Federal Circuit Reins In Early Dismissals Based on Patent Liabilities

In a span of less than a week in February, the Federal Circuit issued two precedential decisions that may impact the willingness of district courts to resolve patent eligibility issues on early motions. First, on February 8, 2018, the Federal Circuit issued its opinion in Berkheimer v. HP, Inc., vacating a district court’s summary judgment …

Get Your Argument Right the First Time!

In a most recent opinion, the Federal Circuit makes it clear that unless it chooses to exercise its waiver rights under 37 CFR 42.5(b), the Patent Trial and Appeal Board (“the Board”), consistent with the PTO guidelines, is obligated to dismiss new arguments and evidence presented for the first time during the oral argument phase …

Claim Construction: A Hard Pill to Swallow for the Unwary

The process of construing the disputed terms of a patent is a seminal stage in many patent cases. The outcome-determinative nature of a claim construction order leads many parties to stipulate to a judgment of infringement or non-infringement so the disadvantaged party may appeal the unfavorable construction. A recent claim construction order by the Delaware …

The Fate of WHOIS Under the GDPR: Privacy and Safety on the Internet

As of May 25, 2018, a new EU regulation will make the collection of data and tracking of online selling activity illegal – potentially shielding would-be counterfeiters and trademark infringers from detection in the purchase and sale of counterfeit goods. By Anne Aikman-Scalese Privacy advocates hail the new EU General Data Protection Regulation (GDPR) as …

Stone Brewing Sues MillerCoors for Trademark Infringement

Stone Brewing Co., the ninth largest independent craft brewery in the United States, has taken aim at MillerCoors LLC and Molson Coors Brewing Company, filing suit in the United States District Court, Southern District of California for trademark infringement, false designation of origin, trademark dilution, unfair competition and declaratory relief. On Monday afternoon, Greg Koch, …

From “tequila” to “TEQUILA®” – Registering a Generic Term

The trademark lawyers sternly warn us: “Don’t let your trademark become generic!” They tell us horror stories: ASPIRIN was once a trademark, but became generic from improper use. Same thing for ESCALATOR and INTERNET. Some trademark owners implement aggressive marketing campaigns to prevent this terrible fate: “It’s KLEENEX® brand facial tissue,” or “VELCRO® brand hook-and-loop …

Craft Beer Trademarks: Innovative, Inspiring and…Infringing?

If you’re thirsty and of legal drinking age, you are likely within a stone’s throw of being able to enjoy the cadre of remedial tonics offered at a craft brewery. There are now over six thousand breweries in the United States, a new record, with over 80 percent of American adults living within 10 miles …

Monetize Your Meme: “Grumpy Cat” Wins Copyright and Trademark Verdict

For those unfamiliar, Grumpy Cat is a “viral meme” of a “stern-looking house cat named Tardar Sauce.”1 A former Time Warner cable technician first posted the photo of his sister’s “Grumpy Cat” on Reddit in September 2012.2 At least four copyright registrations and a trademark registration related to Grumpy Cat have been registered in the …