Before Wallach, Linn, and Hughes. Appeal from the Trademark Trial and Appeal Board.

Summary: To determine whether a mark is generic, the TTAB must first properly identify the genus of the goods at issue. The genus must be based on the identification of goods set forth in the application, regardless of what the record may reveal as to the particular nature of the subject goods.

Before Prost, Moore, and Reyna.  Appeal from the Patent Trial and Appeal Board

Summary: Removing the priority claim of one application in a chain can affect the ability of pending and subsequently filed applications to claim priority to earlier applications. 

he United States Food and Drug Administration recently announced approval for Teva Pharmaceuticals to market generic epinephrine autoinjectors.  According to the press release, Teva’s autoinjectors are the first generic versions of Mylan’s EpiPen® and EpiPen Jr ® to receive FDA approval.

In a recent report, the U.S. Department of Health & Human Services (HHS) Office of the Inspector General (OIG) recommended that the U.S. Food & Drug Administration (FDA) include cybersecurity review as a greater part of the premarket review process for medical devices. In particular, the report suggests including cybersecurity documentation as a criterion in the FDA’s Refuse-To-Accept (RTA) checklist, using presubmission meetings to address cybersecurity questions, and including cybersecurity as an element of the FDA’s Smart template.

Before Wallach, Linn and Hughes.  Appeal from the United States District Court for the Southern District of New York. 

Summary: In determining whether to award sanctions under 28 U.S.C. § 1927, the domain of colorable claims is broader when the law is unsettled.

Before Prost, Bryson, and O’Malley.  Appeal from the United States District Court for the Western District of Wisconsin.

Summary: (1) To uphold a jury verdict of infringement, evidence must support an inference that claim limitations are at least sometimes met by the accused product; and (2) when a patent repeatedly and consistently characterizes a claim term in a particular way, the term should be construed consistent with that characterization.

Before Lourie, Clevenger, and Stoll.  Appeal from the Patent Trial and Appeal Board.

Summary: 35 U.S.C. § 315(b), which prohibits the Board from instituting an IPR based on a petition filed more than one year after the date on which the petitioner is served with a complaint, is fully applicable to complaints that are involuntarily dismissed by the court.

At the recent OCBA Seminar, partner Lauren Katzenellenbogen, “Panel on IP Valuation: How Much is it Worth? How Much Can You Get? How Can You Protect It?” View and download…

On September 7, 2018, Olaplex, LLC and LIQWD, INC. (collectively, “Olaplex”) filed suit in the United States District Court for the Southern District of Florida against Verbena Products, LLC d/b/a BEAUTYVICE and Robert Roque (collectively “Beautyvice”) based on Beautyvice’s sales of Olaplex hair care products.  Olaplex alleges that the products sold by Beautyvice do not bear certain codes that Olaplex includes on its products.

The medical device and related markets have shown some growth recently.  For example, IHI, an iShares U.S. Medical Devices ETF, has a total return of about 24% year-to-date in 2018.   In the same time period, the S&P 500 has a return of about 8%.  The IHI fund has an average annual return in the last ten years of about 14% compared to about 10.7% for the S&P 500.  According to MarketWatch, the IHI fund invests in “medical-products companies that deliver the tubes, pumps and tools that are necessary to make medical facilities function. . . .  While some of the products offered by these companies are indeed high-tech, such as artificial heart valves, many are less glamorous, such as catheters and blood-pressure cuffs. But despite their flash, these items are staples, and medical offices and hospitals nationwide remain big revenue sources for these companies.”