Posts Tagged: "intellectual property"

The Federal Circuit recently affirmed a decision by the U.S. District Court for the Northern District of California dismissing a complaint for patent infringement on the grounds of res judicata. See Sowinski v. Cal. Air Res. Bd., No. 2019-1558, 2020 U.S. App. LEXIS 26616 (Fed. Cir. Aug. 21, 2020) (Before Newman, Lourie, and Schall, Circuit Judges) (Opinion for the Court, Newman, Circuit Judge). On November 24, 2015, Dr. Richard Sowinski, the owner of Patent No. 6,601,033 (the ’033 patent), sued the California Air Resources Board (CARB) and several individual and corporate defendants for infringement of the ’033 patent. After Dr. Sowinski failed to file a response to several motions to dismiss, the district court dismissed the complaint with prejudice and without leave to amend pursuant to Central District of California Local Rule 7–12. On appeal, the Federal Circuit affirmed the dismissal, concluding that the Central District of California had considered all of the relevant factors and that there was no clear error of judgment.

This week in Other Barks & Bites: Representatives DelBene and Schweikert introduce bill to curb abuse at the International Trade Commission; the Federal Circuit issues a pair of precedential decisions regarding proper claim construction in patent cases; India’s Supreme Court upholds “Coronil” trademark over COVID-19 concerns; UK’s Supreme Court affirms the jurisdiction of English courts in setting global FRAND rates for SEP licensing; Commerce Department’s revised second quarter GDP figures still mark the worst economic contraction for the U.S. in history; activist research group KEI asks the DoD to investigate Moderna’s nondisclosure of DARPA funding for mRNA technology; Kanye West faces lawsuit for misappropriating e-commerce technology platform; and Judge Connolly finds that Fish & Richardson’s representation of a client suing a former Fish client does not pose a conflict of interest.

The United States Patent and Trademark Office (USPTO) recently announced the COVID-19 Prioritized Examination Pilot Program, under which the USPTO will advance certain patent applications related to COVID-19 “out of turn,” resulting in prioritized examination for qualifying applications. Under this program, the USPTO reportedly aims to provide final disposition of qualifying applications within one year of the filing date, meaning that a final office action or notice of allowance will be mailed (or a notice of appeal will be filed) during this shortened one year timeframe. For comparison, it typically takes the USPTO roughly 16 months from the filing of an application to mail a first office action.

On August 23, Microsoft filed a declaration in support of Epic Games, Inc.’s August 13th Complaint for Injunctive Relief against Apple, Inc., in which Epic alleged that Apple has been using “a series of anti-competitive restraints and monopolistic practices” through its distribution of software applications (apps) and its processing of consumers’ payments for digital content used within iOS mobile apps (in-app content). The declaration emphasized that Epic Games’ Unreal Engine is “a critical technology” for game creators, including Microsoft. It explained that game engines provide game creators with a “developmental environment that delivers the necessary graphics, rendering, physics, sound, networking, and other technologies that enable them to build games that run on multiple platforms.”

District court patent filings and filings with the Patent Trial and Appeal Board (PTAB) were relatively subdued this week, with 53 new complaints and 31 PTAB filings; the PTAB filings were puffed up by L&L Candle Company firing off three IPRs against Sterno company, three diaper IPRs dropped on Paul Hartmann AG, and Qualcomm IPRs as outlined below; the district court saw the typical activity, plus a pro se PTA suit and a few further complaints from frequent and longtime litigants Gil Hyatt and Lakshmi Arunchalam.

A case that is currently before the Trademark Trial and Appeal Board (TTAB), Proceeding No. 92071980, is no run-of-the-mill cancellation petition. Elevated Faith LLC v. GODISGHL, LLC,  concerns the right to register religious symbols and exposes critical flaws in trademark examination; in some ways it might be considered a progeny of Matal v. Tam and Iancu v. Brunetti. Naturally, it also involves a celebrity.

In a ruling concerning patent portfolios owned by Unwired Planet and Conversant, the UK Supreme Court has upheld lower decisions that English courts can determine fair, reasonable and non-discriminatory (FRAND) terms for worldwide patent licenses, and grant injunctions. The Court’s unanimous judgment in the three cases (Unwired Planet International Ltd and another v Huawei Technologies (UK) Co Ltd and another, Huawei Technologies Co Ltd and another v Conversant Wireless Licensing SÀRL and ZTE Corporation and another v Conversant Wireless Licensing SÀRL [2020] UKSC 37) was issued today (August 26), after the Court heard arguments in October 2019.

How many types of fruit does one mega-company need to protect its trademarks? Apparently, Apple Inc. believes an image of a pear used in connection with a meal preparation app is too close for comfort and that it is entitled to prevent its use. Bananas, you say? Possibly, but it’s also not uncommon for companies that have invested millions in establishing, promoting and protecting a trademark to take no prisoners in the battle for brand supremacy.

The value of your company’s intellectual property cannot be understated, particularly in the current economic climate. But this should not be news to you, especially if you are in the business of displaying your brand name or logo on merchandise for sale. In that case, you know how important it is to protect your trademarks, so as to thwart the attempts of opportunistic parties that seize upon your IP for their own profit. Case in point: online companies selling apparel featuring the names, logos, and even mascots of high schools and colleges nationwide without any prior authorization to do so. How do businesses like these get away with what seems to be a fundamentally illegal business model—selling knockoff hoodies, tees, and similar spirit wear?

As outlined in Part I of this two-part article, Waco, Texas residents exude a more western mentality than Marshall’s residents. The small town that once served as a pit stop between Dallas and Austin has turned into its own charming cosmopolitan city, serving almost as a bedroom community for those with periodic work in Dallas and Austin…. Instead of attorneys comparing Marshall to Waco, they would be more accurate to compare the Sherman division’s Denton and Collin counties to the Waco division. Comprising about 80% of panelists in a Sherman division jury selection, jurors from both Denton and Collin counties exude a more western independent mentality than other Eastern District of Texas (EDTX) jurors. Denton and Collin counties have recently transitioned from ranching and farming into commuter suburbs a couple of decades ago, and now the counties have their own stand-alone cosmopolitan and sporting areas. Although lacking the diversity of the Sherman division, over time the Waco division’s growth will likely align it more closely to the Sherman division—a division much more friendly to defendants than Marshall.   

I recently had the opportunity to conduct an interview with Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, via WebEx. The focus of our conversation was the COVID-19 pandemic: USPTO efforts to work with stakeholders, the role of intellectual property in finding cures and treatments, and general thoughts relating to what the Office is observing. Our conversation also veered into Bayh-Dole and the the letter just sent by three-dozen state Attorneys General asking the federal government to use march-in rights against Remdesivir.