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In the realm of software development, the Open-Source movement emphasizes a decentralized development model predicated on making source code freely available for peer-to-peer collaboration and academic study. When copyright holders of open source software grant such broad licenses to the public, one purported advantage is that increased collaboration results in increased knowledge and discovery.

About 40 years ago, marketing strategists Al Ries and Jack Trout offered the world a way to think about making a brand memorable. The best way to be remembered is to be first into your prospect’s mind representing a clear perception. For many products, the brand name has become synonymous with their function. It’s no accident they were also first. People love what is new. One of the “new” trends is based on the current pandemic – coronavirus/COVID-19. However, not all words and phrases can function as a trademark.

On April 10, personal protective equipment (“PPE”) manufacturer 3M filed suit against Performance Supply LLC for trademark infringement, deceptive practices, and false advertising. In its complaint, 3M alleges that Performance Supply offered to sell several million N-95 respirator masks to New York’s Office of Citywide Procurement in March. An exhibit filed with the complaint shows a price quote offered to the city, with Performance Supply quoting seven million masks at between $6.05 to $6.35 per mask. In contrast, 3M’s suggested retail price for the respirators is between $1.02 and $1.31 per mask. Beyond mere price gouging, Performance Supply is not an authorized distributor of 3M masks and is not affiliated with 3M in any way. “To dupe city officials into thinking Performance Supply was an authorized distributor, the lawsuit says, the company used the 3M trademark throughout the price quote document and technical specification sheets.”

IN RE: CHRISTOPHER JOHN RUDY

Before Prost, O’Malley, and Taranto. Appeal from the Patent Trial and Appeal Board.

Summary: The Patent and Trademark Office’s October 2019 Revised Patent Subject Matter Eligibility Guidance cannot be used to modify or supplant case law regarding patent eligibility requirements.

ARGENTUM PHARM. LLC v. NOVARTIS PHARM. CORP.

Before Lourie, Moore, and Reyna. Appeal from the U.S. Patent and Trademark Office, Patent Trial and Appeal Board.

Summary: A party lacks standing to appeal an adverse IPR decision if it cannot show an injury attributable to the decision.

ROMAG FASTENERS, INC. v. FOSSIL, INC.

Before the Supreme Court of the United States. On Writ of Certiorari to the United States Court of Appeals for the Federal Circuit.

Summary: Trademark owners are not required to show willfulness as a precondition to an award of infringer’s profits.

In October 2019, professional photographer Michele Eve Sandberg filed a complaint against musical trio Jonas Brothers (both as an entity and as individuals) for unauthorized use of photos Sandberg snapped of the band during their “Happiness Begins” tour. Sandberg registered her photos in the U.S. Copyright Office. The Jonas Brothers used Sandberg’s photos on their tour marketing websites and social media platforms, but did not obtain a license to use them. Sandberg alleges copyright infringement in her complaint, claiming the Jonas Brothers copied her work without permission and profited from it. She seeks both monetary damages and an injunction to stop the use of her photographs without her consent.

HOLOGIC, INC. v. MINERVA SURGICAL, INC.

Before Wallach, Clevenger, and Stoll. Appeals from the United States District Court District of Delaware.

Summary: The doctrine of assignor estoppel precludes an assignor from challenging the validity of a patent in district court, but not at the Patent Office.

BIOGEN INTERNATIONAL GMBH v. BANNER LIFE SCIENCES LLC

Before Lourie, Moore, and Chen. Appeal from the U.S. District Court for the District of Delaware

Summary: If a claimed product is not the active ingredient of an FDA-approved product, or an ester or salt of that active ingredient, there is no patent term extension available under the Hatch-Waxman Act (35 U.S.C. § 156).

CARDIONET, LLC v. INFOBIONIC, INC

Before Dyk, Plager, and Stoll. Dyk dissenting in part. Appeal from the District of Massachusetts.

Summary: Alice step one is a threshold inquiry that can be resolved by analyzing the intrinsic record without considering the prior art.

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