Archives: Intellectual Property

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You Still Can’t Patent Ideas

By Barry Barnett on Posted in Intellectual Property
Broad patents You could get really rich if you had a patent on something like "a device that can make and receive wireless phone calls". That would cover every wireless phone, dumb and smart, that ever existed. It would include the satchel phone that Blawgletter's friend Darrell Gest carried around in his ratty pickup back … Continue Reading

Juice Case Gets Boost in Supreme Court

By Barry Barnett on Posted in Intellectual Property
If you need to sue somebody for stealing your customers with false advertising, don't worry about a conflict between two federal statutes — the Food, Drug, and Cosmetic Act and the Lanham Act. No conflict exists, the Supreme Court held today. To understand why, let us tell you . . . . . . a … Continue Reading

“Fail to Inform with Reasonable Certainty” Replaces “Insolubly Ambiguous” Test for Patent Definiteness

By Barry Barnett on Posted in Intellectual Property
Patents require definiteness The U.S. Supreme Court has tightened the test for whether a patent "particularly point[s] out and distinctly claim[s] the subject matter which the applicant regards as [the] invention." 35 U.S.C. § 112, ¶ 2. The Federal Circuit (which handles all appeals from district courts on patent matters) had interpreted the statute to … Continue Reading

High Court Narrows Reach of Patent Liability

By Barry Barnett on Posted in Intellectual Property
The U.S. Supreme Court took a step today towards limiting patent infringement cases, at least ones involving "method" patents (i.e., ones that describe a process rather than a device, design, or other patentable subject matter). Kinds of infringement Patent infringement may take different forms: "Direct" infringement under 35 U.S.C. 271(a). "Inducement" of infringement under 35 … Continue Reading

Damages Experts Get Apple v. Motorola (Google) Reprieve

By Barry Barnett on Posted in Intellectual Property
Boy, the Federal Circuit's sure lowered the boom on Seventh Circuit Judge Richard Posner in Apple Inc. v. Motorola, Inc., No. 12-1548 (Fed. Cir. Apr. 25, 2014). Smartphone warfare. The appeal dealt with Judge Posner's rulings as a trial court judge in the Northern District of Illinois phase of the titanic smartphone struggle between Apple and Motorola, which … Continue Reading

Will High Court Curb the Federal Circuit?

By Barry Barnett on Posted in Intellectual Property
A rule that has applied in patent cases since 1998 may go the way of Chevy Cobalt ignition switches. "Deference, I Don't Have to Show You any Stinkin' Deference" riffed on a line from The Treasure of the Sierra Madre (1948), in which Gold Hat, posing as a Mexican Federale, says "Badges, I don't have to show … Continue Reading

New Test Governs False Advertising Claims

By Barry Barnett on Posted in Intellectual Property
The Supreme Court today adopted a new test for claims under the federal Lanham Act, which creates a cause of action for "false association" and "false advertising". Lexmark Int'l, Inc. v. Static Control Components, Inc., No. 12-873, slip op. 3 (U.S. Mar. 25, 2014). Writing for a 9-0 Court, Justice Antonin Scalia brushed aside three … Continue Reading

Watch Out for this Deadly Patent Doctrine

By Barry Barnett on Posted in Intellectual Property
If you've handled a bunch of patent cases without running across the Kessler doctrine, don't feel like the Lone Ranger. Until today, IP wizards like you likely had little cause to know about the patent-claim-killing rule that sprang more than a century ago from Kessler v. Eldred, 206 U.S. 285 (1907). Be warned. It's lethal. … Continue Reading

No Contempt for Use of IP, Federal Circuit Rules

By Barry Barnett on Posted in Intellectual Property
The latest from the Federal Circuit teaches that a transfer of ownership rights in intellectual property doesn't necessarily bar the transferor from using the IP. The case involved an ex-employee of Energy Recovery, Inc., Leif J. Hauge. ERI had sued Mr. Hauge over who owned IP relating to "pressure exchangers", which relate somehow to "reverse … Continue Reading

Google’s “Street View” Can’t Dodge Patent Claims, Federal Circuit Holds

By Barry Barnett on Posted in Intellectual Property
The Chief Judge of the Ninth Circuit erred when he booted patent infringement claims against "Street View", the Google feature that lets you look at images of houses, buildings, and other objects that line streets and highways online. The mistake came in how Chief Judge Alex Kozinski construed a phrase — "substantially elevations" — that described the … Continue Reading

Michael Jordan Slam-Dunks Jewel on Appeal; the All-Time Greatest?

By Barry Barnett on Posted in Intellectual Property
When the Naismith Memorial Basketball Hall of Fame inducted long-time Chicago Bulls shooting guard Michael Jordan in 2009, Jewel Food Stores gave an assist by agreeing to sell (in its 175 Windy City-area grocery stores) a special Sports Illustrated issue that honored Jordan and his awesome career. SI in return provided Jewel a free throw – a full-page ad … Continue Reading

Bootleg Copy of Earnings Call Didn’t Infringe Swatch’s Copyright

By Barry Barnett on Posted in Intellectual Property
The Swiss company Swatch makes stylish watches but takes itself Way Too Seriously. A couple of weeks ago, Swatch lost an appeal over whether the maker of low-end, cutie-pie Swap watches infringed the high-end, hoity-toity Swatch trademark. "Swiss Swatch Swings at Swap, Whiffs". This week, Swatch lost an appeal having to do with an equally goofy … Continue Reading

Supreme Court Floats Raft of New IP Cases

By Barry Barnett on Posted in Intellectual Property
The big three of intellectual property disputes in federal courts – the Copyright Act, the Patent Act, and the Lanham (Trademark) Act – drew the focus of the U.S. Supreme Court today. The justices granted review in three IP cases and one IP-ish one. The cases present these questions: Whether the Federal Circuit erred in holding that a defendant may … Continue Reading

Shape of Useful Object Does Not Make It Copyrightable, Ninth Circuit Holds

By Barry Barnett on Posted in Intellectual Property
Inhale, Inc., got a copyright certificate from the U.S. Copyright Office for a hookah that featured a skull-and-crossbones design. A month later, Inhale sued Starbuzz Tobacco for infringing the copyright. But Starbuzz's hookah didn't include the osseous symbol that appears often on pirates' Jolly Rogers. The lack of bony stuff didn't matter, Inhale puffed, due to the distinctive … Continue Reading

Swiss Swatch Swings at Swap, Whiffs

By Barry Barnett on Posted in Intellectual Property
Swatch makes Swiss watches. It sells them at Swatch stores, many in malls. The chronometers come in many styles. They cost $100 and up. Young people like them. But you can’t take the body of one Swatch watch and pop it on another Swatch wrist band. You can do that very thing with Swap watches. … Continue Reading

Why We Love Patent Cases

By Barry Barnett on Posted in Intellectual Property
That homologous recombination occurs between the targeted DNA and an introduced plasmid that is homologous to a chromosome does not require that the targeted DNA actually be chromosomal DNA. It requires only that the targeted DNA be homologous to chromosomal DNA. Non-chromosomal DNA, such as mitochondrial DNA or DNA in an additional plasmid, can be … Continue Reading

Federal Circuit Eases Test for Fee-Shifting in Patent Cases Ahead of Supreme Court Ruling

By Barry Barnett on Posted in Intellectual Property
Patent law allows a trial court to make the losing party pay the winner's attorneys' fees but only in "exceptional cases". 35 U.S.C. 285. What counts as "exceptional", you say? Good question. The U.S. Supreme Court plans to answer it in Octane Fitness, LLC v. Icon Health & Fitness, Inc., No. 12-1184 (U.S.), which the … Continue Reading

Trademark Owner Must Prove Likely Irreparable Harm for Preliminary Injunction, Ninth Circuit Rules

By Barry Barnett on Posted in Intellectual Property
Herb Reed Enterprises (HRE) claimed that Larry Marshak infringed HRE's trademark rights in "The Platters", a name and mark that relate to a singing group whose hey-day spanned the second half of the 1950s. The band split up in the 1960s. But nostalgia for "The Great Pretender", "Smoke Gets in Your Eyes", and "Only You" … Continue Reading

Timing of Eureka Moment Dictates Who Gets DNA Patent

By Barry Barnett on Posted in Intellectual Property
Drug giants Sanofi and Pfizer each claimed that it had first dibs on patenting a segment of DNA (deoxyribonucleic acid). Who did have first dibs turned on the date when each of them not only isolated the DNA sequence but also "appreciated" what it had isolated. Sanofi-Aventis v. Pfizer Inc., No. 12-1345, slip op. 9 (Fed. … Continue Reading
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