Intellectual Property Law
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Our goal is to provide cutting-edge information about recent developments in intellectual property law, including relevant case law updates, proposed legislation, and intellectual property law in the news.
Post Frequency: 0.9/day Last Entry: November 11, 2009 at 15:49:00 Recent Entries: 284
By McKee, Voorhees & Sease, P.L.C.
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Highlights from oral arguments in Bilski v. Kappos
Posted on November 11, 2009On Monday, the Supreme Court heard oral argument in Bilski v. Kappos in an effort to determine the proper test to be applied to determine whether a claim is patentable subject matter under § 101. The oral argument transcript is available from the Court's website here...
Fourth Circuit: Plagiarism detection service is fair use of students' copyrighted papers
Posted on October 26, 2009In a recent decision by the Court of Appeals for the Fourth Circuit, the court decided that the anti-plagiarism service provided by iParadigms at turnitin.com, did not constitute copyright infringement of high school students' papers submitted via the service...
En banc Federal Circuit to address potential patent misuse issues in license practices
Posted on October 20, 2009The Federal Circuit has agreed to hear en banc an interesting issue with regard to the potential for patent misuse in licensing. The case is Princo Corp. v. ITC. At issue is the patent pool related to the technology used for CD-R and CD-RW discs...
Attendance at single trade show to display infringing product sufficient for personal jurisdiciton
Posted on October 20, 2009In a case of first impression for the Federal Circuit, the court addressed the issue of how to apply Federal Rule 4(k)(2) (the Federal Court's long-arm statute) to a defendant. The court, in agreement with several other circuits, that a Rule 4(k)(2) analysis is appropriate when (1) the plaintiff's claim arises under federal law, (2) the defendant is not amenable to jurisdiction in any individual state, and (3) the exercise of jurisdiction comports with due process...
Dependent claim can't be obvious when indepdendent claim is not; verdict vacated as inconsistent
Posted on October 19, 2009In a recent decision, the Federal Circuit affirmed-in-part a district court's decision regarding obviousness, holding the defendant was not entitled to summary judgment that the asserted claims were invalid for obviousness. The court vacated the district court's entry of judgment of an inconsistent jury verdict of obviousness: the jury held a dependent claim obvious but the independent claim from which it depends not obvious...
Claim and continuation rules dead: thousands of practitioners breathe easier
Posted on October 14, 2009In a Federal Register notice today, the USPTO has officially withdrawn the claim and continuation rule changes from the Code of Federal Regulations. This is consistent with a press release from Thursday announcing the rules were no longer going to be pursued...
Manuscript filed with copyright office not necessarily publicly available as of filing date
Posted on September 25, 2009In a decision Tuesday, the Federal Circuit held the USPTO had not provided sufficient evidence that an inventor's manuscript was publicly accessible, and therefore available as prior art under § 102(b), before the critical date of the application...
Seventh Circuit: Notice requirement to Copyright Office when registration refused not jurisdictional
Posted on September 22, 2009In a recent decision, the Seventh Circuit affirmed a district court's grant of summary judgment that a plaintiff could not prevail in her copyright claim. The court first addressed whether the plaintiff complied with the necessary procedural requirements to have her claim heard...
Programming note
Posted on September 22, 2009As many have surely noticed, while we have covered the major issues that have arisen, the pace of posts here at Filewrapper has slowed down of late. This is a reflection of the recent demands of the actual practice of law. The good news is the blogging pace should pick up soon, and look for the rate of posts to be back at its normal level in the coming weeks.
Today's eCommerce lesson: There's no upside to using others' trademarks in your website meta tags
Posted on September 22, 2009Those who have a passing familiarity with website design are probably familiar with the concept of meta tags. Meta tags are pieces of data included in the HTML code of a webpage that provide information regarding the content of the page. You can view the code of a webpage you are visiting by clicking the "view" menu and, in IE, selecting "source," or in Firefox, selecting "page source...
USPTO issues new section 101 guidelines for use until Supreme Court decides Bilski v. Doll
Posted on August 28, 2009This week the USPTO has issued new guidelines to patent examiners on how to handle § 101 patentable subject matter issues in light of the Federal Circuit's ruling in In re Bilski. The guidelines are distilled into two flow charts and an instructional memo to examiners on how to conduct the analysis...
Federal Circuit to consider whether a separate written description requirement exists in section 112
Posted on August 23, 2009In an en banc order Friday, the Federal Circuit announced it will rehear Ariad Pharmaceuticals, Inc. v. Eli Lilly & Co. en banc to consider whether there is a written description requirement in § 112 separate and apart from the enablement requirement...
USPTO announces e-Office Action program for patent applications
Posted on July 22, 2009In a press release, the USPTO announced the availability of the e-Office Action program for patent applications. Under the program, applicants or attorneys may sign up to receive an email notice when an office action is mailed in an application, and can then download the office action from Private PAIR...
Digital Britain: The UK Government's vision for a 21st century digital economy
Posted on July 07, 2009Last month, the UK Department for Culture, Media, and Sport released Digital Britain, a report regarding the future of communications infrastructure in the UK, how to deal with challenges of a digital economy (such as copyright infringement), and containing policy recommendations regarding how to move forward...
Federal Circuit to hear claim and continuation rule case en banc
Posted on July 06, 2009In an order this afternoon, the Federal Circuit agreed to hear en banc Tafas v. Doll, the case challenging the USPTO's claim and continuation rules. Back in March, a panel of the court held, in a 2-1 decision, the limits on continuation applications were invalid, but the remainder of the rules were not invalid, at least for the reasons given by the district court...
Three disputed claim terms, three revised constructions, one remand
Posted on June 23, 2009In a recent decision, the Federal Circuit vacated and remanded a district court's judgment of noninfringement based on the parties' stipulation after claim construction. The district court construed three claim terms in a way that the parties agreed rendered all accused products noninfringing, and the plaintiff appealed...
Obama to nominate David Kappos for USPTO director
Posted on June 18, 2009According to the website of Senator Patrick Leahy, President Obama will nominate David J. Kappos to be the next Undersecretary of Commerce for Intellectual Property and Director of the U.S. Patent And Trademark Office. The nomination does not yet appear on the White House's nominations and appointments page (Update: here is the While House press release)...
When analyzing written description in interference, claims construed according to patent copied from
Posted on June 16, 2009In a recent decision, the Federal Circuit reversed a district court's grant of summary judgment in a § 146 action brought after an interference proceeding at the USPTO. The district court agreed with the Board's decision to award priority to the senior party in the interference, granting the senior party's motion for summary judgment that its specification satisfied the written description requirement for the interference count...
Close but no cigar: ITC gets 4 of 5 claim constructions correct, but must reconsider 2 issues
Posted on June 15, 2009In a recent decision, the Federal Circuit addressed a variety of claim construction, infringement, and validity issues in an appeal from the International Trade Commission. After construing five disputed claim terms, the ITC held one of four representative products infringed, the remaining three did not infringe, and one claim invalid as anticipated...
In license agreement, right to "have made" implicitly granted with right to make
Posted on June 15, 2009In a recent decision, the Federal Circuit affirmed a district court's dismissal of a patent licensor's claims for breach of a license agreement and patent infringement. The non-exclusive licensee arranged to have third parties manufacture the licensed product, but the product was sold by the licensee...
Federal Circuit clarifies how to analyze likelihood of success at preliminary injunction stage
Posted on June 08, 2009The Federal Circuit Wednesday affirmed a district court's denial of preliminary injunction to the plaintiffs (a patentee and its licensee with a right to enforce the patent) in a design patent case. The district court held there was a substantial question regarding the validity of the patent that was not shown to lack substantial merit, and therefore the plaintiffs were not likely to succeed on the merits...
Supreme Court grants certiorari in Bilski
Posted on June 01, 2009In an order today, the Supreme Court agreed to hear an appeal in Bilski v. Doll regarding the patentability of method claims. Back in October, the Federal Circuit decided In re Bilski, adopting the "machine-or-transformation" test as the exclusive test to determine whether a method is drawn to patentable subject matter...
Insufficient enforcement activity in district by patentee leads to dismissal of DJ action
Posted on May 20, 2009In a decision Monday, the Federal Circuit affirmed a district court's dismissal of a declaratory judgment action against a British patentee for lack of personal jurisdiction. The facts of the case are similar to the Avocent case decided a few months ago...
Patentee's commercial sales not relevant for personal jurisdiction in DJ action
Posted on May 20, 2009In a decision addressing personal jurisdiction in declaratory judgment actions, the Federal Circuit affirmed a district court's dismissal of an action against a foreign patent owner. The plaintiff sought a declaration that two patents owned by a Taiwanese company were invalid and not infringed in the plaintiff's home forum, the Northern District of Alabama...
When compounds in a class have divergent properties, positional isomer not obvious
Posted on May 18, 2009In a decision Wednesday, the Federal Circuit affirmed a district court's determination that the asserted claims in a pharmaceutical patent were not proven obvious. As is common in pharmaceutical cases, the defendant filed an ANDA asserting the patent covering the compound and its use was invalid, and in the ensuing infringement suit admitted its proposed generic drug met the claim limitations...
Marketing methods not patentable subject matter: no machine or transformation
Posted on April 21, 2009In a recent decision, the Federal Circuit applied the machine-or-transformation test from Bilski to affirm the rejection of all pending claims in a patent application by the Board of Patent Appeals and Interferences. The claims at issue related to methods of marketing products and "paradigms" for marketing software...
Pirate Bay operators guilty of criminal infringement in Sweden; no webcast of US file sharing case
Posted on April 17, 2009In the past day, there has been two interesting bits of news in the world of cases alleging copyright infringement by way of peer-to-peer file sharing.The first is that the individuals who operate and maintain the servers that host The Pirate Bay, the world's largest bittorrent tracker, were held to have committed criminal copyright infringement by a Swedish court...
Use of court-appointed expert not abuse of discretion, even when jury told of neutrality
Posted on April 16, 2009In a recent decision, the Federal Circuit held it was not an abuse of discretion for a district court to retain an independent expert pursuant to Rule 706 to assist the jury in understanding the technology relating to a complicated electrical patent...
Estoppel applies to all added limitations in claims, including when present in unamended claims
Posted on April 15, 2009In a decision Friday, the Federal Circuit affirmed a district court's grant of summary of no literal infringement and that prosecution history estoppel barred application of the doctrine of equivalents. During prosecution of the patent, a total of three limitations from two different dependent claims were added to the asserted claim in separate amendments, although only two of the limitations were addressed by the applicant and examiner...
Disclosure of compounds without link to claimed method fails to meet written description requirement
Posted on April 14, 2009In a recent decision, the Federal Circuit reversed a district court's denial of judgment as a matter of law after a jury determined the asserted claims of an invention were not invalid under the written description requirement. The court, however, affirmed the district court's determination of no inequitable conduct...
Second Circuit limits 1-800 Contacts; keyword advertising can be use in commerce
Posted on April 14, 2009In a recent decision, the Second Circuit reversed a district court's grant of a motion to dismiss in a trademark infringement case. The district court, relying on the Second Circuit's 2005 decision in 1-800 Contacts, Inc. v. WhenU.com, Inc...
Sales of products by party under unconditional covenant not to sue exhaust patent rights
Posted on April 13, 2009In a decision Wednesday, the Federal Circuit affirmed a district court's finding that a patentee's claims for patent infringement were barred by patent exhaustion in view of a settlement agreement between the patentee and a previous defendant in an infringement suit...
Nondisclosure of test results disclosed to testifying expert results in sanctions, but not dismissal
Posted on April 09, 2009In a recent decision, the Federal Circuit affirmed-in-part and reversed-in-part a district court's ruling sanctioning the plaintiffs and their attorney in a case both monetarily and by striking the plaintiffs' pleadings. The sanctionable conduct was the withholding of certain test results of the allegedly infringing product that arguably showed the product did not infringe...
Board's determination of priority, while "very close call," supported by substantial evidence
Posted on April 08, 2009In a recent decision, the Federal Circuit affirmed a decision of the Board of Patent Appeals and Interferences awarding priority of invention to the senior party in an interference proceeding. The Board held there was sufficient corroborating evidence of an inventor's testimony that the senior party appreciated its reduction to practice worked and met the key limitation of the interference count...
Kubin decided: Federal Circuit provides guidance for application of KSR in biotechnology
Posted on April 03, 2009Today the Federal Circuit decided the appeal in In re Kubin, a case dealing with how the Supreme Court's KSR decision will apply in the field of biotechnology. The decision is available here. We previously blogged about the BPAI decision here and the Federal Circuit's oral arguments here...
Patent Reform Act of 2009 back before Senate Judiciary Committee today to consider compromise
Posted on April 02, 2009Today at 10:00 Eastern time the Senate Judiciary Committee will hold an executive business meeting to discuss the Patent Reform Act of 2009. The committee will consider some proposed amendments that represent a compromise on several key issues that have been points of contention over the course of the past several years when patent reform has been on the legislative agenda...
Public use can't be experimental if not for purposes of the patent application
Posted on April 02, 2009In a decision last week, the Federal Circuit affirmed a district court's grant of summary judgment of invalidity of a patent and summary judgment to the defendant on the Plaintiff's false advertising claims. The defendant asserted the patent was invalid as obvious and by virtue of a prior public use...
Today's Federal Circuit practice tip: don't misrepresent the record or the law
Posted on March 31, 2009In a recent decision, the Federal Circuit awarded sanctions against the plaintiff-appellant for filing and pursuing a frivolous appeal against one of four defendant-appellees. The court observed the plaintiff-appellant failed to explain how the district court erred in its determination that this defendant did not infringe and also made misrepresentations of the record and law in its briefing on appeal...
Summary judgment of validity reversed; predictable variation of prior art obvious as a matter of law
Posted on March 30, 2009In a decision last month, the Federal Circuit reversed a district court's summary judgment to the plaintiff. The district court had awarded damages after granting summary judgment of "validity" and infringement. While the Federal Circuit agreed with the district court's construction of a disputed claim term, the court held the asserted claims were obvious as a matter of law...
Fourth Circuit: OBX geographically descriptive with no secondary meaning; noninfringement affirmed
Posted on March 30, 2009In a decision last month, the Fourth Circuit affirmed a district court's grant of summary judgment to the defendant in a trademark case. The mark at issue was OBX, which was an acronym coined to be short for the Outer Banks area of North Carolina...
Combining two embodiments in same prior art patent "does not require a leap of inventiveness"
Posted on March 30, 2009In a recent decision, the Federal Circuit reversed a district court's denial of judgment as a matter of law of obviousness. A jury held the claim at issue was not obvious, and the district court denied the defendant's post-verdict motion for judgment as a matter of law on the issue...
Ninth Circuit: Sufficient evidence of fraud to defeat summary judgment on Walker Process claim
Posted on March 27, 2009In a recent decision, the Ninth Circuit addressed the antitrust implications of so-called "reverse payments" between brand name and generic pharmaceutical companies. A health care provider brought suit against the two companies, alleging their agreement to delay the introduction of a generic pharmaceutical (which involved payment to the generic manufacturer of $4...
Federal Circuit grants mandamus ordering transfer of case from Eastern District of Texas
Posted on March 25, 2009In a recent decision, the Federal Circuit granted a petition for a writ of mandamus after a district court denied transfer of the case. The defendants/petitioners had been denied transfer of a patent case from the Eastern District of Texas (a venue perceived to be plaintiff-friendly in patent cases) to the Southern District of Ohio, where two of the three defendants were located...
Patent lawyer without expertise in relevant field cannot testify on infringement, invalidity
Posted on March 24, 2009The Federal Circuit recently reversed a district court's post-verdict grant of judgment as a matter of law of nonobviousness, applying the KSR obviousness standard and addressing the requirements for expert testimony for legal conclusions of obviousness...
Integrating infringing component into larger product does not escape contributory infringement
Posted on March 24, 2009In a recent decision, the Federal Circuit affirmed a district court's grant of summary judgment of obviousness, but vacated and remanded the summary judgment of no contributory or inducing infringement of two other patents in suit related to recordable optical disk drive technology...
Prior art disclosure of compound does not anticipate substantially separated enantiomer
Posted on March 23, 2009In a recent decision, the Federal Circuit affirmed a district court's determination, after a bench trial, that the asserted claim of a patent had not been proven anticipated or obvious. The district court held that while the prior art showed the chemical structure of the claimed compound, it did not describe the separation of the two enantiomers of the compound, nor did it describe the appropriate salt form to use in tableting the compound...
Ninth Circuit: Trademark claim against tribal corporation does not confer tribal court jurisdiction
Posted on March 23, 2009In a recent decision, the Ninth Circuit reversed a district court's grant of a motion to stay federal trademark claims against Indian tribal defendants pending a determination of jurisdiction by a tribal court. The trademark claims were for alleged passing off of cigarettes on the Internet, on the reservation of another tribe, and elsewhere...
Supreme Court of Canada tightens obviousness standard
Posted on March 23, 2009The Supreme Court of Canada recently made significant changes to its obviousness standard for patentability. The case addressed a dispute arising between the brand-name pharmaceutical manufacturer, Sanofi, and the Canadian generic manufacturer, Apotex...
Failure to disclose patents to SSO results in unenforceabilty against products using standard
Posted on March 23, 2009In a recent decision, the Federal Circuit affirmed-in-part a district court decision that a patentee had breached a duty to disclose relevant video-compression technology patents while participating in a joint video team standards-setting organization (SSO)...
Continuation rules appeal decided; continuation limit invalid; RCE limit and ESD requirements valid
Posted on March 20, 2009This morning the Federal Circuit released its opinion in Tafas v. Doll (formerly Tafas v. Dudas), the case addressing the validity of the USPTO's claim and continuation rules. The court holds all of the rules at issue are procedural rather than substantive, reversing the district court on this issue...
Reliance on initial expert for rebuttal sufficient to defeat summary judgment
Posted on March 20, 2009In a decision Tuesday, the Federal Circuit reversed grants of summary judgment in favor of both parties. The defendant was granted summary judgment of noninfringement, and the plaintiff (and counterclaim defendant) was granted summary judgment on the grounds of no marking under 35 U...
Explanation of prior art element in dependent claim insufficient to confer inventor status
Posted on March 09, 2009In a decision Thursday, the Federal Circuit reversed a summary judgment of dismissal for lack of standing by the District Court for the Eastern District of Michigan. The district court held that one of the defendant's employees was a coinventor of the patent-in-suit, and because he had not joined as a plaintiff, the plaintiffs did not have standing to sue...
Claim that infringing product was defendant's "innovation" cannot support section 43(a) claim
Posted on March 06, 2009In a decision last month, the Federal Circuit reversed a district court's denial of judgment as a matter of law from a jury award of $8,054,579 under § 43(a) of the Lanham Act. The plaintiff held a patent on a type of basketball, and the defendant (against whom summary judgment of infringement was granted) advertised their basketball was their "innovation...
Tenth Circuit: Insufficient proof of access dooms copyright infringement claim
Posted on March 04, 2009Covenant to sue that does not cover future infringement insufficient to defeat DJ jurisdiction
Posted on March 03, 2009United States did not waive immunity for copyright infringement claim brought by prisoner
Posted on February 05, 2009In a recent decision, the Federal Circuit held the Court of Federal Claims correctly dismissed a copyright infringement suit against the United States for lack of subject matter jurisdiction. The plaintiff is a federal prisoner who created various coyprightable works while in federal prison...
Scope of prior art teachings incorrect; summary judgment of obviousness reversed
Posted on February 05, 2009In a recent decision, the Federal Circuit reversed a district court's summary judgment of obviousness. The patent related to dessicant packages. The district court held a prior art reference taught all limitations of the claims with the exception of the type of absorbent material contained in the package, and that, under KSR, it would be obvious to one of ordinary skill in the art to substitute one material for the other...
Federal Circuit hears arguments in In re Kubin; what will be obvious in biotechnology?
Posted on January 11, 2009Thursday, the Federal Circuit held oral arguments in In re Kubin, a biotechnology case involving a patent over a gene sequence in humans, and specifically whether the claims were obvious. This was the first precedential decision by the Board of Patent Appeals and Interferences on the issue of obviousness in this field after KSR, so how the Federal Circuit comes out on the issue has the potential to greatly affect examination of biotechnology applications at the USPTO...
Grant of stay while preliminary injunction motion pending abuse of discretion
Posted on January 05, 2009In a recent decision, the Federal Circuit found that a district court's grant of a stay pending inter partes reexamination without considering the patentee's pending motion for a preliminary injunction was an abuse of discretion. The Federal Circuit held the grant of the stay effectively denied the preliminary injunction motion, thereby making the stay order appealable...
Existence of other licenses under patent does not preclude finding of irreparable harm
Posted on January 05, 2009In a decision Tuesday, the Federal Circuit affirmed a district court's grant of a permanent injunction. The district had previously granted a permanent injunction after a jury found willful infringement. In a previous appeal, the Federal Circuit affirmed the finding of willful infringement, but vacated the permanent injunction because the district court did not consider the four-factor test mandated by the Supreme Court's decision in eBay v...
Eleventh Circuit: Similarity of architectural plans depends largely on arrangement of features
Posted on January 02, 2009In a recent decision, the Eleventh Circuit affirmed a district court's grant of summary judgment of non-infringement in an architectural copyright case. The appellant had argued that the district court had effectively heightened the standard for infringement by performing an element-by-element comparison focusing on the differences between two floor plans...
On appeal, BPAI cannot group claims that do not share a common reason for rejection
Posted on January 02, 2009In a recent decision, the Federal Circuit affirmed a distirct court's vacatur of a decision of the Board of Patent Appeals and Interferences. In an appeal of rejections in twelve different applications involving approximately 2,400 claims, the Board only addressed the rejection of 21 "represntative" claims pursuant to 37 C...
Use of mechanism in claim without more may result in means-plus-function interpretation
Posted on December 18, 2008In a decision Monday, the a href=http://www.cafc.uscourts.gov/Federal Circuit/a affirmed a district court#39;s claim construction and related judgment of noninfringement. nbsp; The decision focused on the issue of claim construction in means plus function claims...
Todays prosecution practice tip: dont use the phrase the present invention in the specification
Posted on December 18, 2008pIn a decision last week, the a href=http://www.cafc.uscourts.gov/ title=United States Court of Appeals for the Federal CircuitFederal Circuit/a affirmed a district court#39;s claim construction and its related summary judgment of noninfringement.nbsp; The district court held the applicable claim term was narrower than the quot;lay understandingquot; of the term, based on the specification...
District courts order dismissing the action with prejudice held to be nonfinal due to counterclaims
Posted on December 17, 2008In a decision Thursday, the a href=http://www.cafc.uscourts.gov/ title=United States Court of Appeals for the Federal CircuitFederal Circuit/a affirmed a district court#39;s denial of a preliminary injunction, and held it did not have jurisdiction over the remainder of the appeal because there was no final judgment...
Federal Circuit invalidates Patent on Nobel-Prize winning invention after 50 years of prosecution
Posted on December 16, 2008In an appeal from the Board of Patent Appeals and Interferences, the Federal Circuit affirmed the Board's rejection of the claims based upon obviousness-type double patenting over previously-granted related patents. The technical aspects of the invention are complex, but are overshadowed by the procedural aspects of this reexamination...
Ninth Circuit: Pre-1923 published foreign works may still be copyrighted, depending on notice
Posted on December 15, 2008In a decision last week, the Ninth Circuit affirmed a district court's grant of summary judgment in favor of the plaintiff in a copyright case. The works at issue, sculptures by the famed artist Renior and coauthored by one of his assistants, Richard Guino, were created between 1913 and 1917, and first published in France no later than 1917...
Federal Circuit holds oral arguments in claim and continuation limit rules case
Posted on December 09, 2008On Friday, the Federal Circuit heard oral argument in the consolidated cases challenging the USPTO's new claim and continuation limit rules. You can download the audio of the arguments here. While it is, of course, too early to tell whether the Federal Circuit will affirm the permanent injunction against implementation of the rules, the tenor of the oral argument seems to indicate the court was skeptical of the USPTO's arguments...
Effective date of new BPAI appeal rules delayed pending completion of OMB review
Posted on December 09, 2008Gene Quinn at the PLI Patent Law Blog reports that the new BPAI appeal brief rules, which were scheduled to go into effect for all appeal briefs filed on or after tomorrow, December 10, will be delayed. The Office of Management and Budget is still considering the various submissions and comments regarding the rules, including comments regarding the burden on practitioners to comply with the rules...
Substantial question regarding validity insufficient to defeat likelihood of success?
Posted on December 09, 2008In a recent decision, the Federal Circuit affirmed a district court's grant of a preliminary injunction concerning the manufacture of an extended release formulation of an antibiotic. In a lengthy opinion, the Federal Circuit applied the Supreme Court's obvious-to-try logic from KSR to pharmaceutical patents...
Ninth Circuit: Copyright owner's ambiguous reservation of rights clarified with extrinsic evidence
Posted on December 08, 2008In a recent decision, the Ninth Circuit reversed a district court's grant of summary judgment that a copyright holder did not have standing to sue for copyright, trademark, unfair competition, and related declaratory judgment claims. The case involved the film Gone in 60 Seconds, produced and directed in 1974 by H...
USPTO releases 2008 annual report
Posted on November 17, 2008The USPTO today released its annual report for fiscal year 2008 (press release here), which ended September 30. Below is a comparison of a few key statistics with the 2007 stats: 2007 2008 change Average months to first action (patent) 25...
USPTO to implement annual maintenance fee for patent practitioners
Posted on November 17, 2008In today's Federal Register, the USPTO has indicated its implementation of a final rule to begin collecting annual "maintenance fees" from practitioners registered to practice before the USPTO. The notice states the fees "will recover the estimated average cost to the Office for the roster maintenance process, including the costs of operating the disciplinary system...
Federal Circuit clarifies burdens of proof when priority to earlier application is contested
Posted on November 11, 2008In a recent decision, the Federal Circuit affirmed a district court's determination that the asserted claims of a patent were not entitled to the effective filing date of the earliest application in a chain of four applications, and that as a result the claims were anticipated by intervening prior art...
Ninth Circuit: Trademark claim over use in video game stripped away by First Amendment
Posted on November 07, 2008In a decision Wednesday, the Ninth Circuit affirmed a district court's grant of summary judgment that the producer of Grand Theft Auto: San Andreas had a First Amendment defense against a claim of trademark infringement. The plaintiff owns a strip club known as the "Play Pen" on the eastern edge of downtown Los Angeles...
Second Circuit: Copyright license of indeterminate term improperly read to be perpetual
Posted on November 07, 2008In this appeal from the United States District Court for the Northern District of New York, the Second Circuit reversed the dismissal of a copyright claim based on ambiguity in a contract, but affirmed dismissal of the antitrust claims because the plaintiff's proposed market definition was not plausible...
Federal Circuit declines to consider constitutionality of BPAI judge appointments, affirms rejection
Posted on November 06, 2008In a decision this week, the Federal Circuit decided a case involving both obviousness and the Appointments Clause relating to allegedly unconstitutional appointment of members of the Board of Patent Appeals and Interferences. The court determined that appellants failed to timely raise the issue of the constitutionality of the Appointments Clause by not presenting it to the Board, and therefore waived the issue on appeal...
Disclosure of single antibody insufficient to describe genus of related antibodies
Posted on November 06, 2008In a recent decision, the Federal Circuit affirmed the decision of the Board of Patent Appeals and Interferences sustaining in part the examiner's final rejection of the broadest claim in an application, directed to methods of treating neurofibrosarcoma using monoclonal antibodies...
Bilski: No machine or transformation, no patentable method, at least for now
Posted on November 03, 2008As we reported Thursday, the Federal Circuit has decided In re Bilski, an en banc decision regarding the scope of patentable subject matter. Specifically, the court addressed what is necessary for a method to fall within the scope of patentable subject matter under § 101...
Federal Circuit reaffirms anticipatory reference must have all elements as arranged in the claim
Posted on October 31, 2008In a recent decision, the Federal Circuit affirmed a district court's finding of indefiniteness but reversed the district court's holding of anticipation of other claims. The district court held the means-plus-function limitations did not have corresponding structure disclosed in the specification, rendering them indefinite, and that the combination of two examples in a prior art publication anticipated the remaining asserted claims...
Bilski decided
Posted on October 30, 2008The decision is available here. It adopts the "machine-or-transformation" test for patentable subject matter. As stated by the majority:The machine-or-transformation test is a two-branched inquiry; an applicant may show that a process claim satisfies § 101 either by showing that his claim is tied to a particular machine, or by showing that his claim transforms an article...
BPAI: 102(e) art can be effective prior art as of provisional priority date
Posted on October 29, 2008In a decision recently designated precedential, the Board of Patent Appeals and Interferences considered the question of whether a reference that is prior art under § 102(e) is prior art as of its provisional priority date or the actual filing date of the reference...
Remittitur without new trial requires legal error, not error as a matter of law
Posted on October 29, 2008In a recent decision, the Federal Circuit reversed a district court's reduction of the jury's damages award, remanding the case for a new trial on damages, and affirmed the jury's verdict of willful infringement and the district court's award of attorney fees under § 285...
Jury's pre-KSR nonobviousness verdict reversed post-KSR
Posted on October 29, 2008In a recent decision, the Federal Circuit affirmed a district court's grant of a judgment as a matter of law that the asserted claims of a patent were obvious after a jury verdict of no obviousness. KSR was decided after the jury's verdict but before the district court ruled on the defendant's motion for judgment as a matter of law...
If no anticompetitive effect outside exclusionary zone of patent, reverse payment OK in ANDA cases
Posted on October 29, 2008In a recent decision, the Federal Circuit upheld the district court's grant of summary judgment in an antitrust case. At issue was whether reverse payments (from the patentee to the accused infringer) in the context of the Hatch-Waxman Act violated antitrust laws...
Tenth anniversary of the Digital Millenium Copyright Act
Posted on October 28, 2008On October 28, 1998, President Clinton signed the Digital Millenium Copyright Act into law. The Act is probably best known for two of its provisions: (1) the anti-cirumvention provsion, which prohibits circumventing a "technological measure that effectively controls access to" a copyrighted work, and (2) the online "safe harbor" provision, which generally insulates parties that host material online from liability for infringement provided they follow the prescribed notice and takedown procedure...
ITC cannot enter limited exclusion order against non-parties
Posted on October 21, 2008In a decision last week, the Federal Circuit vacated a limited exclusion order issued by the International Trade Commission in the most recent dispute between Qualcomm and Broadcom. The case involved alleged infringement of one of Broadcom's patents relating to chips for wireless communication, specifically directed toward power saving technology...
High materiality without explanation for nondisclosure leads to inference of intent to deceive
Posted on October 17, 2008In a recent decision, the Federal Circuit affirmed a district court's finding of inequitable conduct for one patent but reversed on a second, affirmed a finding of no invalidity of the second patent, but vacated the finding of infringement after modifying the district court's claim construction of a claim term...
Eleventh Circuit: Website in Tennessee using Floridian's trademark sufficient for jurisdiction
Posted on October 17, 2008In a decision last week, the Eleventh Circuit reversed a district court's dismissal of a trademark infringement case for lack of personal jurisdiction. The district court held that the allegedly infringing conduct, operating a website, was insufficient to warrant jurisdiction in the plaintiff's home state of Florida...
Anticipation no longer the epitome of obviousness? Claims can be anticipated but nonobvious
Posted on October 16, 2008The Federal Circuit recently affirmed a district court's finding of non-willful infringement for one product, reversed its claim construction and related finding of noninfringement of a second product, and vacated its judgment as a matter of law on the issue of anticipation...
Inducement not shown when accused product can work in an infringing way but doesn't have to
Posted on October 07, 2008In a recent decision, the Federal Circuit affirmed the International Trade Commission's finding of noninfringement with respect to one patent but reversed and remanded on another. At issue was whether the defendant had imported chipsets that infringed five of the plaintiff's patents in violation of 19 U...
General disclosure in prior art not enabling for specific pharmaceutical compound's use in treatment
Posted on October 07, 2008In a decision last week, the Federal Circuit affirmed a district court's holding that a prior art patent was not enabling and thus did not anticipate the patent-in-suit. Applying the In re Wands factors, the district court held undue experimentation would be required in order to produce the claimed invention based on the prior art's disclosure...
Advice of counsel evidence still relevant to intent to induce infringement
Posted on October 06, 2008In a recent decision, the Federal Circuit affirmed a jury's finding of infringement of two patents and the related injunction, but reversed the district court's claim construction and the concomitant finding of infringement regarding a third patent...
Expert's internally inconsistent testimony could not support jury's infringement verdict
Posted on October 06, 2008In a decision last week, the Federal Circuit reversed a district court's denial of judgment as a matter of law after a jury returned a verdict of infringement. The Federal Circuit held the jury's verdict was not supported by substantial evidence, and that the plaintiffs' expert's opinions contradicted his factual testimony, and was thus incapable of supporting the jury's verdict of infringement...
Inventor testimony regarding intent during patent prosecution irrelevant to claim construction
Posted on September 29, 2008In a recent decision, the Federal Circuit vacated a stipulated judgment of noninfringement on claim construction grounds. The construction issue dealt with the significance of a limitation that applied to an "at least one" element. Specifically, the relevant claim required "at least one condylar element," where "the condylar element" had certain features...
USPTO announces trademark consistency pilot program
Posted on September 29, 2008In a notice today, the USPTO announced a new trademark consistency initiative. Under the new initiative, applicants who believe a substantive or procedural issue has been addressed in a "significantly different manner" in two applications may raise the issue for consistency review...
Third Circuit: False endorsement claims use modified likelihood of confusion analysis
Posted on September 29, 2008In a recent decision, the Third Circuit vacated a district court's grant of summary judgment to the plaintiff in a § 43(a) false endorsement case, but affirmed the plaintiff's summary judgment win as to the state law right of publicity claims...
Federal Circuit affirms district court's decision setting aside $1.5 billion infringement verdict
Posted on September 26, 2008In a decision yesterday, the Federal Circuit affirmed a district court's grant of judgment as a matter of law based on lack of standing for one patent and non-infringement of a second patent. A jury awarded $1,538,056,702 in damages for infringement, but, as a result of the JMOL, the district court set aside the damages award...
Second Circuit: MLB collective trademark licensing does not violate Sherman Act
Posted on September 26, 2008In a recent decision, the Second Circuit affirmed a district court's summary judgment to the defendant in an antitrust case regarding trademark licensing. The case involved the collective licensing setup of Major League Baseball Properties ("MLBP")...
Second Circuit: If you want a court to order the USPTO, ask in your pleadings, not after you win
Posted on September 25, 2008In a recent decision, the Second Circuit affirmed a district court's decision in a trademark case not to enter an order pursuant to 15 U.S.C. § 1119. § 1119 permits a court to enter an order regarding registrability and cancellation of marks at the USPTO...
Ninth Circuit: Absent evidence of intent to the contrary, custom software purchaser retains license
Posted on September 25, 2008In a recent decision, the Ninth Circuit affirmed a district court's decision that a software developer's delivery of customized software includes a grant of an unlimited, non-exclusive, implied license to use, modify, and retain the source code of the programs in the absence of written agreements to the contrary...
When factual inquiries underlying obviousness determination disputed, summary judgment improper
Posted on September 25, 2008In a decision Friday, the Federal Circuit affirmed a district court's summary judgment of no anticipation, no invalidity for failure to comply with the written description requirement, and infringement, but reversed the district court's summary judgment of no invalidity based on obviousness...
Patent exhaustion does not create a cuse of action; dismissal affirmed
Posted on September 24, 2008In a decision last week, the Federal Circuit affirmed a district court's decision dismissing a case for lack of subject matter jurisdiction. The plaintiff brought suit when it believed the patent holder had fraudulently concealed a second licensee of the same patents...
Eleventh Circuit: No DJ jurisdiction in copyright case when copyright unregistered
Posted on September 24, 2008In a recent decision, the Eleventh Circuit vacated a district court's grant of summary judgment in a copyright infringement declaratory judgment action. The court determined that the district court was without subject matter jurisdiction to entertain the alleged infringer's declaratory judgment action...
Assertions of infringment at trade show sufficient to confer personal jurisdiction in DJ action
Posted on September 24, 2008In a recent decision, the Federal Circuit reversed a district court's order dismissing a case for lack of personal jurisdiction. The plaintiff brought a declaratory judgment action against the defendant patent holder in Washington. After sending a letter accusing the plaintiff of infringing two patents, the patent holder attempted to get the plaintiff's display removed from a trade show in Seattle and told potential customers the plaintiff had copied their patent...
Improper revival cannot be raised as grounds for invalidity in an infringement action
Posted on September 23, 2008In a decision yesterday, the Federal Circuit reversed a district court's summary judgment of invalidity. The district court held that the application that led to the patent-in-suit was abandoned, and the USPTO improperly revived it, rendering the patent invalid...
Seventh Circuit: Several likelihood of confusion factors favored plaintiff, no summary judgment
Posted on September 22, 2008The Seventh Circuit recently reversed a district court's summary judgment for the defendant in a trademark infringement case. The district court held no reasonable fact finder could find the marks likely to be confused.On appeal, the Seventh Circuit reminded us that the test for likelihood of confusion is not simply whether consumers will confuse two marks, but whether upon viewing the junior mark a consumer will be likely to associate the product or service with the source of the products or services of the senior mark...
En banc Federal Circuit scraps point of novelty test for design patent infringement
Posted on September 22, 2008In an en banc decision this morning, the Federal Circuit has unanimously held that the "point of novelty" test for design patent infringement should no longer be applied. As stated by the court:[W]e hold that the "point of novelty" test should no longer be used in the analysis of a claim of design patent infringement...
Seventh Circuit reverses trademark damages award in default judgment because wrong standard applied
Posted on September 22, 2008The Seventh Circuit recently reversed the amount of damages in a district court's entry of default judgment in a trademark infringement dispute. At issue was whether the Plaintiff was entitled to additional relief on the grounds that the district court applied the wrong standard to its claim for an accounting of profits...
Disclosure of gene from one bacterial source cannot support claims to gene from any bacterial source
Posted on September 22, 2008In a recent decision, the Federal Circuit affirmed a district court's grant of summary judgment of non-infringement and invalidity of various claims of three patents. The district court held no genuine issue of fact existed regarding noninfringement or invalidity under the written description requirement...
Demonstration of product at trade show didn't meet all claim limitations; no personal jurisdiction
Posted on September 17, 2008In a decision Tuesday, the Federal Circuit affirmed the dismissal of a patent infringement claim for lack of personal jurisdiction. The alleged infringer showed the allegedly infringing product at a trade show in DC, which led the plaintiff to file suit there...
Prior court decision of no invalidity based on prior art reference doesn't bar reexamination
Posted on September 17, 2008The Federal Circuit recently construed the scope of the revised reexamination statute, 35 U.S.C. § 303, specifically what is required for a "substantial new question of patentability." In this case, the relevant reference was cited during the initial examination of the application that led to the patent under reexamination, but as a supporting reference...
Patent claims not at issue at trial can't be found invalid, even if mentioned in complaint
Posted on September 15, 2008In a recent decision, the Federal Circuit reversed much of a district court's finding of willful infringement of a plaintiff's patents, tortious interference with the plaintiff's business relationships, and invalidity of the defendant's patents...
Covenant not to sue removes jurisdiction despite lingering Hatch-Waxman exclusivity issues
Posted on September 15, 2008In a recent decision, the Federal Circuit affirmed a district court's decision involving declaratory judgment jurisdiction in the context of abbreviated new drug applications (ANDAs) and a related covenant-not-to-sue involving one patent at issue...
Tenth Circuit: District court's internally inconsistent findings lead to remand
Posted on September 12, 2008In a decision last week, the Tenth Circuit reversed a district court's ruling of no trademark infringement. The district court, applying the Tenth Circuit's six likelihood of confusion factors, initially stated that three factors favored the plaintiffs, two were neutral, and one favored the defendants, but in its conclusion, stated that only one factor favored the plaintiff, with the remainder of the factors neutral or favoring the defendants...
Ninth Circuit: First sale doctrine doesn't apply to goods purchased abroad and imported to US
Posted on September 10, 2008In a decision last week, the Ninth Circuit reversed a district court's grant of summary judgment to a copyright defendant on the basis of the "first sale" doctrine, codified at 17 U.S.C. § 109(a). The defendant obtained the products bearing the copyright from a third party who legally purchased them outside the United States...
No evidence of intent to deceive, no inequitable conduct
Posted on September 10, 2008In a recent decision, the Federal Circuit reversed a district court's grant of summary judgment of inequitable conduct against the patentee. At issue was whether the patentee's failure to disclose a letter describing an aspect of the prior art constituted inequitable conduct...
First Circuit: Don't expect to win on appeal if you admit 7 of 8 likelihood of confusion factors
Posted on September 02, 2008In a decision Friday, the First Circuit affirmed a district court's summary judgment of trademark infringement and an associated award of the defendant's profits and attorney fees to the plaintiff. The defendant used the plaintiff's registered marks in both the metatags of its website as well as in white text on a white background in the body of the site in an effort to cause consumers searching for the plaintiff's marks on an internet search engine to be more likely to go to the defendant's website instead...
Clinical trials necessary to determine invention works for intended purpose
Posted on August 27, 2008In a recent decision, the Federal Circuit affirmed a district court's ruling in favor of AstraZeneca, holding that the generic drug manufacturers Apotex and Impax Laboratories infringed patents for the popular heartburn medication Prilosec® (generic form omeprazole) in filing abbreviated new drug applications (ANDAs)...
Federal Circuit: The difference between substantial cure and full cure is not insubstantial
Posted on August 22, 2008In a decision yesterday, the Federal Circuit affirmed a grant of summary judgment of anticipation and obviousness. While the court disagreed with the district court's conclusion that the prior art expressly anticipated the asserted claims as a matter of law, the court did conclude that the prior art inherently disclosed the relevant limitations as a matter of law...
Federal Circuit affirms USPTO's interpretation of inter partes reexamination statute
Posted on August 22, 2008In a decision Tuesday, the Federal Circuit affirmed a district court's holding that the USPTO's interpretation of the inter partes reexamination procedure was correct, and therefore that all patent applications (other than reissue applications) filed after November 29, 1999 are eligible for inter partes reexamination, even if priority is claimed to an application filed before that date...
No case or controversy when patentee doesn't even know of potentially infringing product
Posted on August 21, 2008In a decision last week, the Federal Circuit upheld a district court's decision that Article III jurisdiction did not exist in a case where a potential infringer was seeking a declaration of noninfringement. The district court granted a motion to dismiss the under the Federal Circuit's pre-MedImmune reasonable apprehension of suit test, noting that there was no reasonable apprehension of suit...
Efforts to terminate infringement after notice of patent doesn't avoid damages
Posted on August 21, 2008In a decision Tuesday, the Federal Circuit vacated a district court's grant of summary judgment of non-infringement of a patent on the basis of claim construction. Specifically, the district court had improperly imported limitations from nonasserted claims into the asserted claims, resulting in an unduly narrow claim construction...
Today's lesson for litigators: make sure you present all your arguments to the district court
Posted on August 21, 2008In a decision Tuesday, the Federal Circuit affirmed a district court's holding that two patents were invalid under the on-sale bar of 35 U.S.C. § 102(b). The inventor filed a declaration during prosecution that the invention was reduced to practice before the critical date of the patents, and thereafter sold the claimed method, also before the critical date...
Irreparable harm to exclusive licensee cannot support injunction; willfulness vacated post-Seagate
Posted on August 20, 2008In a decision Monday, the Federal Circuit addressed a range of issues and ultimately affirmed a district court's denial of injunctive relief and, in light of the intervening Seagate decision, vacated and remanded the case for reconsideration regarding willfulness...
Roundup of recent USPTO federal register notices: patent agent practice, fees, new rules and more
Posted on August 17, 2008It's been a busy few weeks in rulemaking at the USPTO, with several notices recently posted that deserve attention. The notices relate to increases in fees for Fiscal Year 2009 because of the consumer price index, increases for PCT fees (and a correction), the scope of permissible practice of patent agents and changes to disciplinary procedures, the effective date of the currently-enjoined rules on applications with patentably indistinct claims, and the scope of foreign filing licenses, specifically as it relates to outsourcing patent application preparation outside the United States...
Federal Circuit: Breach of open source license conditions can lead to copyright infringement
Posted on August 16, 2008In a recent decision, the Federal Circuit addressed some of the copyright issues involved with the open source movement. Often open source software is distributed under a so-called copyleft license, which permits others to use the work, subject to certain restrictions...
BPAI: when prior art teaches away, expectation of success cannot support obviousness rejection
Posted on August 16, 2008In a recent precedential decision by the Board of Patent Appeals and Interferences, the board reversed an Examiner's rejections based on double patenting, anticipation, and obviousness. The Board held the Examiner inappropriately rejected the claims for double patenting because there was insufficient evidence to show the compositions claimed in the prior art possessed the viscosity level claimed in the current application or that they would be obvious variants...
Second Circuit: Remote DVR system does not infringe content providers' copyrights
Posted on August 13, 2008In a decision last week, the Second Circuit reversed a lower court's grant of summary judgment holding that the defendant's remote-storage DVR system violated the plaintiffs' rights of reproduction and public performance. The Plaintiffs were various content providers, and the defendant was a cable company...
Third Circuit: Evidence of secondary meaning must correspond to the asserted mark
Posted on August 08, 2008In a decision Wednesday, the Third Circuit affirmed a district court's grant of summary judgment in a trademark case, finding the asserted mark not protectible as a matter of law.The district court granted summary judgment that the mark was generic...
FDA research safe harbor does not extend to devices not subject to FDA approval
Posted on August 07, 2008In a decision Tuesday, the Federal Circuit affirmed a district court's holding of patent infringement on the basis that the "safe harbor" provision of the Hatch-Waxman Act, § 271(e)(1), did not insulate the accused activity from infringement and that the district court did not err in granting a judgment as a matter of law in favor the plaintiff on infringement and the defendant's invalidity defenses...
When exclusion order based on multiple patents, failure to appeal under each may render appeal moot
Posted on August 06, 2008In a decision last week, the Federal Circuit affirmed the United States International Trade Commission's finding of infringement and validity. The claims were brought under three patents that all claimed priority to a common parent application, and thus would ordinarily all expire on the same day...
USPTO proposes limitations on fax submissions and font size
Posted on August 06, 2008In a Federal Register notice published today, the USPTO is proposing to limit the types of documents that may be submitted to the Office via fax, as well as mandating a larger font size in documents submitted to the Office.With regard to the fax limitation, the revised rules would prohibit most types of submissions from being sent to the USPTO via fax...
Finding of inequitable conduct without considering materiality vacated
Posted on August 06, 2008In a decision on Friday, the Federal Circuit reversed a district court's summary judgment of invalidity and noninfringement and subsequent finding of inequitable conduct. The court also vacated the district court's exceptional case finding and the associated award of attorney's fees...
Patry copyright blog is no more
Posted on August 03, 2008It's a sad day in the blogosphere, as Bill Patry, author of Patry on Copyright and the Patry Copyright Blog, has announced he is shutting down his blog. We've linked to Professor Patry's commentary on copyright law on many occasions, and his additional insight into copyright issues will be missed...
Arguments made distinguishing prior art spell doom for broader claim construction
Posted on July 27, 2008In a decision last week, the Federal Circuit affirmed a district court's claim construction and related grant of summary judgment of non-infringement.The court affirmed the construction in part because the plaintiff's interpretation of the claim elements was at odds with the plaintiff's stance during the prosecution history...
Federal Circuit addresses scope of immunity waiver for copyright and DMCA claims
Posted on July 27, 2008In a decision Friday, the Federal Circuit affirmed a decision from the United States Court of Federal Claims dismissing a copyright holder's claims for lack of jurisdiction on the ground that the Government had not waived sovereign immunity. The suit arose from alleged copyright infringement and an alleged violation of the Digital Millennium Copyright Act of 1998 (DMCA)...
Federal Circuit provides more post-KSR guidance for obviousness for chemical compounds
Posted on July 24, 2008In a decision Monday, the Federal Circuit affirmed a district court's decision finding asserted claims of a patent valid and enforceable. Specifically, the court affirmed a finding that the asserted claims were nonobvious as a matter of law, and that the evidence did not support a finding of inequitable conduct...
Tenth Circuit: MedImmune declaratory judgment jurisdiction test applies in trademark cases
Posted on July 18, 2008In a decision last week, the Tenth Circuit reversed a district court's decision that Article III jurisdiction did not exist over a declaratory judgment action in a trademark case. At issue was whether a triable case or controversy within the meaning of Article III existed in declaratory judgment action regarding trademark infringement...
Purported inventor who waited eight years to file suit could not overcome presumption of laches
Posted on July 17, 2008In a decision yesterday, the Federal Circuit upheld a district court's grant of summary judgment due to laches and applicable state statute of limitations in an inventorship case. The plaintiff, having waited more than eight years after finding out about the patents to file suit, claimed that an intervening reexamination should have reset the time for determining laches and that the defendant's "unclean hands" in failing to include the plaintiff as an inventor precluded the application of laches...
Adaptation of prior art bidding system to the web obvious under KSR and Leapfrog
Posted on July 17, 2008In a decision Monday, the Federal Circuit reversed a district court's permanent injunction and denial of judgment as a matter of law in a patent infringement case. A jury determined the asserted claims of the patent were not obvious and that the defendant willfully infringed, and awarded $38...
Consent judgment with no explanation of how claim construction affected noninfringement vacated
Posted on July 17, 2008In a decision Tuesday, the Federal Circuit vacated a consent judgment entered by a district court and remanded the case for clarification. The district court entered a consent judgment, stipulated by the parties, stating the defendants' products did not infringe under the district court's claim construction of several terms, but that the plaintiff could still appeal the claim construction...
Ninth Circuit: Termination of rights allows Lassie to come home to author's heir
Posted on July 17, 2008In a decision last week, the Ninth Circuit reversed a district court's denial of summary judgment in a copyright case. The district court held the heir of an author had, by agreement, "given away" the termination right granted by 17 U...
Eleventh Circuit: Laches presumed not to apply in copyright case filed during limitations period
Posted on July 17, 2008In a decision last week, the Eleventh Circuit affirmed in part and vacated in part a district court decision granting summary judgment in a copyright infringement action. The central disagreement between the parties was over the scope of copyright protection in a book about sales techniques...
Seventh Circuit: Prevailing defendants should have greater presumption of fees in copyright cases
Posted on July 11, 2008In a decision Wednesday, the Seventh Circuit reversed a district court's denial of attorney fees to a prevailing defendant in a copyright case. The district court found that, as a matter of law, no copyright infringement occurred, but declined to award attorney's fees...
Reverse doctrine of equivalents still a losing argument at the Federal Circuit
Posted on July 11, 2008In a decision Wednesday, the Federal Circuit affirmed a district court's finding of patent validity and patent infringement. The Federal Circuit found no error in the district court's holding that the reverse doctrine of equivalents was inapplicable and that claim preclusion prohibited the defendant from raising other validity challenges...
En banc Eleventh Circuit reaffirms digital compilation of magazine archives a privileged revision
Posted on July 09, 2008In a decision last week, the Eleventh Circuit en banc addressed the application of New York Times v. Tasini in the context of a comprehensive CD archive encompassing all National Geographic magazines from 1888 to 1996, called the Complete National Geographic...
First Circuit: Discovery rule not triggered in copyright case by parties' acrimonious split
Posted on July 07, 2008In a recent decision, the First Circuit reversed a district court's decision dismissing a copyright infringement claim on statute of limitation grounds. The main issue was whether the statute of limitations for copyright infringement claims barred an architectural firm's action against a former client...
U.S. Copyright Office begins online registration system today
Posted on July 01, 2008Today the U.S. Copyright Office will officially begin accepting registrations for some works online. The works that may be registered online are "basic claims" for literary, visual arts, and performing arts works (including motion pictures, sound recordings and single serials)...
Failure to consider evidence of good faith leads to reversal of inequitable conduct finding
Posted on June 25, 2008In a decision last week, the Federal Circuit affirmed a district court's finding of no infringement and invalidity for obviousness, and reversed the district court's finding of unenforceability due to inequitable conduct.The Federal Circuit, citing KSR, noted that an obviousness analysis can take account the inferences and creative steps that a person of ordinary skill in the art would employ, and held that there was a only small logical gap between the prior art and the claim at issue that could be closed by a person of ordinary skill in the art pursuing known options within his or her technical grasp and therefore the claim was obvious...
Ninth Circuit: Heirs of "Pink Panther" coauthor do not retain interest in copyright in the films
Posted on June 25, 2008In a decision last week, the Ninth Circuit affirmed the district court's grant of summary judgment in a copyright case, holding that a coauthor of a story treatment is not necessarily a coauthor of a motion picture produced based on that treatment, and the factors applied to determine coauthorship led to the conclusion that the coauthor of the treatment was not a coauthor of the motion picture...
First Circuit: District court's determination that "duck tour" is nongeneric doesn't hold water
Posted on June 24, 2008In a lengthy decision last week, the First Circuit held a district court erred in finding the term "duck tour" nongeneric in the context of sightseeing tours on amphibious vehicles. The district court, based largely on the nongenericness of this aspect of the parties' marks, found the plaintiff was likely to succeed in its infringement claims, and entered a preliminary injunction...
Claim construction and finding of noninfringement affirmed
Posted on June 20, 2008In a decision Wednesday, the Federal Circuit affirmed a district court's claim construction and grant of summary judgment of non-infringement. The patent holder's proposed claim interpretation relied heavily on means-plus-function language and an embodiment in the specification not covered by the claim construction...
Tenth Circuit: Digital model of car not separately copyrightable because no originality
Posted on June 19, 2008In a decision this week, the Tenth Circuit affirmed a district court's grant of summary judgment in favor of the defendants in a copyright case, finding a digital work lacking sufficient originality to warrant copyright protection. The works at issue were three-dimensional computer models of cars for use in advertisements...
Ninth Circuit: Patent law terms in employment agreement should be given patent law definitions
Posted on June 19, 2008In a recent decision, the Ninth Circuit held a district court's jury instructions regarding construction of the patent ownership provisions of an employment agreement erred in applying contract law rather than patent law. The court determined that jury instructions defining the terms "conceive," "reduce to practice," and "Work of Dr...
Litigation misconduct and inequitable conduct lead to exceptional case, fees for defendant
Posted on June 18, 2008In a decision yesterday, the Federal Circuit affirmed an award of attorneys' fees for a prevailing defendant in an infringement case. The district court held the case was exceptional under § 285 because the patent holder had engaged in inequitable conduct (a finding previously affirmed), asserted frivolous claims, and engaged in litigation misconduct...
Three sentences insufficient to explain why a case is exceptional
Posted on June 17, 2008In a decision yesterday, the Federal Circuit vacated an award of attorney fees under § 285. The district court only provided a three-sentence explanation as to why the case was exceptional. The Federal Circuit found this insufficient, as there was no explanation of the facts underlying the findings made by the court...
Eleventh Circuit: Unsolicited proposals insufficient to show intent to resume use of trademark
Posted on June 16, 2008In a decision Friday, the Eleventh Circuit affirmed a district court's grant of summary judgment in favor of the defendant, finding the plaintiff had abandoned its trademarks. Although the complaint consisted of both federal and state common law claims, the analysis ultimately came down to whether a valid Lanham Act claim existed, as the remaining claims were based on the alleged § 1125 claims...
Ninth Circuit: No statutory damages for continuing infringement that began before registration
Posted on June 16, 2008In a decision last week, the Ninth Circuit reversed a district court's award of statutory damages for copyright infringement and affirmed the district court's default judgment award of attorney's fees for trademark infringement. The plaintiff's copyright registration had an effective date of approximately one month after the first act of infringement, and nearly two years after first publication...
USPTO publishes two new proposed rules packages for trademark cases
Posted on June 12, 2008Today's Federal Register brings with it two sets of proposed rule changes from the USPTO, both dealing with prosecution of trademark cases.The first, entitled "Changes in Requirements for Signature of Documents, Recognition of Representatives, and Establishing and Changing the Correspondence Address in Trademark Cases," addresses the requirements for powers of attorney and similar documents in trademark applications, and also requirements for applicants not represented by an attorney...
Legal owner responsible for timely payment of maintenance fees, equitable owner out of luck
Posted on June 11, 2008In a decision yesterday, the Federal Circuit affirmed a district court's grant of summary judgment upholding the USPTO's denial of a request to reinstate a patent for failure to pay maintenance fees. The patentee had assigned his invention to his employer, who had subsequently allowed the patent to expire due to non-payment of the maintenance fee...
Patent litigation by the numbers
Posted on June 11, 2008PricewaterhouseCoopers recently published its annual litigation study entitled 2008 Patent Litigation Study: Damages awards, success rates and time-to-trial. The study examined a wide range of variables pertaining to patent litigation from 1995 to 2007...
Roundup of media coverage of Quanta v. LG decision
Posted on June 10, 2008The media and legal blogs have begun to weigh in on yesterday's decision in Quanta Computer, Inc. v. LG Electronics, Inc. , holding method claims can be exhausted by the sale of a product substantially embodying the claim. Click below for a sampling of the coverage from various sources...
USPTO publishes new rules for ex parte appeals before the BPAI
Posted on June 10, 2008In today's Federal Register, the USPTO has posted revised rules of practice for ex parte appeals before the Board of Patent Appeals and Interferences. These are the final version of the rules initially proposed nearly a year ago. The rules were hinted at in a press release issued by the USPTO yesterday, and now we have the full details of the new rules...
Quanta v. LG: Method claims can be exhausted; harder to assert infringement later in distribution
Posted on June 09, 2008The Supreme Court today decided Quanta Computer, Inc. v. LG Electronics, Inc., dealing with the doctrine of patent exhaustion (also called the first sale doctrine). In a nutshell, the Court made it more difficult for patent holders to maintain a claim for infringement down the distribution chain of a product...
Today's opinion in Quanta v. LG now available
Posted on June 09, 2008The opinion of the Court in Quanta Computer, Inc. v. LG Electronics, Inc. is now available here.Thanks to SCOTUSBlog for making a copy of the decision available online.Update (10:45): The closing paragraph of the decision is a good, concise summary:The authorized sale of an article that substantially embodies a patent exhausts the patent holder’s rights and prevents the patent holder from invoking patent law to control postsale use of the article...
Suprme Court provides unanimous decision in Quanta v. LG: Federal Circuit reversed
Posted on June 09, 2008This morning the Supreme Court decided Quanta v. LG, reversing the Federal Circuit's decision. We'll post a link to the decision (written by Justice Thomas) as soon as it's available.
Partially does not include totally, judgment of noninfringement affirmed
Posted on June 05, 2008In a decision yesterday, the Federal Circuit affirmed a district court's claim construction and its related judgment of noninfringement. The court declined to import a meaning which went against the plain meaning of the disputed term, and stated if the patentee had intended such a meaning, it should have done so explicitly...
No lost profits when patent owned by parent but practiced by subsidiary
Posted on June 04, 2008In a decision this week, the Federal Circuit affirmed a district court's grant of summary judgment in the damages phase of a patent infringement case denying recovery for lost profits. The patentee's wholly-owned subsidiary actually practiced the claimed invention, but the subsidiary paid a standard license royalty to the patentee for use of the invention, and the subsidiary's profits did not "flow inexorably" to the patentee...
Claim construction from different case against different defendant applies in subsequent case
Posted on June 03, 2008In a decision yesterday, the Federal Circuit affirmed a district court's construction of a patent claim in an infringement case. However, the court vacated the district court's grant of summary judgment of noninfringement and remanded. The Federal Circuit held that a prior interpretation of the claim in a suit against a different alleged infringer required the claim construction adopted by the district court...
USPTO proposes fee increases for Fiscal 2009
Posted on June 03, 2008In a Federal Register notice today, the USPTO has proposed fee increases for its Fiscal Year 2009, which begins October 1, 2008. The increases are based on the projected Consumer Price Index for the period ending September 30, 2008, which is 4%...
Tenth Circuit: No trademark infringement, unfair competition, or cybersquatting by parody sites
Posted on June 02, 2008In a decision last week, the Tenth Circuit affirmed a district court's grant of summary judgment finding no trademark infringement, no unfair competition, and no cybersquatting. The district court held, and the Tenth Circuit affirmed, that none of the three elements of a trademark infringement action was proven, namely that the mark was not protectable, the defendant's use was not in connection with goods or serivces, and that the successful parody showed there was no likely confusion...
Second prong of declaratory judgment jurisdiction test survived MedImmune
Posted on May 29, 2008In a decision yesterday, the Federal Circuit affirmed a district court's grant of summary judgment of noninfringement and its related finding that the court had declaratory judgment jurisdiction. The court, for the first time since the Supreme Court's MedImmune decision, addressed the second prong of its pre-MedImmune declaratory judgment test...
Fifth Circuit passes on eBay's applicability in trademark cases
Posted on May 29, 2008In a decision last week, the Fifth Circuit affirmed a district court's conclusion it had subject matter jurisdiction over a trademark case, as well as its grant of a preliminary injunction. While the activities giving rise to the claim of trademark infringement took place in Mexico, they had a "substantial effect" on United States commerce, and thus were within the court's subject matter jurisdiction...
Highlights from Drake Law School Summer Institute in Intellectual Property, Biotech, and Ag Sciences
Posted on May 21, 2008The Drake University Law School Summer Institute in Intellectual Property, Biotechnology, and Agricultural Sciences was held in Johnston, Iowa on May 19-20. The event, sponsored by Pioneer Hi-Bred International, addressed diverse topics including the impact of recent U...
New appeallate counsel insufficient reason to consider arguments not raised before district court
Posted on May 21, 2008In a decision today, the Federal Circuit affirmed a district court's decision finding two claims of a patent anticipated. The district court, adopting a magistrate judge's Report and Recommendation, held that the claims were invalid and granted summary judgment...
Eleventh Circuit combs over copyright law, idea-expression dichotomy in affirming noninfringement
Posted on May 16, 2008In a decision this week, the Eleventh Circuit upheld the district court's decision granting summary judgment of no copyright infringement to individuals and entities associated with two Trump buildings and denying the plaintiff leave to file a third amended complaint...
Intrinsic evidence supported pre-Phillips claim construction; finding of noninfringement affirmed
Posted on May 15, 2008In a decision yesterday, the Federal Circuit affirmed a district court's finding of noninfringement. The only disputed issue was one of claim construction. Although the district court issued its claim construction ruling before the Federal Circuit's Phillips decision and relied exclusively on a definition from a technical dictionary for its construction of the relevant term, the Federal Circuit still upheld the finding of noninfringement...
Priority claim contained in data sheet and appended via certificate of correction valid
Posted on May 15, 2008In a decision yesterday, the Federal Circuit vacated a district court's denial of a preliminary injunction. The district court denied the injunction on the basis of a substantial question of validity of the patent. The accused infringer alleged the patent was invalid under 35 U...
No claim preclusion unless second accused product essentially the same as product in first suit
Posted on May 14, 2008In a Tuesday decision, the Federal Circuit reversed a district court finding that a patent infringement suit was barred by claim preclusion. At issue was whether a claim for patent infringement was barred under the doctrine of claim preclusion when that claim could have been brought in a prior case...
Finding of inequitable conduct affirmed, Judge Rader expresses concern over resurgence of defense
Posted on May 14, 2008In a decision today, the Federal Circuit affirmed a district court's finding of inequitable conduct resulting from Rule 132 declarations that were used to overcome obviousness and anticipation rejections. The declarations used a difference in half-lives to distinguish the claimed composition over the prior art, however, it failed to indicate that the comparative half-lives were calculated using different initial dosages...
Claim construction and noninfringement affirmed on one patent, vacated on another
Posted on May 13, 2008In a decision last week, the Federal Circuit vacated a district court's grant of summary judgment of noninfringement of one patent and affirmed summary judgment of noninfringement of another. The determinations turned on the construction of one claim element in each patent...
Claim term construed by construing different term in specification deleted from claim
Posted on May 12, 2008In a decision last week, the Federal Circuit affirmed-in-part and vacated-in-part a district court's summary judgment of noninfringement based on a revised claim construction of two claim terms. The court, in somewhat of a departure from its typical practice, also construed one additional term that appeared likely to be relevant on remand, but which did not form the basis for the summary judgment ruling...
Hybrid vehicle patent not infringed; invalidity issues need not be reached on appeal from ITC
Posted on May 12, 2008In an appeal from the International Trade Commission, the Federal Circuit affirmed the Commission's determination of noninfringement of a patent. The court, however, did not consider the ITC's finding of nonenablement on appeal. While in the context of a district court case a counterclaim for invalidity is not mooted by a finding of noninfringement, the court held that because invalidity can only be raised at the ITC as an affirmative defense, the court was not required to consider the issue of indefiniteness on appeal once it had affirmed the finding of noninfringement...
District court's claim construction too narrow, but noninfringement finding affirmed anyway
Posted on May 07, 2008In a decision yesterday, the Federal Circuit held that a district court construed a claim limitation too narrowly. However, even under the broader construction, summary judgment was still appropriate, because there was no genuine issue of fact that the accused method still did not practice that element, either literally or under the doctrine of equivalents...
USPTO files notice of appeal in claim and continuation rules case
Posted on May 07, 2008As expected, this morning the USPTO filed a notice of appeal to the Federal Circuit in the lawsuit challenging its new claim and continuation rules. The USPTO will seek reversal of the district court's order finding the new rules exceeded the USPTO's rulemaking authority...
Thursday at the Federal Circuit: In re Bilski oral arguments on scope of patentable subject matter
Posted on May 06, 2008This Thursday, the Federal Circuit will hear oral arguments en banc in In re Bilski (No. 2007-1130), a case that will help define the scope of patentable subject matter. Numerous amicus briefs have been filed in the case, and perhaps most interestingly, two of the amici, Bank of America and Regulatory DataCorp, have been granted permission to participate in the oral arguments...
What's new at the USPTO: Markush rules comments, new PPH, and pre-first action interview pilot
Posted on May 02, 2008There have been a few new things relevant to the USPTO in the past couple of weeks that we haven't had a chance to talk about. They include more comments regarding the proposed rules regarding Markush claims, a new Patent Prosecution Highway with the European Patent Office, and a pilot program where patent applicants would be able to have an interview to discuss a proposed first office action with the examiner before the action issues...
Offer of judgment providing full recovery mooted case, preventing opinion regarding spoliation
Posted on May 01, 2008In a decision Tuesday, the Federal Circuit vacated a district court's order denying a declaratory judgment plaintiff attorney fees, but including a scathing description of alleged spoliation by the patentee/DJ defendant. The Federal Circuit held that the district court's decision was an improper advisory opinion, and therefore vacated with instructions to dismiss...
Elements of infringement claim not jurisdictional; "sale" occurs at location of buyer and seller
Posted on April 29, 2008In a decision yesterday, the Federal Circuit affirmed a district court's denial of the defendant's motion to dismiss for lack of subject matter jurisdiction. The court also denied the defendant's post-verdict motion for judgment as a matter of law...
Two district courts, one correct claim construction; $103 million damage award vacated
Posted on April 25, 2008In a recent decision, the Federal Circuit reversed a jury verdict of willful infringement and a total award of over $100 million based on a modified claim construction. The court also reversed the finding that one asserted claim was not anticipated, and remanded the case for a redetermination of infringement and whether the remaining claims were valid...
Quality of investigation irrelevant to whether claims objectively baseless
Posted on April 25, 2008In a Wednesday decision, the Federal Circuit affirmed a district court decision that a patent holder's communications with a competitor's customers that the competitor's products were infringing were not objectively baseless, and therefore could not support state law tort claims of unfair competition, intentional interference with contractual relations, interference with prospective economic advantage, and trade libel...
Supreme Court asks for government's view on whether it should hear sovereign immunity waiver case
Posted on April 22, 2008In an order yesterday, the Supreme Court asked the Solicitor General's office to file a brief providing the government's views on whether it should grant certiorari in Biomedical Patent Management Corp. v. California Department of Health Services (No...
Covenant not to sue insufficient to defeat DJ jursidiction because of Hatch-Waxman issues
Posted on April 21, 2008In a recent decision, the Federal Circuit addressed the issue of declaratory judgment jurisdiction in the context of the Hatch-Waxman Act. The court found that a unilateral covenant not to sue on a patent does not defeat declaratory judgment jurisdiction because there is still a "restraint on the free exploitation of non-infringing goods...
Patentee could not rebut presumption of estoppel; noninfringement finding affirmed
Posted on April 21, 2008In a decision Friday, the Federal Circuit affirmed a district court decision holding that application of the doctrine of equivalents was barred as the Festo presumptions had not been rebutted. The court noted that the patentee did not show that the alleged equivalent was unforeseeable at the time of making the narrowing amendment (which was the cancellation of an independent claim and rewriting a dependent claim into independent form) to the claims or that the narrowing amendment bore no more than a tangential relation to the alleged equivalent, the Federal Circuit upheld the district court's finding of noninfringement...
License under method patent not limited to use with licensor's products absent express limitation
Posted on April 18, 2008In a decision Wednesday, the Federal Circuit affirmed-in-part, vacated-in-part, and reversed-in-part a district court's decision regarding two patents. The district court held the broadest claims of both patents invalid and not infringed, and dismissed claims of inequitable conduct relating to the patents...
Assignee of patent not bound by previous assignee's agreement to arbitrate
Posted on April 17, 2008In a decision yesterday, the Federal Circuit affirmed a finding by a district court that a party may not be compelled to arbitrate as provided in a patent license agreement when the party was not a signatory party to the agreement but merely an assignee of the patent covered by the agreement...
Party defaulting before district court and enjoined cannot attack registration via cancellation
Posted on April 17, 2008In a decision this week, the Federal Circuit held that a party against whom a default judgment was entered in a trademark infringement case before a district court cannot thereafter petition to cancel the registration at issue before the TTAB. The TTAB held the claim barred by res judicata...
Preamble not limiting when duplicative of claim limitations and not added to overcome rejection
Posted on April 16, 2008In a recent decision, the Federal Circuit held that a district court erred in its construction of several claim terms in a patent, and as a result, vacated the district court's summary judgment of noninfringement and no invalidity. The court affirmed the district court's decisions regarding several other issues, including laches, inequitable conduct, and inventorship...
When priority not decided at PTO patentee bears burden of showing entitlement to earlier application
Posted on April 14, 2008In a decision Friday, the Federal Circuit affirmed a district court's grant of summary judgment of invalidity with respect to all asserted claims of two patents. More particularly, the court held that the claims of the patents were not entitled to the priority date of an earlier-filed application, and were therefore anticipated by intervening prior art...
Patent Reform once again dead in the water?
Posted on April 14, 2008Negotiations on a compromise version of the Patent Reform Act of 2007 (S.1145) broke down late last week, and now it appears that the bill may not be considered before the full Senate before its next recess in May, if at all.The breakdown occurred over the controversial damages apportionment provision in the bill...
Eleventh Circuit: eBay may eliminate presumption of irreparable harm in trademark cases
Posted on April 14, 2008In a recent decision, the Eleventh Circuit vacated a district court's injunction against the use of a competitor's trademarks in the meta tags of a defendant's website. The court held that while the plaintiffs had shown likelihood of success on both their trademark infringement and false advertising claims, because the district court relied on a presumption of irreparable harm to support its injunction, the injunction must be vacated...
Wal-Mart learns a lesson in copyright licensing the hard way
Posted on April 10, 2008A story in yesterday's Wall Street Journal (via Bill Patry) illustrates how important it is for parties to a transaction to know what they're getting up-front.Starting way back in the 1970s, Wal-Mart hired an outside company, Flagler Productions, to document various aspects of Wal-Mart's operations...
Denial of injunction against sending letters asserting infringement affirmed
Posted on April 10, 2008In a decision Tuesday, the Federal Circuit affirmed the denial of a preliminary injunction seeking to prevent a patentee from representing to the defendant's customers that the defendant's product potentially infringed the plaintiff's patent...
If ordinary meaning of claim term does not resolve disputed construction, court must construe term
Posted on April 10, 2008In a decision last week, the Federal Circuit vacated and remanded a jury's finding of willful infringement case back to a district court, based on errors in claim construction and application of the doctrine of equivalents. The district court's original Markman hearing determined that no construction was necessary for a particular claim term, "only if," whose scope was disputed by the parties...
Same claim term can be interpreted differently in the same claim if specification warrants
Posted on April 09, 2008In a decision last week, the Federal Circuit decided a case addressing the limitations of what constitutes "insolubly ambiguous" claim terms in order to amount to indefiniteness. The district court held the asserted claims invalid because they impermissibly mixed two statutory classes of subject matter, as well as because they required construing the same term differently in the same claim for the claims to make sense...
Federal Circuit: And can mean or, if it makes the claim make sense
Posted on April 08, 2008In a decision last week, the Federal Circuit affirmed a district court's permanent injunction against a defendant to prevent infringement of a patent. The district court held the patent not invalid and infringed, based in part on a claim construction that construed the word "and" to mean "or...
No April Fools joke: Continuation and claim limit rules held invalid; permanently enjoined
Posted on April 01, 2008In a ruling today regarding the parties' motions for summary judgment in the consolidated cases challenging the USPTO's new claim and continutation rules, Judge Cacheris ruled the rules were invalid, and permanently enjoined their enforcement...
Sixth Circuit: Partial fees to copyright defendant affirmed given plaintiff's litigation tactics
Posted on April 01, 2008In a decision last week, the Sixth Circuit affirmed an award of partial attorney fees to a defendant in a copyright case. The plaintiff sued multiple defendants, alleging copyright infringement under numerous theories. One such theory was that receipt of royalties from the sale of infringing music rendered a party liable for the underlying infringement...
Computer-implemented means-plus-function claim invalid when no algorithm disclosed in specification
Posted on March 31, 2008In a decision Friday, the Federal Circuit affirmed a final judgment of invalidity of all claims of a patent indefinite. The claims had several means-plus-function clauses that were computer-implemented, however no algorithms for implementing the claimed functions were disclosed in the specification...
Patent ownership may change by operation of law, including operation of foreign law
Posted on March 31, 2008In a decision today, the Federal Circuit vacated a district court's dismissal of a case for lack of standing on the basis of insufficient evidence of patent ownership. The inventor of the patent died intestate as the only owner of the patent...
Patent for better mousetrap obvious, secondary indicia could not rebut "strong prima facie case"
Posted on March 31, 2008In a decision Friday, the Federal Circuit addressed the issue of post-KSR obviousness and fraudulent misrepresentation. Regarding obviousness, the court held that the secondary indicia of nonobviousness simply could not overcome a "textbook case" of claims involving "a combination of familiar elements according to known methods that does no more than yield predictable results...
Patentee cannot recapture claim scope disavowed during prosecution to prove infringement
Posted on March 24, 2008In a decision Friday, the Federal Circuit affirmed a district court's claim construction and its concomitant grant of summary judgment of noninfringement, as well as its denial of attorney fees under § 285. The district court held the patentee had, during prosecution of the patent at issue, made a clear and unmistakable disavowal of claim scope, and as a result, under the doctrine of prosecution disclaimer, the accused devices could not fall within the scope of the claims...
§ 271(e) safe harbor applies to both product and method claims in ITC proceedings
Posted on March 19, 2008In a ruling today, the Federal Circuit affirmed in part a decision by the International Trade Commission (ITC) concerning the application of 19 U.S.C. § 1337 and 35 U.S.C. § 271(e)(1) to imported products and products imported produced via a patented process...
USPTO to modify requirements for withdrawal from representation effective May 12
Posted on March 18, 2008In a notice released yesterday, the USPTO announced that it will be changing the requirements for an attorney or agent to withdraw from representation of a client in a patent matter before the Office. Currently, the requirements for withdrawal are covered by 37 C...
15 different amendments proposed to Senate version of Patent Reform Act of 2007
Posted on March 14, 2008The Patent Reform Act of 2007 (S.1145) keeps plodding along in the Senate. Just over a month after the Senate Judiciary Committee released its report on the bill, there have now been 15 amendments circulated for possible consideration when the full Senate takes up the bill, with the potential for more to come before the bill is actually considered...
Section 121 safe harbor applies only to divisional, not continuation-in-part; later patent invalid
Posted on March 12, 2008In a decision last week, the Federal Circuit construed the scope of § 121's allowances for subsequent patent applications directed toward nonelected inventions in response to a restriction requirement. There were three patents at issue, one directed to pharmaceutical compounds, one to compositions containing those compounds, and a third covering methods of suing the compounds...
Second Circuit: Famous marks doctrine doesn't support NY unfair competition claim
Posted on March 05, 2008In a recent decision, the Second Circuit decided the one outstanding issue from a case it had previously decided in March 2007 (previously blogged here), namely whether the "famous marks" doctrine the court held Congress has not yet incorporated into federal trademark law might support a New York common law claim for unfair competition...
Second Circuit: Statements made in settlement discussions admissible to prove estoppel
Posted on March 05, 2008In a decision yesterday, the Second Circuit affirmed a jury's findings in a trademark infringement case between Polo Ralph Lauren and the U.S. Polo Association. The jury found that one of the USPA's four marks was likely to cause confusion...
When DJ and infringement suits both filed, transfer factors determine appropriate forum
Posted on March 05, 2008In a decision Friday, the Federal Circuit decided a case addressing the requirements for a declaratory judgment action post-MedImmune. The court reversed and remanded a district court's decision that there was no declaratory judgment jurisdiction applying the pre-MedImmune reasonable apprehension of suit standard rejected by the Supreme Court...
Ninth Circuit: "Exclusive" license from only one copyright co-owner really a nonexclusive license
Posted on March 05, 2008In a decision last week, the Ninth Circuit affirmed a district court's dismissal of a copyright infringement claim for lack of standing, as well as several related claims. The plaintiff obtained an "exclusive" license for one of the exclusive rights from a single co-owner of several copyrighted works...
Dependent claim can be construed to be broader than independent claim based on prosecution history
Posted on March 03, 2008In a decision last week, the Federal Circuit held a district court construed 1 of 2 claim terms correctly, and incorrectly concluded that prosecution history estoppel barred application of the doctrine of equivalents to a third claim term because the narrowing amendment was only tangentially related to the equivalent at issue...
Fifth Circuit affirms injunction against trademark infringement in Saudi Arabia
Posted on February 29, 2008In a recent decision, the Fifth Circuit affirmed a district court's finding of infringement and disgorgement of profits, but increased the amount of profits awarded because the defendant failed to provide evidence of its costs to reduce the award...
Eleventh Circuit: One-Satisfaction Rule Applies to Copyright Infringement Awards
Posted on February 28, 2008In a decision this week, the Eleventh Circuit reversed the decision of a district court, holding the "one-satisfaction rule" does apply to infringement claims under the Copyright Act.This appeal arose out of a jury award to copyright plaintiff of almost $1...
Post-verdict infringement royalty must take into account changed bargaining position of parties
Posted on February 28, 2008In a decision Tuesday, the Federal Circuit addressed the issuance, stay, and subsequent dissolution of a permanent injunction. Further, the court addressed how damages should be allocated from infringement during a stay. The district court took the jury's reasonable royalty for pre-verdict infringement and trebled it to determine the applicable post-verdict royalty...
Seventh Circuit: Operating agreement permitted license of marks, so no trademark infringement
Posted on February 25, 2008In its second trademark decision Friday, the Seventh Circuit clarified what is required for a party to be authorized to use another entity's trademarks. In this case, the plaintiff—one of four founders of two LLC's designed to manage and control a restaurant in Chicago—alleged trademark infringement against the three other co-founders based on the co-founders' use of the trademarks and trade dress of the two LLC's in similar restaurants in New York and Las Vegas...
Seventh Circuit: Sanction of no damages for improper witness contact too severe compared to harm
Posted on February 25, 2008In a decision Friday, the Seventh Circuit affirmed a jury verdict of trademark infringement, but reversed the district court's ruling holding the plaintiff had forfeited damages because of improper conduct towards a prospective witness. The court dealt with whether the burden of proof for the sanction was by clear and convincing evidence or as the district court concluded, by a mere preponderance of the evidence...
On-sale bar cannot be avoided by experimentation conducted by patentee's customer
Posted on February 25, 2008In a decision Thursday, the Federal Circuit provided additional guidance on the on-sale bar of § 102(b). In the case, the patentee developed a series of prototypes that were then sold to its customer, who then experimented with the prototypes and requested modifications to the prototypes...
Another preliminary injunction vacated on appeal, this time because of claim construction
Posted on February 22, 2008For a second time this week, the Federal Circuit vacated a preliminary injunction entered by a district court. This time, the court found the district court's claim construction too broad, and under the courts revised, narrower construction, found that the plaintiffs were not likely to succeed on the merits of the case...
Seventh Circuit: Dismissal with prejudice makes defendant "prevailing party" and eligible for fees
Posted on February 21, 2008In a decision yesterday, the Seventh Circuit clarified what is required for a party to be considered a "prevailing party" in a copyright case, and therefore be eligible for an award of attorneys' fees under § 505. In this case, the plaintiff asked for a voluntary dismissal without prejudice under Rule 41(a)(2), as the case had been pending for over a year...
Seizure of goods with counterfeit marks not an "embargo," so no CIT jurisdiction to challenge fine
Posted on February 21, 2008In a decision this week, the Federal Circuit vacated the decision of the Court of International Trade (CIT) and remanded with instructions to dismiss the plaintiff's complaint for lack of subject matter jurisdiction.The case arose out of a civil fine levied against the plaintiff for importation of counterfeit goods...
Post-KSR obviousness arguments cast sufficient "doubt" on validity to vacate preliminary injunction
Posted on February 20, 2008In a decision yesterday, the Federal Circuit vacated a preliminary injunction entered in the Northern District of Ohio enjoining the selling and copying of a product used to practice a method claimed in a patent. In doing so, the Federal Circuit utilized of the traditional four–factor test for preliminary injunctions and specifically analyzed the first factor, likelihood of success on the merits...
USPTO proposes rules requiring deposit of biological material before publication of application
Posted on February 20, 2008In today's Federal Register, the USPTO proposes rules that will alter when a deposit of biological material is required to be made when such a deposit is used to satisfy the requirements of 35 U.S.C. § 112. Specifically, the proposed rule will require that a deposit, if necessary, be made before the application is published...
Federal Circuit to consider overruling State Street en banc
Posted on February 15, 2008The Federal Circuit has, on its own motion, decided to hear a case en banc regarding the scope of patentable subject matter under § 101. The case, In re Bilski (No. 2007-1130), was argued before a panel of the court on October 1, 2007, and deals with the patentability of methods that involve only mental steps...
Discovery needed to determine effect of employment agreement on patent ownership, but no jury trial
Posted on February 14, 2008In a decision yesterday, the Federal Circuit remanded a case for further discovery, finding that the district court abused its discretion by denying jurisdictional discovery regarding patent ownership due to the "central relevance" of the information...
Request to stay injunction pending appeal may also be considered notice of appeal; estoppel bars DOE
Posted on February 12, 2008In a decision yesterday, the Federal Circuit reversed a jury's verdict of infringement under the doctrine of equivalents. The court had previously vacated-in-part and reversed-in-part the district court's earlier summary judgment of infringement, the result of which was the jury trial conducted by the district court...
Tenth Circuit: 1-800-SKI-VAIL does not infringe VAIL service mark
Posted on February 12, 2008In a decision last week, the Tenth Circuit affirmed a district court's ruling in a trademark case in favor of the defendant, finding the defendant's use of the vanity telephone number "1-800-SKI-VAIL" for marketing services relating to the ski industry was not likely to be confused with the Plaintiff's service mark registration for "VAIL" encompassing the gamut of commercial recreational activities and accompanying amenities available in and around the Town of Vail, Colorado...
No en banc rehearing for case holding "signals" not patentable subject matter
Posted on February 11, 2008In a precedential order today, the Federal Circuit denied a petition for rehearing en banc in In re Nuijten. In that case, a panel of the court held that claims drawn to a "signal" did not fall into any of the statutory categories of patentable subject matter and were thus unpatentable under § 101...
All versions of MPEP now available on USPTO website
Posted on February 08, 2008The USPTO has now made available all prior editions of the Manual of Patent Examining Procedure on its website here. This is great news for those who have ever had to try to track down a version of the MPEP that was more than about 10 years old, as they had not previously been easily accessible online.
Motions for summary judgment in claim and continuation rules case taken under advisement
Posted on February 08, 2008We've just received word that the hearing on the motions for summary judgment in the consolidated cases challenging the USPTO's claim and continuation rules has concluded, and the motions have been taken under advisement. So, no ruling from the bench today, and no hint as to when a ruling might be expected.
Claims requiring an "insert" do not cover products with similar structure not "inserted"
Posted on February 08, 2008In a decision Wednesday, the Federal Circuit affirmed a district court ruling granting summary judgment of non-infringement. At the outset, the court noted the patent at issue had been before the court multiple times, and the claim terms at issue in this appeal had already been construed by the court in earlier cases...
Hearing on summary judgment motions in claim and continuation rules case this morning
Posted on February 08, 2008This morning at 10:00 EST, Judge James C. Cacheris in the Eastern District of Virginia will hold a hearing on the parties' motions for summary judgment in the consolidated cases challenging the USPTO's claim and continuation rules. When ruling on the preliminary injunction, Judge Cacheris granted the injunction in a ruling from the bench at the conclusion of the hearing, so it's possible that he may rule from the bench once again today...
Second Circuit: Sales pitch of slogan to credit card companies not use in commerce
Posted on February 08, 2008In a decision Monday, the Second Circuit affirmed a district court's summary judgment in a trademark case involving the slogan "My Life. My Card." An individual threatened to sue American Express for use of the slogan, alleging that he had superior rights in the mark based on efforts to license the phrase to various credit card companies, including American Express...
Summary of today's summary judgment hearing in the claim and continuation rule cases
Posted on February 08, 2008As we reported earlier, Judge Cacheris took the parties' motions for summary judgment under advisement in the consolidated cases challenging the USPTO's claim and continuation rules. Below is a summary of the hearing from our representative who was in attendance...
Federal Circuit once again affirms that saving patented seeds for replanting is infringement
Posted on February 06, 2008In a decision yesterday, the Federal Circuit once again affirmed a finding of infringement against a farmer who saved seeds covered by a patent to replant the following year. The plaintiff in this case, Monsanto, has brought similar cases in the past, and they have resulted in similar outcomes...
Infringement of two claims and $74 million in damages affirmed, injunction reinstated
Posted on February 05, 2008In a decision last week, the Federal Circuit affirmed-in-part and reversed-in-part a jury verdict of infringement of a patent owned by Tivo relating to its DVR technology. The ruling was based on claim construction, with the court finding that, based on the correct construction of claims directed to the DVR hardware, there was no infringement of those claims...
Reply briefs filed in claim and continuation rules case; administration opposes patent reform
Posted on February 04, 2008Late Friday, the parties filed their reply briefs in the cases challenging the USPTO's claim and continuation rules. As with the parties' opposition filings, these briefs largely represent another repetition of the arguments raised in the parties motions for summary judgment...
Mandamus inappropriate unless no other way to get relief, even if result is unnecessary trial
Posted on February 04, 2008In a precedential order last week, the Federal Circuit denied a petition for a writ of mandamus seeking to direct a district court to vacate its summary judgment order in favor of a patent infringement plaintiff and to enter judgment in favor of the alleged infringer...
Federal Circuit reiterates that full scope of claim must be enabled to meet enablement requirement
Posted on February 04, 2008In a decision last week, the Federal Circuit affirmed a district court's decision holding several claims of two patents invalid for lack of enablement. The district court held that while a portion of the scope of the claims was enabled, the full breadth of the claims were not, and as a result, the claims did not meet the enablement requirement of § 112...
Patent Reform Act of 2007 scheduled for consideration this month
Posted on February 01, 2008The Patent Reform Act of 2007 (S. 1145) is now officially back on the radar. It was recently placed on the Senate's calendar, and is likely to be considered by the full Senate sometime this month. This has resulted in a corresponding increase in the lobbying efforts by those on both sides of the debate...
Tenth Circuit: Submitting eBay VeRO notice confers jurisdiciton in alleged infringer's home state
Posted on January 30, 2008In a recent decision, the Tenth Circuit reversed a district court's dismissal of a copyright case for lack of personal jurisdiction. The case arose out of the efforts by a copyright holder to have an eBay auction for allegedly infringing products removed via eBay's VeRO program...
Sufficient structure recited in claim limitation using "means" to prevent application of § 112 ¶ 6
Posted on January 30, 2008In a decision yesterday, the Federal Circuit reversed a district court's claim construction and the associated summary judgment of noninfringement. The district court held the relevant claim term was a means-plus-function limitation, as it used the word "means," as well as because in an interview summary in the prosecution history, it appeared the USPTO interpreted the term as a means-plus-function clause...
Claim construction excluding disclosed embodiment improper absent disclaimer of some kind
Posted on January 30, 2008In a decision today, the Federal Circuit reversed a district court's claim construction and the associated summary judgment of noninfringement. The district court's construction of one of the claim limitations resulted in certain embodiments of the invention disclosed in the figures to be excluded from the scope of the claims...
No damages for convoyed sales when no functional relationship between patented and unpatented goods
Posted on January 29, 2008In a decision today, the Federal Circuit affirmed a district court's decision setting aside the portion of a jury verdict awarding convoyed sales to a patentee, and sustaining the portion of the verdict finding the alleged infringer had not shown invalidity via public use...
EU highest court rules ISPs not required to identify P2P users allegedly infringing copyrights
Posted on January 29, 2008In a decision released today, the highest court in the EU, the European Court of Justice, ruled that under EU law, internet service providers (ISPs) are not required, in the course of a civil lawsuit, to disclose the identity of an individual subscriber associated with a particular IP address...
Claims to "fragile gel" indefinite even though term defined in specification
Posted on January 28, 2008In a second decision Friday, the Federal Circuit affirmed a district court's finding of 35 U.S.C. § 112, second paragraph indefiniteness. The term was defined in the specification, however the district court held that definition was too subjective and unclear, largely because it relied on relative terms...
Disclosure of prior art abstract only when more relevant detail known results in inequitable conduct
Posted on January 28, 2008In a decision Friday, the Federal Circuit affirmed a district court's finding of inequitable conduct based on nondisclosure of details of a poster presentation presented at a scientific conference. While the patentee disclosed the abstract during prosecution of the patents-in-suit, notes taken by one of the patentee's employees with much more detail of what was actually presented at the conference were not...
USPTO to start enforcing requirement that inventor oaths include reference to duty of disclosure
Posted on January 23, 2008In a notice dated yesterday, the USPTO announced that it will begin enforcing compliance with 37 C.F.R. § 1.63(b)(3), which requires that inventor oaths include an acknowledgement of the duty to disclose information material to patentability under 37 C...
Oppositions to motions for summary judgment filed in cases challenging claim and continuation rules
Posted on January 23, 2008Yesterday, the USPTO, Glaxo, and Dr. Tafas filed their oppositions to the motions for summary judgment in the consolidated cases challenging the USPTO's claim and continuation rules. At first glance, they make many of the same arguments raised in the parties' motions for summary judgment...
Roundup of media coverage of oral arguments in Quanta v. LG
Posted on January 21, 2008After the Supreme Court heard oral argument last week in Quanta Computer, Inc. v. LG Electronics, Inc. (No. 06-937), the media and blogosphere have begun to weigh in on the arguments. You can find our take on the arguments in this post, or click below for a sampling of the coverage from other sources...
When market entry fee part of damages for patent infringement, permanent injunction inappropriate
Posted on January 21, 2008In a recent decision, the Federal Circuit affirmed a finding of infringement of a patent relating to the detection and classification of Hepatitis C Virus, but remanded the case for a determination of anticipation. In arguably the most interesting aspect of the decision, the court vacated the permanent injunction entered against the defendant...
Sixth Circuit: Some claims relating to license agreement with arbitration clause not arbitrable
Posted on January 21, 2008In a recent decision, the Sixth Circuit considered the scope a mandatory arbitration clause in a software license agreement, and specifically whether the clause mandated arbitration of certain copyright infringement and other claims arguably related to the agreement...
Federal Circuit again tackles the meaning of "a"
Posted on January 18, 2008In a decision this week, the Federal Circuit affirmed-in-part and reversed-in-part a district court's grant of summary judgment of non-infringement with respect to two patents relating to cleaning printing press cylinders. Both findings were based on issues of claim construction, with one centering around an issue that has reached the Federal Circuit multiple times: the definition of the word "a...
Oral argument in Quanta v. LG - some highlights
Posted on January 18, 2008On Wednesday, the Supreme Court heard oral argument in Quanta Computer, Inc. v. LG Electronics, Inc. (No. 06-937), a case regarding the scope of the concept of patent exhaustion, also known as the first sale doctrine. While the entirety of the arguments is worth a read (the transcript is available here), click below for our impressions of the arguments...
Eleventh Circuit: Trademark licensee liable for infringement when deviating from license
Posted on January 17, 2008In a decision Tuesday, the Eleventh Circuit affirmed a district court's finding of trademark infringement against a trademark licensee. The alleged infringer was actually licensed to use the mark owner's trademark, but did not use the mark as described in the license, instead using an abbreviated form...
Timely article in Popular Science regarding the USPTO and its backlog
Posted on January 16, 2008The passage below is from an article in Popular Science, and is timely given the current workload of the USPTO and statements by Director Dudas that application pendency will continue to increase:The Patent Office Has Become A National DisgraceTHE Patent Office, in Washington, D...
Patent Reform Act of 2007 to be passed in 2008?
Posted on January 16, 2008The internet is abuzz with talk that the much-maligned Patent Reform Act of 2007 (H.R. 1908 & S. 1145) may be passed in some form this month. A draft version of the Senate Judiciary Committee's report on the bill was released earlier this week, and while it does not contain any revised provisions, it does offer a fairly detailed description of the Senate version of the bill as it currently stands...
Tomorrow at the Supreme Court: Oral argument in Quanta v. LG
Posted on January 15, 2008Tomorrow the Supreme Court will hear oral argument in Quanta Computer, Inc. v. LG Electronics, Inc. (No. 06-937). The case will determine whether patent owners who sell products embodying their patents conditionally are able to recover damages for patent infringement if the products are subsequently sold beyond the scope permitted by the original sale...
Seventh Circuit: Injunction against use of plaintiff's copyrights and trade secrets too vague
Posted on January 14, 2008In a decision last week, the Seventh Circuit vacated and remanded a district court's preliminary injunction in a copyright and trade secret case. The court addressed the degree of specificity necessary for an injunction against misappropriating trade secrets and infringing copyrights, and vacated the injunction because it failed to detail the substance of the trade secret or confidential information the defendant was enjoined from using...
Paper posted on public FTP site not necessarily printed publication; summary judgment reversed
Posted on January 10, 2008In a decision this week, the Federal Circuit vacated and remanded the district court's determination that the plaintiff's patents-in-suit were invalid as anticipated by another paper that was publicly available via the patentee's FTP site before the critical date for the span of one week, finding genuine issues of material fact as to whether the paper was "publicly accessible" as required by 35 U...
Pre-KSR obviousness instruction does not result in plain error post-KSR
Posted on January 10, 2008In a decision this week, the Federal Circuit affirmed findings of infringement of two patents by two defendants. The court also reversed an invalidity ruling of one of one claim that had been the subject of reexamination, but remanded the case to the district court for a determination of the obviousness of one claim based on a revised claim construction and for a determination of damages...
Fifth Circuit: Prevailing defendant in file sharing copyright case not entitled to attorney fees
Posted on January 07, 2008On Friday, the Fifth Circuit affirmed a district court finding denying an award of attorney's fees to a defendant who had been sued for copyright infringement by several recording companies, as part of the industry's ongoing litigation efforts to curb file sharing...
Ninth Circuit: Karaoke is audiovisual work, so not fully covered by § 115 compulsory license
Posted on January 03, 2008In a decision yesterday, the Ninth Circuit affirmed a district court's dismissal of a complaint for declaratory judgment by a karaoke device manufacturer without leave to amend for failure to state a claim. The complaint sought a declaration that a compulsory license under § 115 of the Copyright Act was a sufficient license for a karaoke device to not only play music, but also display the lyrics in real time in coordination with the music...
Amici piling up in lawsuit challenging new claim and continuation rules
Posted on December 31, 2007Although the parties' motions for summary judgment have been filed, the amici keep coming forward in the consolidated lawsuits challenging the new claim and continuation rules. This brings the total number of amici in this case over 30, filing 19 20 (as of 1/4) total briefs...
Ninth Circuit clarifies differences between proof of protectable trademark and proof of infringement
Posted on December 31, 2007In a decision Friday, the Ninth Circuit clarified the differences in use requirements to prove the existence of a protectable trademark as compared to trademark infringement. The plaintiff and defendant both used the same mark, but in connection with different services...
Fourth Circuit: Subpoena to foreign corporation valid even though no U.S. business contacts
Posted on December 31, 2007The Fourth Circuit last week addressed a district court's ability to issue subpoenas to foreign witnesses in USPTO administrative proceedings. The court held that a district court may issue a Rule 30(b)(6) subpoena to a foreign corporation who is party to an opposition, even if the party has no officers, directors or managing agents who reside within the jurisdiction...
Term defined in specification limited even though partially characterized as exemplary
Posted on December 28, 2007In a recent decision, the Federal Circuit vacated and remanded a limited exclusion order by the International Trade Commission. The ITC entered an exclusion order that prevented importation of products produced by a method that infringed two patents...
Third Circuit: Some store brand sucralose packaging confusing; injunction denial partially reversed
Posted on December 28, 2007In a Christmas Eve decision, the Third Circuit partially reversed a district court's denial of a preliminary injunction regarding "store brand" sucralose sweeteners. McNeil Nutritionals, makers of Splenda®, brought suit against a company that produces several different sucralose products that bear the store's name and compete with Splenda®...
AUTM releases 2006 annual licensing survey
Posted on December 27, 2007The Association of University Technology Managers (AUTM) has released its summary report for the 2006 AUTM U.S. Licensing Activity Survey. The yearly survey is an ongoing effort of the organization to assist in informing the public about academic technology transfer professionals in order to improve public understanding of their activities...
Fifth Circuit: Beyoncé song does not infringe songwriter's copyright
Posted on December 26, 2007In a decision last week, the Fifth Circuit affirmed a district court's grant of summary judgment of no copyright infringement. A plaintiff brought suit against the singer Beyoncé Knowles and several parties with whom she is associated alleging that Beyoncé's song "Baby Boy" infringed the plaintiff's work...
Motions for summary judgment filed in lawsuit challenging claim and continuation rules
Posted on December 21, 2007Yesterday the parties filed their motions for summary judgment in the cases brought by GlaxoSmithKline (GSK) and Dr. Tafas challenging the USPTO's new claim and continuation limit rules. Apparently the earlier order setting the deadline for amicus briefs did not apply to the parties' motions, as earlier speculated...
Eleventh Circuit: No likely confusion between stylized logos for competing welding companies
Posted on December 20, 2007In a decision this week, the Eleventh Circuit affirmed a grant of summary judgment of no service mark infringement. The court held that there were no triable issues of fact as to whether the companies' service marks were confusingly similar, the existence of actual confusion, and the defendant's intent...
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