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Nintendo Wins Summary Judgment Based on Doctrine of Prosecution History Estoppel

By Yaping Zhang – Edited by Stacy Ruegilin

On July 17, 2015, the Northern District Court of California granted a summary judgment motion in Nintendo’s favor in a patent suit, construing disputed term in accordance with Nintendo’s interpretation and finding that the patent had not been infringed. The court based its decision on prosecution history estoppel, highlighting differences between the processes of obtaining and enforcing a patent.

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District Court Holds that Internet-Based Television Provider, FilmOn X is Entitled to a Compulsory License

By Anne Woodworth – Edited by Henry Thomas

The U.S. District court for the Central District of California ruled that an online streaming service that rebroadcasted network television fit the definition of a cable company, and was entitled to compulsory licensing under § 111 of the Copyright Act.  The order relied on the Supreme Court’s Aereo decision, which held that internet streaming was fundamentally the same as cable. The ruling conflicts with a Second Circuit case decided on similar facts, and is immediately appealable.

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Data Breach Victims, Rejoice: Seventh Circuit Finds that Threat of Injury is Sufficient for Article III Standing in Data Breach Class Actions

By Brittany Doyle – Edited by Ariane Moss

Last Monday, the Seventh Circuit Courto of Appeals ruled that victims of a data breach had standing to pursue a class action even when they had not suffered direct financial harm as a result of the breach or when they had already been compensated for financial harm resulting from the breach. The opinion reversed a contrary district court decision, which the Seventh Circuit said had incorrectly read the Supreme Court’s 2013 decision in Clapper v. Amnesty International USA.

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How Far Can Law Enforcement Go When Gathering Email Evidence? Former Gov. Scott Walker Employee Files Petition for Writ of Certiorari

By Kasey Wang – Edited by Ariane Moss

Kelly Rindfleisch is serving a six-month sentence for misconduct in public office while working for then-County Executive Scott Walker. Rindfleisch appeals to the U.S. Supreme Court, claiming that the government violated her Fourth Amendment rights while searching her emails for evidence for a different case.

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Russia’s “Right To Be Forgotten” and China’s Right To Be Protected: New Privacy and Security Legislation

By Brittany Doyle – Edited by Ken Winterbottom

The legislatures in Russia and China took steps this month to tighten regulations over Internet companies with access to user data. In Russia, President Vladmir Putin signed a law ensuring a “right to be forgotten” reminiscent of the European Court of Justice’s right to be forgotten ruling of May 2014. And in China, the National People’s Congress released a draft cybersecurity bill that would formalize and strengthen the State’s long-standing regulation of websites and network operators.

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Garmin International, Inc. et al. v. Cuozzo Speed Technologies LLC

By James Grace – Edited by Kathleen McGuinness
Garmin Int’l, Inc. et al. v. Cuozzo Speed Techs. LLC, IPR2012-00001 (P.T.A.B. 2013)

Slip Opinion hosted by PatentlyO

Photo By: Kenny LouieCC BY 2.0

The Patent Trial and Appeal Board (“PTAB”), in its first inter partes review under 35 U.S.C. 311, held in favor of the petitioner, a GPS technology developer, Garmin. Garmin Int’l, Inc. et al. v. Cuozzo Speed Techs. LLC, IPR2012-00001 (P.T.A.B. 2013) at 49 (“Decision”). PTAB cancelled three claims of Cuozzo Speed Technologies LLC’s (“Cuozzo’s”) U.S. Patent No. 6,778,074 (“the ’074 patent”), “Speed limit indicator and method for displaying speed and the relevant speed limit,” finding them invalid on grounds of obviousness under 35 U.S.C. 103. Id. PTAB also denied Cuozzo’s Motion to Amend the ’074 patent to substitute the three impugned claims. Id.

PatentlyO provides an overview of the case and speculates how PTAB’s decision may threaten Cuozzo’s ongoing infringement action against Garmin and Chrysler in the District Court of New Jersey. Complaint, Cuozzo Speed Techs. LLC v. Garmin Int’l, Inc. et al., No. 2:12-cv-03623 (D.N.J. June 15, 2012). (more…)

Posted On Nov - 19 - 2013 Comments Off READ FULL POST

By Jennifer Garnett – Edited by Abhilasha Nautiyal

Photo By: Robert ScobleCC BY 2.0

Earlier this month, Mike Hearn of Google’s Security Department posted online that Google has successfully encrypted the data traffic between its servers. This undoes the National Security Agency’s (“NSA”) work in creating the surveillance program “MUSCULAR,” which taps into the connections between Google and Yahoo’s private data centers.

On October 30, the Washington Post released another wave of information attributed to Edward Snowden that described how the NSA had “broken into” the communication links between Google and Yahoo’s private data centers under a program codenamed MUSCULAR. The NSA is reported to operate this program jointly with its British counterpart, the Government Communications Headquarters. The tapping of these communication fibers gives the NSA access to millions of users’ data, including both metadata and content, regardless of whether or not they were suspected terrorists or criminals.

RT quotes Google’s chief legal officer, David Drummond as being “outraged” over the program, explaining that they have “long been concerned” about this kind of activity, and have been slowly extending encryption across Google’s myriad of services in an attempt to protect its users. Drummond’s statement was made in response to the Washington Post report of October 30 and continues, “[w]e are outraged at the lengths to which the government seems to have gone to intercept data form our private fiber networks, and it underscores the need for urgent reform.”

According to Ars Technica, Google has had a full-encryption initiative for over a year, but accelerated the initiative in June after Snowden leaked the news of the NSA and FBI’s joint “PRISM” program. Under this program, the NSA could gain front-door access to users’ data by demanding data related to certain keywords or search terms. This program was previously covered by the Digest. (more…)

Posted On Nov - 18 - 2013 1 Comment READ FULL POST

J.W. Spear & Sons v. Zynga Inc.
By Michelle Goldring – Edited by Jennifer Wong

J.W. Spear & Sons v. Zynga Inc., [2013] EWHC 3348 (Ch)
Opinion

Photo By: Brian BurgerCC BY 2.0

The England and Wales High Court of Justice, Chancery Division held that infringement of Scrabble’s trademarked name did not occur when Zynga titled its games “Scramble” and “Scramble with Friends.” J.W. Spear & Sons v. Zynga, Inc., [2013] EWHC 3348 (Ch) at 147. It also held that the word “Scramble” was used to refer to games of that type and therefore did not infringe on Mattel’s trademark of that word. Id. at 158–59. However, the court also expressed concern that the “Scramble” logo created a likelihood of confusion because of its design. Id. at 142.

The court relied largely on Mattel’s previous actions to prove that the company itself did not seem to acknowledge confusion or infringement in a timely fashion to defeat Mattel’s trademark infringement claims. Id. at 46. Beyond its official holding, the court also noted that Zynga’s “Scramble” logo could potentially be misleading to consumers. Id. at 145. In the “Scramble” logo, the “m” is placed on its side such that it resembles the Scrabble name,. Id. at 142.

BBC News and PC Mag provide brief descriptions of the case and the reactions of the parties.  World IP Review gives a fuller description of the judge’s reasoning. (more…)

Posted On Nov - 13 - 2013 Comments Off READ FULL POST

Written By: Charles Colman
Acting Assistant Professor at NYU School of Law

Edited By: Elise Young

“For this most inadequate proof [of consumer recognition], applicant asks us to give it the exclusive right to use red and blue bands on men’s white, ribbed socks — that we cannot do.”

In re Izod, Ltd., 296 F.2d 771, 778 (C.C.P.A. 1961)

 

Summary

 

On September 30, 2013, the Trademark Trial and Appeal Board[1] issued a troubling decision in In re Bottega Veneta Int’l S.a.r.l.[2] Viewed in a broader context, the decision reflects the Board’s growing reluctance to apply the doctrine of “aesthetic functionality”[3] in ex parte prosecution proceedings to bar the issuance of potentially anticompetitive trade-dress[4] registrations. The TTAB gives its imprimatur to the dubious “trade dress” at issue in Bottega Veneta through procedural moves whose novelty and import could easily go unacknowledged — specifically, (1) the Board’s declaration of its intention to resolve “doubts” as to aesthetic functionality in favor of applicants, and (2) the Board’s disposal of concerns about product-design monopolization through reliance on supposedly limiting conditions agreed to by the applicant, but which the federal courts will not observe or enforce. As such, In re Bottega Veneta — despite its technical status as a mere “non-precedential” decision by an agency whose determination can theoretically be revisited by the federal courts — will improperly hinder marketplace competition and restrict creative freedom among designers. (more…)

Posted On Nov - 12 - 2013 Comments Off READ FULL POST

By James Grace

Hershey_Cross_SectionHershey’s Opposes Mars’ Attempt to Register a Snickers’ Cross-Section as a Design Mark

The Trademark Blog reported that Hershey’s has filed a Notice of Opposition with the U.S. Patent and Trademark Office concerning Mars’ application to register a design mark for “a cross-section of a candy bar showing layers within the candy, namely, a middle light brown layer containing several tan colored peanut shapes and a bottom tan layer, all surrounded by a brown layer.” U.S. Trademark Application Serial No. 85441471 (filed Oct. 6, 2011). As one of four grounds of opposition, Hershey’s alleges that the design mark is functional, since the configuration of ingredients is the result of a commonly used  “layering” process for manufacturing candy bars that is efficient and cost effective. Notice of Opposition, ¶¶ 13-17, 23-29.

Medtronic v. Boston Scientific – Oral Argument

On November 5, 2013, the Supreme Court of the United States heard oral argument in the case of Medtronic v. Boston Scientific, No. 12-1128 (U.S. Nov. 5, 2013). Medtronic, a medical device manufacturer, licensed patents from Boston Scientific and subsequently sought declaratory judgment that it did not infringe Boston Scientific’s patents and was therefore not obligated to pay royalties. In a typical patent infringement suit, the patent holder bears the burden of proving infringement, and this burden does not shift in a declaratory judgment action.  However, the United States Court of Appeals for the Federal Court recently held that where a licensee is seeking a declaration of non-infringement, the licensee should bear the burden of proving non-infringement because the patentee is not in a position to counterclaim for infringement. Medtronic v. Boston Scientific, 695 F.3d 1266 (Fed. Cir. 2012), slip op. at 12. Medtronic appealed to the Supreme Court. PatentlyO and SCOTUSblog provide a summary of the issues raised in oral argument before the Court.

Proposed Tweak to Law Would Pull Shield From Generic-Drug Makers

On November 8, 2013, the Food and Drug Administration (“FDA”) issued a press release outlining a proposed rule aimed at speeding up the dissemination of safety information concerning generic drugs. Under the current rules, generic drug manufactures must wait for approval by the FDA and the corresponding brand name manufacturer before updating product labeling to reflect new safety information.  The proposed rule would provide generic manufacturers with the same ability as brand name manufactures to update product labeling based on newly acquired safety information prior to review by the FDA. The Wall Street Journal discusses how the proposed rules relate to the recent of case of Mutual Pharmaceutical Co. , Inc. v. Bartlett , No. 12–142 (U.S. 2013), in which the Supreme Court overturned a $21 million judgment to a woman for injuries allegedly caused by a generic drug.

Posted On Nov - 10 - 2013 Comments Off READ FULL POST
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