The shape of a building can be registered as inherently distinctive trade dress in the United States – if it is distinctive and unusual for buildings of that type – holds the U.S. Patent and Trademark Office Trademark Trial and
IP Litigation Current
IP Litigation Current, published by Foley & Lardner LLP, focuses on developments and issues in intellectual property litigation. The blog covers topics such as trade dress protection, design patent obviousness standards, procedural aspects of International Trade Commission investigations, and proposals for specialized patent dispute courts. It addresses legal strategies, regulatory changes, and case law impacting patent, trademark, and trade dress enforcement. The content includes analysis of administrative and judicial proceedings, evidentiary practices, and policy discussions relevant to IP litigators and stakeholders.
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Full Federal Circuit Set to Consider Changing the Test for Obviousness of Design Patents
Last week, the Federal Circuit decided to consider, en banc, whether the Supreme Court’s 2007 KSR decision regarding obviousness overruled the Federal Circuit’s decades-old Rosen and Durling tests for design patents, setting in motion a potential lowering of the bar…
ITC Practice and Procedure: Form of Witness Testimony
Over the past five years, five of the six Administrative Law Judges (ALJs) at the International Trade Commission (ITC) have retired and four new ALJs have been appointed. Former Chief Judge Charles Bullock, along with Judges Theodore Essex, Thomas Pender,…
Do We Need a Small Claims Court for Patent Disputes?
On May 3, 2022, the Administrative Conference of the United States (“ACUS”) announced that the United States Patent and Trademark Office (“USPTO”) had engaged ACUS to conduct an independent study into the issues associated with, and the design of, a…
Choose the Words of Your Design Patent Applications Carefully
The Federal Circuit recently narrowly construed the claim of a design patent application to reverse the holding of the Patent Trial and Appeal Board (PTAB) affirming the rejection of the claim for a lip implant based on a prior art…
A December to Remember: The Trademark Modernization Act Implemented on December 18, 2021
The Trademark Modernization Act of 2020 (“TMA”) went into effect on December 18, 2021. Applicants and registrants now have new tools at their disposal to clear the federal register of unused trademarks and the USPTO can move applications through…
U.S. Supreme Court to Decide Constitutionality of PTAB Judge Appointments
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…
A Rubric for Design Patent Claim Construction to a “Tee”
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…
U.S. Supreme Court Rejects Categorical Rule That Trademark Infringement Must Be “Willful” to Award Infringer’s Profits in Romag v. Fossil
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…
American Rule Prevails; PTO May Not Collect In-House Attorneys’ Fees as “Expenses”
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…