Posts Tagged: "appeal"

Christopher Gordon, under the pseudonym “Randall,” released the Honey Badger movie in 2011 and the 3:20-long video has been viewed more than 89 million times. Gordon filed trademark applications to cover the use of the video’s well-known phrase Honey Badger Don’t Care in various classes including audio books, greeting cards, mugs and clothing. In 2012, Gordon hired a licensing agent who contacted American Greetings, the parent company of co-defendant Papyrus-Recycled Greetings, to discuss a potential licensing deal but those parties never agreed to a deal. Beginning in June 2012, the defendants released a series of seven greeting cards, including birthday, Halloween and election cards, which made use of the trademarked phrase Honey Badger Don’t Care and another well-known phrase from the video, Honey Badger Don’t Give A S—.

On Wednesday, August 15th, the Court of Appeals for the Federal Circuit issued a precedential decision in BSG Tech LLC v. BuySeasons, Inc. which upheld a decision by the district court to invalidate patent claims owned by BSG Tech as patent-ineligible under 35 U.S.C. § 101. The Federal Circuit panel of Circuit Judges Jimmie Reyna, Evan Wallach and Todd Hughes found that the district court correctly determined that patent claim asserted by BSG Tech were invalid as abstract ideas lacking any inventive step under the Alice/Mayo framework… The only allegedly unconventional feature of BSG Tech’s claims was the requirement that users are guided by summary comparison usage information, which was simply a restatement of the abstract idea identified under the first step of Alice/Mayo

“In sum, Defendants showed that epitaxially growing a monocrystalline layer directly on an amorphous layer would have required undue experimentation—indeed, that it is impossible,” the Federal Circuit found. The appellate court also found that Boston University created its own enablement problem by seeking a construction for “a non-single crystalline buffer layer” which included a purely amorphous layer. Along with reversing the district court’s denial of JMOL, the Federal Circuit dismissed-as-moot Boston University’s cross-appeal of the district court’s denial of attorney’s fees and enhanced damages.

On Friday, June 1st, the Court of Appeals for the Federal Circuit issued a decision in In re: Durance striking down a decision by the Patent Trial and Appeal Board (PTAB) that affirmed a patent examiner’s obviousness rejection of a microwave vacuum-drying apparatus and associated method. The Federal Circuit panel consisting of Judges Alan Lourie, Jimmie Reyna and Raymond Chen…

On Wednesday, May 30th, the Court of Appeals for the Federal Circuit entered a decision in Tinnus Enterprises v. Telebrands Corporation which reversed and remanded an earlier decision by the Patent Trial and Appeal Board (PTAB) to invalidate a patent covering the award-winning Bunch O Balloons toy developed by inventor Josh Malone. The Federal Circuit panel of Circuit Judges Kathleen…

The low allowance rates and nearly blanket eligibility-rejection issuance in the business-method art units is not without consequence. Beyond disincentivizing innovation, the examination of business-method applications is protracted as the workload at the PTAB is increased. Not only do these results affect the PTO’s operation of handling matters currently at issue, but it results in an unjust postponement of guidance. After the recent adjustments of the eligibility thresholds, examiners and applicants alike are awaiting more precedence to know what can be patent eligible in this space as new patent applications are filed. However, the PTAB has been slow to respond to business-method appeal briefs (surely due to the high volume of appeals), such that decisions are frequently issued at a time when the applicable case law has shifted relative to the filings of the correspond appeal briefs.

The recent Federal Circuit decision in Elbit Systems of America, LLC v. Thales Visionix, Inc. affirmed a final written decision issued by the Patent Trial and Appeal Board (PTAB), which upheld some claims in an inter partes review (IPR) proceeding challenging the validity of Thales’ U.S. Patent No. 6474159, titled Motion-Tracking and issued in November 2002. The patent claims a system for tracking the motion of an object relative to a moving reference frame using a first inertial sensor mounted on the tracked object, a second inertial sensor mounted on the moving reference frame and an element that receives signals from both inertial sensors to determine an orientation of the object relative to the moving reference frame. The resulting invention enables the use of inertial head-tracking systems for platforms including flight simulators and other vehicular applications.

The American Bar Association filed an amicus brief today with the United States Court of Appeals for the Federal Circuit, arguing that a provision of U.S. patent law does not give the government the right to be reimbursed for its lawyers’ expenses regardless of which side prevails in a court appeal of an administrative patent decision… The Federal Circuit split 2-1 in determining that the language approved by Congress includes lawyer fees for the USPTO win or lose. The ABA’s amicus brief supports the petition by Nantkwest Inc., which owns the cancer treatment patent application in question, and asks the full Federal Circuit to reverse that decision.

D’Agostino’s appeal challenges PTAB authority to entertain invalidity on remand as no part of the IPR statute found in the America Invents Act (AIA) permits PTAB action more than 18 months after institution… The Federal Circuit remanded the reversed claim construction to the PTAB for further proceedings “not inconsistent with [the Court’s] opinion.” On appeal to the Federal Circuit, D’Agostino argued that the PTAB lacked the jurisdiction to entertain unpatentability on remand as no part of the IPR statute found in the America Invents Act (AIA) of 2011 permits Board action more than 18 months after institution, rendering that decision on remand ultra vires.

Doubtless there are some manufacturing firms, such as Telebrands, who are great endorsers of inter partes review (IPR) proceedings at the Patent Trial and Appeal Board (PTAB) and how that agency has found in favor of copy-cats even as federal courts have repeatedly issued injunctions and found in favor of the inventor of an award winning toy (see here and here).But the manufacturing sector did not all line up in favor of Greene’s Energy Group, although most did. Nevertheless, given that manufacturing firms tend to license patents and do not necessarily develop their own technologies, it is informative to see how this sector feels that the Supreme Court should decide Oil States.

A jury verdict recently entered into a patent infringement case in the Northern District of Texas found that Japanese gaming giant Nintendo infringed upon a patent asserted by Texas-based medical tech firm iLife Technologies Inc. In the verdict, the jury agreed that iLife proved that it was owed $10.1 million in a lump sum royalty for the sales of a series of games for the Wii U console. The jury also found that Nintendo didn’t prove invalidity of the asserted patent. The jury found that sales of Nintendo’s Wii U games including Wii Sports, Wii Sports Resort, Wii Club Sports and Mario Kart 8, infringed upon claim 1 of U.S. Patent No. 6864796.

As the old saying goes: Ignorance of the law is no excuse. So there seems to be no good reason that the Examining corps’ inability to apply the law to the facts in ex parte appeals should be costing applicants this much money yearly. We should not have 2X higher reversal rates for novelty and obviousness than statutory subject matter. However, until something changes about how the USPTO decides to take cases to the board, it is apparent that patent applicants will continue to have to be patient and pay.

According to Ukrainian regulations, there may be several owners for one mark. But what if one of such owners decides to execute the exclusive right without the consent of the other owners? Eventually, disputes may arise, and Ukrainian courts happened to resolve one of such cases; AQUALIFT v. National Center for Medical Technologies LLC (NCMT) and NIC.UA.

On Monday, August 7th, a judicial panel of the U.S. Court of Appeals for the Federal Circuit entered a decision in Personal Audio, LLC v. Electronic Frontier Foundation which is being widely hailed by the anti-patent crowd. The three judges on the panel issued a majority opinion, authored by Circuit Judge Pauline Newman, upheld a final written decision issued by…