ALEXANDRIA, Va. - A recent ruling by the Patent Trial and Appeal Board that established a series of factors to consider when multiple petitions for inter partes review (IPR) of one patent are filed by one party should not have been relied on by the board in turning away a petition for IPR in October, the petitioner asserts in a Nov. 13 request for rehearing (NetApp Inc. v. Realtime Data LLC, No. IPR2017-01196, PTAB).
WASHINGTON, D.C. - Findings by the Trademark Trial and Appeal Board that the "Sensi" trademark in Class 5 of the Trademark Classifications for Goods and Services for diapers would likely cause confusion with two previously registered marks for "Sensi-Care" for use in connection with a treatment for diaper rash were not erroneous, the Federal Circuit U.S. Court of Appeals ruled Nov. 13 (In re: P.T. Arista Latindo, No. 17-1292, Fed. Cir., 2017 U.S. App. LEXIS 22637).
WASHINGTON, D.C. - In granting a petition for mandamus by Micron Technology Inc. on Nov. 14, the Federal Circuit U.S. Court of Appeals resolved lingering uncertainty following the May 2017 U.S. Supreme Court ruling in TC Heartland LLC v. Kraft Foods Group Brands LLC, deeming the case an intervening change of law (In re: Micron Technology Inc., No. 17-138, Fed. Cir.).
HARRISBURG, Pa. - A Pennsylvania appellate panel on Nov. 13 found that an employee's tweet, which led to her dismissal, did not violate her employer's social media policy and, thus, did not constitute willful misconduct to disqualify her from receiving unemployment compensation (UC) benefits (Waverly Heights Ltd. v. Unemployment Compensation Board of Review, No. 312 CD 2017, Pa. Cmwlth.).
NEW ORLEANS - An allegation of unfair competition by misappropriation under Texas law was properly rejected by a Texas federal judge on the basis of federal preemption under the Copyright Act, 17 U.S.C. 101 et seq., and Patent Act, 35 U.S.C. 1 et seq., the Fifth Circuit U.S. Court of Appeals ruled Nov. 14 (Motion Medical Technologies LLC, et al. v. ThermoTek Inc., No. 16-11381, 5th Cir., 2017 U.S. App. LEXIS 22826).
ALEXANDRIA, Va. - An October decision by the Patent Trial and Appeal Board to grant Apple Inc.'s motion to file supplemental information in its challenge to a California Institute of Technology (Caltech) patent is "deeply prejudicial in both its timing and its scope," the university told the board on Nov. 13 (Apple Inc. v. California Institute of Technology, No. IPR2017-00728, PTAB).
ALEXANDRIA, Va. - A challenge by the U.S. States Department of Justice to various claims of a security alarm system patent was partly successful Nov. 10, when the Patent Trial and Appeal Board agreed that 18 claims are unpatentable as anticipated (U.S. Department of Justice v. Discovery Patents LLC, No. IPR2016-01041, PTAB).
DALLAS - In a joint filing Nov. 13 in Texas federal court, Yahoo! Inc. and a former promotional partner announced that they had stipulated to settlement of the remaining issues in a remanded case centering on contractual disputes over a 2014 online NCAA contest three months after the Fifth Circuit U.S. Court of Appeals found that Yahoo owed the plaintiff $4.4 million (SCA Promotions Inc. v. Yahoo! Inc., No. 3:14-cv-00957, N.D. Texas).
SOUTH BEND, Ind. - Efforts by a patent owner to obtain a preliminary injunction barring a competitor from selling a similar device designed to aerate and dispense wine were unsuccessful on Nov. 13, when an Indiana federal judge questioned the likelihood that the lawsuit will succeed (MercAsia USA Ltd. v. 3BTech Inc., et al., No. 17-718, S.D. Ind., 2017 U.S. Dist. LEXIS 187000).
WASHINGTON, D.C. - In a reversal of its previous findings, the Federal Circuit U.S. Court of Appeals on Nov. 13 upheld a Wisconsin federal judge's decision to deny a new trial on damages and infringement of various genetic testing kit patents (Promega Corporation v. Life Technologies Corp., No. 13-1011, Fed. Cir., 2017 U.S. App. LEXIS 22635).
RICHMOND, Va. - Allegations that the creator of a cloud computing environment committed computer fraud when it copied and transferred data to former employees of a company it once contracted with are preempted by the Copyright Act, the Fourth Circuit U.S. Court of Appeals ruled Nov. 13 (OpenRisk LLC v. MicroStrategy Services Corp., No. 16-1852, 4th Cir., 2017 U.S. App. LEXIS 22736).
WASHINGTON, D.C. - The owner of a patent covering the short bowel syndrome (SBS) drug Gattex argued before the Federal Circuit U.S. Court of Appeals on Nov. 9 that the Patent Trial and Appeal Board erred in deeming various claims obvious under Section 103 of the Patent Act, 35 U.S.C. 103 (In re: NPS Pharmaceuticals Inc., No. 17-1392, Fed. Cir.).
WASHINGTON, D.C. - A Florida federal judge did not err in rejecting allegations by Amgen Inc. and Amgen Manufacturing Limited (Amgen, collectively) that proposed biosimilar versions of two Amgen pegfilgrastim and filgastim products would infringe a patented method of refolding recombinant proteins expressed in non-mammalian cells, the Federal Circuit U.S. Court of Appeals ruled Nov. 13 (Amgen Inc., et al. v. Apotex Inc., et al., No. 17-1010, Fed. Cir., 2017 U.S. App. LEXIS 22638).
NEW YORK - A class complaint alleging that the live stream of an August boxing match suffered from technical failures and caused pay-per-view viewers to miss large portions of the fight was stayed Nov. 7 by a New York federal judge, who ordered the matter to arbitration (Victor Mallh, et al. v. Showtime Networks Inc., No. 17-6549, S.D. N.Y., 2017 U.S. Dist. LEXIS 184471).
FORT LAUDERDALE - A Florida federal judge on Nov. 8 granted Gucci America Inc.'s motion for a preliminary injunction against 75 website operators that the plaintiff said were selling counterfeit goods bearing the "Gucci" mark, finding Gucci "very likely" to succeed in its trademark infringement claims (Gucci America Inc. v. 532buy.com, et al., No.0:17-cv-62068, S.D. Fla.).
WILMINGTON, Del. - Allegations that Home Depot U.S.A. Inc. directly infringed various method claims of two patents by providing installation guides and videos on its website for accused luxury vinyl tile and wood plastic composite flooring products should be dismissed, a Delaware federal magistrate judge ruled Nov. 9 (Valinge Innovation AB v. Halstead New England Corporation, et al., No. 16-1082, D. Del., 2017 U.S. Dist. LEXIS 185826).
SAN JOSE, Calif. - Responding to discovery disputes by the parties in a lawsuit alleging monopolization and false advertising of patents for specialty medical software, a California federal judge on Nov. 6 clarified a previous order compelling production, differentiating between fact and opinion work product in the context of waiver of privilege (Cave Consulting Group Inc. v. OptumInsight Inc., No. 3:15-cv-03424, N.D. Calif, 2017 U.S. Dist. LEXIS 183672).
ALEXANDRIA, Va. - R.J. Reynolds Vapor Co. on Nov. 6 requested rehearing of an Oct. 23 ruling by the Patent Trial and Appeal Board that partly denied institution of inter partes review (IPR) of an electronic cigarette patent (R.J. Reynolds Vapor Co. v. Fontem Holdings 1 BV, No. IPR2017-01120, PTAB).
WASHINGTON, D.C. - A Texas federal judge's denial of a motion to dismiss a declaratory judgment action relating to patent, copyright and trade dress protection for fiberglass utility bodies for use with trucks was affirmed Nov. 7 by the Federal Circuit U.S. Court of Appeals, which agreed that an actual case or controversy existed between the parties (Industrial Models Inc. v. SNF Inc., et al., Nos 17-1172, -1173, Fed. Cir.).
NEW YORK - A New York federal judge did not err in rejecting allegations that a licensee violated the Digital Millennium Copyright Act (DMCA), 17 U.S.C. 1201(a), when it modified security measures to prevent two software programs from self-enforcing certain licensing restrictions because the plaintiffs failed to demonstrate the copyrightability of the underlying programs, the Second Circuit U.S. Court of Appeals ruled Nov. 8 (Dynamic Concepts Inc. and Point 4 Data Corp. v. Tri-State Surgical Supply, et al., Nos. 15-0563, -3212, 2nd Cir., 2017 U.S. App. LEXIS 22348).
LOS ANGELES - A California federal judge on Nov. 6 entered a default ruling in favor of a health and fitness company on its claims for violation of California's unfair competition law (UCL) and trademark infringement against a company that was selling its products online, awarding the owner of the trademarks $213,731.02 in damages and fees (Beachbody LLC v. Power Trade Direct, et al., No. 17-2093, C.D. Calif., 2017 U.S. Dist. LEXIS 183739).
NEW YORK - Responding to a summary judgment motion filed by the U.S. Department of Justice (DOJ), on behalf of President Donald J. Trump and three top aides, a group of people that have been blocked from the president's Twitter account filed a cross-motion on Nov. 3 in New York federal court, defending their claims under the First Amendment to the U.S. Constitution (Knight First Amendment Institute at Columbia University, et al. v. Donald J. Trump, et al., No. 1:17-cv-05205, S.D. N.Y.).
TRENTON, N.J. - An engineering firm in a misappropriation of trade secrets lawsuit has failed to show that it had a valid copyright registration or had applied for a copyright it alleges two former employees misappropriated after becoming employed by the firm's competitor, a federal judge in New Jersey ruled Nov. 6 in dismissing the firm's complaint without prejudice (Kipcon Inc. v. D.W. Smith Associates LLC, No. 17-3190, D. N.J., 2017 U.S. Dist. LEXIS 183576).
ALEXANDRIA, Va. - In a Nov. 3 petition for inter partes review (IPR), a medical device company took aim at a patented, implantable medical device with rechargeable, transcutaneous battery, on grounds that the invention would have been obvious to a person of skill in the art (Nevro Corp. v. Boston Scientific Neuromodulation Corp., No. IPR2018-00141, PTAB).
SAN JOSE, Calif. - On Nov. 2, a California federal judge granted preliminary injunctive relief to stop domestic enforcement of a Canadian Supreme Court requiring Google LLC to remove listings for a trade secret infringing firm from all of its websites globally, with the judge finding that the "order undermines the policy goals of [the Communications Decency Act (CDA)] and threatens free speech on the global internet" (Google LLC v. Equustek Solutions Inc., No. 5:17-cv-04207, N.D. Calif., 2017 U.S. Dist. LEXIS 182194).