Split Ninth Circuit Panel Rejuvenates Doctrine of Initial Interest Confusion

Imagine you are driving to Flagstaff for the weekend and, as you approach Camp Verde, you really could go for a McDonald’s hamburger.  You see a McDonald’s sign from the highway, take the exit, and learn that the sign actually directs you to a Burger King.  “Oh well,” you think, “I guess I’ll take Burger King instead.”  You knew you weren’t getting McDonald’s when you made the purchase.  But were you the victim of trademark infringement nonetheless, since you thought you were getting McDonald’s when you took the exit, and wouldn’t have bought Burger King absent that initial confusion? Or   Read More »

Posted in Internet and Domain Name Litigation, Trademark Litigation | Tagged ,

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Supreme Court Holds Patent Royalties Expire When Patent Expires

In 1964, the Supreme Court held, in Brulotte v. Thys Co., that a patent owner may not receive royalties on a patent after the patent expires.  Today, in Kimble v. Marvel Entertainment, the Supreme Court declined to overturn Brulotte, relying on stare decisis, which “carries enhanced force when a decision, like Brulotte, interprets a statute.”  In dissent, Justice Alito disagreed that Brulotte interpreted a statute, arguing it is “a judge-made rule and is not grounded in anything that Congress has enacted.” As part of a patent infringement settlement, Marvel purchased Kimble’s patent on a “toy web-shooting glove,” allowing Marvel to   Read More »

Posted in Patent Litigation | Tagged ,

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Federal Circuit Remands Because PTAB’s Claim Construction Was “Unreasonably Broad”

The Patent Trial and Appeal Board (PTAB) administers post-grant patent proceedings under the America Invents Act. The PTAB has invalidated many patent claims, and has been referred to as a patent “death squad.” But a recent Federal Circuit decision reversed the PTAB’s holding that claims owned by Proxyconn, Inc., were invalid, delivering encouraging news to patent owners. The Federal Circuit held that the PTAB’s claim construction was “unreasonably broad,” which lead to the PTAB invalidating certain claims of Proxyconn’s patent in an inter partes review (IPR). The Federal Circuit reaffirmed the PTAB’s “broadest reasonable interpretation” standard for construing claims in IPRs,   Read More »

Posted in Patent Litigation, Post Grant Proceedings | Tagged , ,

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Supreme Court Invokes Common Law Principles in Largely Pro-Patent Decision: Good-Faith Belief of Invalidity Is Not a Defense to Induced Patent Infringement

The Supreme Court decided today in Commil USA, LLC v. Cisco Systems, Inc. that an accused infringer’s good-faith belief that a patent is invalid, standing alone, is not a defense to induced infringement.  As discussed in greater detail in our earlier post, the Federal Circuit reversed the district court’s ruling that prohibited Cisco from presenting evidence of its good-faith belief that Commil’s patent was invalid, as a defense to induced infringement. Among other things, the Court reasoned that a different result would contravene the presumption that a patent is valid. To overcome that presumption, a defendant must provide clear and convincing   Read More »

Posted in Patent Litigation | Tagged , ,

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Federal Circuit Holds Biosig’s Patent Not Indefinite Under New Standard

Applying the Supreme Court’s new “reasonable certainty” standard for patent definiteness in Biosig Instruments, Inc. v. Nautilus, Inc. (2015) (Nautilus III), the Federal Circuit again held that Biosig’s patent for a heart rate monitor is not indefinite.  In Nautilus II (2014), the Supreme Court rejected the Federal Circuit’s “insolubly ambiguous” standard for indefiniteness, but did not determine whether Biosig’s patent was indefinite. Biosig argued that “reasonable certainty” “is not a new standard; it is the degree of clarity in patent claiming that has governed for nearly one hundred years.”  And the Federal Circuit appears to have agreed, calling “reasonable certainty” a “familiar standard”; “the   Read More »

Posted in IP and Technology Litigation, Patent Litigation | Tagged ,

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