30 June

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The Consumer is King: High Court Sides with Booking.com, Rejecting Per Se Test for Generic.Com Trademarks

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“If ‘Booking.com’ were generic, we might expect consumers to understand Travelocity—another such service—to be a ‘Booking.com.’ We might similarly expect that a consumer, searching for a trusted source of online hotel-reservation services, could ask a frequent traveler to name her favorite ‘Booking.com’ provider. Consumers do not in fact perceive the term ‘Booking.com’ that way, the courts below determined.” – SCOTUS decision in Booking.com The U.S. Supreme Court has sided with Booking.com, ruling that a generic term paired with .com “is a generic name for a class of goods or services only if the term has that meaning to consumers.” The opinion was delivered...

30 June

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Intellectual Property and Bankruptcy: The IP Value Proposition that Startups Should Not Overlook During Financial Distress

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The global economic recession associated with COVID-19 is unmatched by anything aside from the Great Depression. During these times of financial distress, technology companies will benefit by paying particular attention to the value of their patent portfolio The international economic disruption caused by COVID-19 presents unprecedented challenges. Thriving tech startup companies worth millions in January might find themselves struggling to stay afloat today. This article highlights the value of intellectual property (IP) that companies – particularly small companies without an IP department – can sometimes overlook in times of financial distress. The policy goals behind IP rights are at odds with the goals of bankruptcy...

30 June

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Eighth Circuit Finds ‘Hot Pocket’ Patents Were Not Fraudulently Obtained

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“[T]he circuit court explained that there was no need to determine whether the prior sales were material because Inline did not present clear and convincing evidence that any Graphic employee who owed a duty of candor to the USPTO ‘knew that the prior sales were material [and] deliberately chose not to disclose them.’” On June 18, the U.S. Court of Appeals for the Eighth Circuit (the circuit court) affirmed the district court’s grant of summary judgment in Inline Packaging, LLC v. Graphic Packaging International, LLC, holding that the district court properly concluded that there was no genuine dispute of material fact regarding...

29 June

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This Week in Washington: Digitized Payment Systems, Operation Warp Speed and Changing American Tech

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This week in our nation’s capital, the Senate Banking Committee holds a hearing on introducing decentralized ledger technologies into government payment systems while the Senate Labor Subcommittee looks at Operation Warp Speed’s progress on developing a COVID-19 vaccine. Over in the House of Representatives, the House Rules Committee will look at amendments to the INVEST in America Act, a major transportation infrastructure bill which earmarks federal funding for mobility innovation programs. Elsewhere, New America looks at the impact that the year 2020 will have on the world of big tech while the Center for Strategic & International Studies discusses Main...

29 June

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Federal Circuit Agrees with PTAB that Firebug’s Footwear Claims Are Obvious

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“The CAFC explained that ‘[w]hile antecedent basis alone is not determinative of whether a preamble is limiting, use of preamble terms to define positive limitations in the body of claims can evince an inventor’s intent that the preamble limit the scope of the claim.’” On June 25, the U. S. Court of Appeals for the Federal Circuit (CAFC) affirmed an appeal from two final written decisions of the United States Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB) in Shoes By Firebug LLC v. Stride Rite Children’s Group, LLC, wherein the CAFC held that the PTAB did not err in...

28 June

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Ten Years From Bilski: The Beginning of the End, with No Improvement in Sight

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“In the years since Bilski, the Court has decided Mayo v. Prometheus, Myriad and Alice. If the decision in State Street can be said to have marked the onset of a golden era in the patentability of software and business method patents, the decision in Bilski marked the beginning of the end, and Alice was its death knell.” Ten years ago today, the U.S. Supreme Court handed down what at the time was one of the most important patent decisions in decades. It signaled a new era in patent law—not least of all because Bilski seemed to jump start the Supremes’ interest in patent cases. On this milestone anniversary, it’s worth reminding ourselves how...

27 June

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Illegal Circulation of E-Newspapers Online and Through Messaging Apps: Implications for Copyright and Contractual Violations

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“There are various measures newspaper houses can adopt to deal with the challenges of the digital era. Publications need to amend their copyright policies and terms of use and step up technological protection measures.” On March 25, 2020, the Indian government declared lockdown throughout the country, and we could not have anticipated the number of issues across all sectors that would surface in such a short time. Copyright infringement through social media turned out to be one such issue. At a time when so many industries are facing losses both in terms of work and revenue, the newspaper industry in India has...

26 June

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Other Barks & Bites for Friday, June 26: SCOTUS Denies Cert to PTAB Challenges, CAFC Issues Three New Precedential Patent Decisions, and Ninth Circuit Revives The Shape of Water Copyright Case

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This week in Other Barks & Bites: the House of Representatives approves a bill by voice vote which would enable the sale of acceleration certificates for patent applications in the Patents for Humanity Program; the Supreme Court denies cert to a trio of petitions challenging the Patent Trial and Appeal Board as unconstitutional under the Fifth Amendment’s Takings Clause; the Copyright Office begins accepting petitions for temporary exemptions to Section 1201 of the DMCA; the CAFC issues three new precedential decisions; the Ninth Circuit reverses the dismissal of copyright claims over The Shape of Water and also reverses a lower court for...

26 June

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Federal Circuit Affirms PTAB Finding that Adidas Did Not Prove Nike Patent Claims Unpatentable as Obvious

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“The obviousness inquiry does not merely ask whether a skilled artisan could combine the references, but instead asks whether ‘they would have been motivated to do so.’ Fundamental differences between the references are central to this motivation to combine inquiry.” – CAFC The U.S. Court of Appeals for the Federal Circuit (CAFC) yesterday affirmed a Patent Trial and Appeal Board (PTAB) decision that certain claims of Nike, Inc.’s U.S. Patent Nos. 7,814,598 and 8,266,749 are not unpatentable as obvious. The Court also disagreed with Nike’s argument that Adidas did not have standing to appeal because it could not prove that it had an “injury in...

25 June

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Avoid the Patent Pit of Despair: Drafting Claims Away from TC 3600

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“The way you draft an application greatly influences which Art Unit the application will be funneled into, and which Art Unit is assigned the application can in many cases be nearly dispositive of whether a patent issues—ever.” I’ve recently hosted two webinars on patent classification, taking a look at how contractors for the U.S. Patent and Trademark Office (USPTO) determine where to route each patent application within the Office after filing. One webinar dealt with classification generally and a second dealt specifically with classification relating to computer implemented inventions. These webinars were fascinating on many levels. Did you know that the old patent classification...

June 2020