IP Litigation Current

The U.S. Supreme Court will hear a case that has dramatic and sweeping implications for proceedings before the Patent Trial and Appeal Board (PTAB). On October 13, 2020, the Supreme Court granted three petitions for writ of certiorari related to Arthrex, Inc. v. Smith & Nephew, Inc. that will address whether or not administrative patent judges of the U.S. Patent and Trademark Office have been constitutionally appointed. The Federal Circuit concluded last October that PTAB…
Lanard Toys Limited v. Dolgencorp LLC, JA-RU, Inc., Toys “R” US-Delaware, Inc. (Fed. Cir. 2020) In a recent precedential opinion, the Federal Circuit noted that the district court followed the Federal Circuit’s “claim construction directives to a tee.”  Here, the design patent at issue contained both functional and non-functional elements.  Accordingly, litigants or potential litigants involving design patents having functional and non-functional elements are encouraged to review this decision to better understand the scope of…
Once again, a decision by the Federal Circuit has been overturned by the Supreme Court. In its April 23, 2020, ruling vacating and remanding the decision in Romag Fasteners, Inc. v. Fossil, Inc., the Supreme Court resolved a split in the Circuit Courts by rejecting the proposition that trademark infringement must be willful to warrant an award of disgorgement of a trademark infringer’s profits. Circuits, such as the Second, Eighth, Ninth, Tenth, and D.C.…
In a short opinion issued on December 11, 2019, the Supreme Court rejected the PTO’s recent attempt to collect attorneys’ fees under a little-used provision of the Patent Act. The decision in Peter v. NantKwest (No. 18-801) asked whether this is a statute to which the American Rule (the principle that each party is responsible for its own attorneys’ fees) should be applied, and if so, whether there is statutory language overcoming the Rule’s…
On November 15, 2019, the Federal Circuit issued an opinion in Koninklijke KPN N.V. v. Gemalto M2M GmbH et al., 2018-1863, that provides additional guidance on the patentability of data processing-related claims.  The decision also distinguishes several cases in which claims were found to be ineligible, and helps delineate where the line for subject matter eligibility falls. KPN had asserted U.S. Patent No. 6,212,662 (“the ‘662 Patent”) which was directed to a device for improved…
Governmental and private antitrust actions against technology companies expanded in 2018 and 2019, particularly relative to electronics and pharmaceutical companies.  This post provides an overview of several important decisions relative to those sectors.  Consistent with the purpose of the antitrust laws, the decisions below have a common theme of protecting competition, and thus ultimately consumers, from abusive marketplace conduct by those with monopoly power. Electronics: Monopolistic Retailers and Abusive Licensing Practices Apple Inc. v. Pepper,…
Many patent practitioners assume that non-practicing entities cannot obtain permanent injunctions in patent cases.  This is attributed to the belief that NPEs fail the four-factor test set out by the Supreme Court in eBay.  Given that belief, it is surprising for some to learn that a recent decision from the Northern District of California resurrected decade old case law indicating that non-practicing entities can get injunctive relief.  Practitioners having cases involving NPEs would do well to…
Practitioners should be aware that challenging the PTAB’s decision to deny institution of an IPR got even harder after a recent Federal Circuit decision.  While the Supreme Court has already made clear that challenges to denial of an institution decision can only happen in very specific circumstances, the Federal Circuit’s recent precedential decision in In re: Power Integrations, Inc., 2018-144, 2018-145, 2018-146, 2018-147 (Fed. Cir. Aug. 16, 2018) gives Cuozzo Speed Technologies, LLC v. Lee,…
On June 28, 2018, Representatives Thomas Massie (R-KY-4), Marcy Kaptur (D-OH-9) and Dana Rohrabacher (R-CA-48) introduced H.R. 6264, the “Restoring America’s Leadership in Innovation Act of 2018.” The bill ambitiously seeks to curtail or repeal numerous provisions of the 2011 America Invents Act (“AIA”) as well as certain recent Supreme Court cases. The bill calls for the explicit repeal of the AIA’s version of 35 U.S.C. § 102 and the AIA’s post-issuance review provisions.  Section…
The case of Rearden LLC et al. v. The Walt Disney Company et al., Nos. 3:17-cv-04006, 04191 & 04192 (N.D. Cal.), has been covered more in the Hollywood Reporter than in legal publications, but it is both a “Hollywood story” and a case with intellectual property issues that cover the spectrum of patent, copyright and (to a lesser extent) trademark law. The case revolves around a technology called MOVA Contour Reality Capture technology (“MOVA Contour”)…