPZ of no inequitable conduct. The CAFC also vacated a grant of partial summary judgment of invalidity and vacated orders denying LNC attorney fees and costs.

Supermarkets compete aggressively for our custom. The entry of upstart discount supermarkets Lidl and Aldi into the market has created new pressures on the established brands, including Tesco— ironically, the original “pile it high and sell it cheap” operation. Supermarkets benchmark their prices against those charged by their competitors and offer loyal customers benefits, including, extremely attractive special offers when customers use their loyalty cards. They are no less aggressive when it comes to using and protecting their trademarks.

In a precedential decision authored by Judge Lourie, the U.S. Court of Appeals for the Federal Circuit affirmed a district court’s final judgment that certain claims of several patents owned by Salix Pharmaceuticals for a drug used to treat irritable bowel syndrome (IBS) and other ailments were invalid as obvious. The CAFC also affirmed an order of the district court that instructed the Food and Drug Administration (FDA) that the effective approval date of generic company Norwich’s Abbreviated New Drug Application (ANDA) may not precede the expiration dates of the claims of three other Salix patents that were found to be valid and infringed by Norwich. Norwich cross-appealed from that order and also from the denial of its motion to modify the district court’s final judgment.

The U.S. District Court for the Central District of California ruled on Friday that Shosh Yonay and Yuval Yonay, the widow and son of Ehud Yonay, who authored a 1983 magazine article that inspired the renowned film, Top Gun, were not entitled to damages for copyright infringement related to the 2022 sequel to the film. Yonay authored a magazine article titled “Top Guns,” published in California Magazine on April 21, 1983, that was an account of the experiences of F-14 pilots in training at Navy’s Fighter Weapons School, known as “Top Gun.”

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Monday affirmed an International Trade Commission (ITC) final determination that said Google infringed five of Sonos, Inc.’s patents but which also found three proposed redesigns did not infringe. Sonos owns U.S. Patent Nos. 10,439,896 (“’896 patent”), 9,195,258 (“’258 patent”), 9,219,959 (“’959 patent”), 10,209,953 (“’953 patent”), and 8,588,949 (“’949 patent”). Sonos filed a complaint with the ITC alleging certain Google audio players and controllers infringed the patents and the ITC agreed, issuing a limited exclusion order and a cease-and-desist order (CDO) preventing Google from marketing the infringing products in the United States.

The protection of privilege in communications between clients and lawyers is a very important one under U.S. law. The basic rule is that when a client seeks legal advice from a lawyer, the communication between the client and the lawyer is confidential and cannot be discovered during litigation. An important purpose of this rule is to encourage clients to communicate fully and freely with lawyers in the process of seeking legal help. The lawyers here include both external lawyers and in-house lawyers.

The U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision decision authored by Judge Reyna today affirming a district court’s grant of a Rule 12(b)(6) motion alleging that AI Visualize’s patent claims were ineligible under Section 101. AI Visualize owns U.S. Patent Nos. 8,701,167 (’167 patent), 9,106,609 (’609 patent), 9,438,667 (’667 patent), and 10,930,397 (’397 patent), which all relate to visualization of medical scans. AI Visualize sued Nuance Communications, Inc. and Mach7 Technologies, Inc. for patent infringement. Nuance filed a motion to dismiss for failure to state a claim, arguing the claims were directed to patent ineligible subject matter. Since AI Visualize’s Amended Complaint provided no further information about the eligibility of the claims and neither party asked for claim construction, the district court reviewed the eligibility of the claims and concluded they were all ineligible.

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Wednesday affirmed a number of district court orders against inventor Urvashi Bhagat, whose patent application  was rejected by the U.S. Patent and Trademark Office (USPTO). Bhagat’s U.S. patent application No. 13/877,847 covers orally-delivered nutritional formulations containing omega-6 fatty acids and antioxidants. The application was filed in 2013 and the USPTO examiner rejected all claims as obvious, two claims as lacking written description, several other claims as indefinite and others for improper dependency. On appeal to the PTAB, the Board summarily affirmed the dependency and indefiniteness rejections, affirmed the obviousness rejection on the merits and reversed the written description rejection. Bhagat then appealed to the U.S. District Court for the Eastern District of Virginia, claiming the USPTO erroneously rejected her patent claims and asking for damages due to the Office’s bad faith and for taking her property.

In a nod to Mark Twain’s famous quote, the rumors of the death of IP Edge are greatly exaggerated. It appears the prolific NPE aggregator has either sold or transferred at least one portfolio (and potentially up to 40) to a new entity, Inferential Capital, LLC, which after hiring, has begun asserting again—more below.  On the stats, it was a slightly below average week at both the Patent Trial and Appeal Board (PTAB) and in the district courts. At the PTAB, there were 25 new patent filings, with one post-grant review and 24 inter partes reviews (IPR). 

Did you know that Brazil’s medical device market is experiencing a surge, attracting billions in imports annually? This boom, however, is attracting not only legitimate businesses but also those looking to exploit loopholes. On average, more than US$6.7 billion worth of products are imported annually, with around 14,000 new products being introduced every year. One example is the increase in sales of equipment for endoscopic surgeries, given the rise in the number of bariatric surgeries, which already exceeds 70,000 procedures per year.

On April 1, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in BBK Tobacco & Foods LLP v. Central Coast Agriculture, Inc. affirming a lower court’s ruling that canceled trademark applications pending at the U.S. Patent and Trademark Office (USPTO). The Ninth Circuit panel majority determined that the district court had statutory authority to invalidate a trademark application for no bona fide intent to use over a dissent authored by U.S. Circuit Judge Patrick Bumatay, who argued that district courts lacked the authority to cancel trademarks before registration by the USPTO.