Breakthrough Technology Can Be Patent Ineligible
Even breakthrough technology can be patent ineligible. On June 12, 2015, the Court of Appeals for the Federal Circuit issued its opinion in Ariosa Diagnostics, Inc. v. Sequenom, Inc. This decision included a majority opinion by two of the three judges on the panel, and a “concurrence” that signal an extremely restrictive approach to biotechnology…
Is The Lanham Act’s Bar On Registration Of Disparaging Marks Constitutional?
On April 20, 2015 a three judge panel of the Court of Appeals for the Federal Circuit (“CAFC”) affirmed the Trademark Trial and Appeal Board’s (“TTAB”) decision refusing to register the mark THE SLANTS for “entertainment in the nature of live performances by a musical band” on the grounds that the mark violated Section 2(a)…
Issue Preclusion May Apply To TTAB Decisions
The U.S. Supreme Court has ruled that a decision of the Trademark Trial and Appeal Board (“TTAB”) on likelihood of confusion may preclude re-litigation of the issue in a later filed suit in a district court for trademark infringement, but only if the issues before the TTAB and district court are “materially the same.” B&B…
A Practitioner’s Guide To Patent Litigation In Germany, Japan And The United States
The firm is pleased to announce the publication of A Practitioner’s Guide to Patent Litigation in Germany, Japan and the United States (Hart Publishing 2015) co-authored by founding Partner Jeffrey Schwab. The book provides a comparative overview on patent law and patent litigation proceedings in Germany/Europe, Japan and the United States. The systematic presentation of…
Guidance From The Federal Circuit On RAND License Royalties
Devices manufactured by different companies can often work together because they adhere to standards established by industry groups. Where the standards are based upon patented subject matter (“standard essential patents” or “SEPs”), the standard-setting groups typically require that the patentee establish reasonable and non-discriminatory (RAND) terms for licensing its technology. In patent infringement cases not…
Supreme Court Holds Jury Should Decide The Issue Of Trademark Tacking
In a unanimous decision the U.S. Supreme Court held that trademark tacking is an issue of fact to be decided by a jury. “We hold only that, when a jury trial has been requested and when the facts do not warrant entry of summary judgment or judgment as a matter of law, the question of…
Supreme Court Modifies Appellate Standard For Claim Construction Review
On January 20, 2015, the United States Supreme Court issued its decision in Teva Pharmaceuticals USA, Inc. v Sandoz, Inc. The Court held appellate review of subsidiary fact findings made in the course of patent claim construction must be reviewed in accordance with the clearly erroneous standard of Federal Rule of Civil Procedure 52(a)(6). This…
Abelman, Frayne & Schwab Produces A Major Trademark Win — Federal District Court In Louisville Finds That The “Jefferson’s Ocean Aged At Sea” Trademark For Bourbon Does Not Infringe The “OCEAN” Trademark For Vodka
On June 17, 2014, Hawaii Sea Spirits, LLC (“HSS”), the producer of OCEAN ORGANIC vodka, filed a Complaint in the United States District Court for the Western District of Kentucky against our client, McLain & Kyne, Ltd. (“McLain”), the producer of JEFFERSON’S OCEAN AGED AT SEA small batch Kentucky bourbon. The Complaint alleged that the…
U.S. Supreme Court Lowers The Burden To Obtain An Award Of Attorney’s Fees In Patent Cases
On April 29, 2014, the United States Supreme Court lowered the burden required for a prevailing party to recovery attorney’s fees in certain patent litigations. In two unanimous decisions the Court set aside Federal Circuit precedent defining a framework for evaluating “exceptional cases” (Octane Fitness LLC v. ICON Health & Fitness, Inc) and the standard…
To Be Or Not To Be Transformative: Copyright Fair Use
How does the law determine what is considered to be the fair use copying of another artist’s work? How close can the copier come to the original without being deemed an infringer? In Patrick Cariou v. Richard Prince, the renowned appropriation artist Richard Prince used complete and partial images from a series of photographs taken…
