The U.S. Patent and Trademark Office (USPTO) allows for a trademark application to be filed on an “Intent to Use” basis to establish a priority date before the mark is actually “used in commerce.” However, such use in commerce must happen before the trademark application will register with the USPTO. If your company markets pharmaceutical cosmetics, beauty devices, or other fashion related goods or services that require regulatory approval, the use in commerce requirement presents unique issues.
CUSTOMEDIA TECHNOLOGIES, LLC V. DISH NETWORK CORPORATION
Per Curiam Orders. Appeals from the Patent Trial and Appeal Board.
Summary: The Federal Circuit’s recent decision in Arthrex finding that Administrative Patent Judges’ (APJs) appointments violated the Appointments Clause is not a basis to vacate and remand a Patent Trial and Appeal (PTAB) decision, unless the party raised an Appointments Clause challenge in the opening brief or preceding motions.
IN RE: DAVID FOUGHT, MARTIN CLANTON Before Newman, Moore, and Chen. Appeal from the Patent Trial and Appeal Board. Summary: A preamble description of the invention as a “travel trailer” was…
IDENIX PHARMACEUTICALS LLC v. GILEAD SCIENCES INC.
Before Prost, Newman, and Wallach. Appeal from the United States District Court for the District of Delaware.
Summary: Synthesizing and screening tens of thousands of compounds to identify those within the scope of the claims was undue experimentation that rendered claims invalid for lack of enablement.
LIQWD, INC. v. L’OREAL USA, INC.
Before Reyna, Hughes, and Stoll. Appeal from the Patent Trial and Appeal Board.
Summary: Evidence of copying was relevant to nonobviousness even though the copied feature came from an unpublished patent application rather than a product.
The USPTO has released updated subject matter eligibility guidance that incorporates comments on the changes made in January 2019. The guidance is 22 pages long, with three appendices and 87 footnotes. Below are a few of the more salient…
FRAUNHOFER-GESELLSCHAFT v. SIRIUS XM RADIO INC.
Before Dyk, Linn, and Taranto. Appeal from the District of Delaware.
Summary: Contract interpretation must be applied in determining whether a sublicense survives termination of the main license.
HZNP Medicines LLC, Horizon Pharma USA, Inc. v. Actavis Laboratories UT, Inc.
Before Prost, Newman, and Reyna. Appeal from the District Court for the District of New Jersey.
Summary: Claims using “consisting essentially of” to define an open-ended list of ingredients are indefinite, where the basic and novel property of the invention introduces an improper zone of uncertainty.
B.E. TECHNOLOGY, L.L.C. v. FACEBOOK, INC.
Before Lourie, Plager, and O’Malley. Appeal from the United States District Court for the Western District of Tennessee.
Summary: A decision on the merits is not a prerequisite to a finding of prevailing party status.
OSI PHARMACEUTICALS, LLC v. APOTEX INC
Before Stoll, Newman, and Taranto. Appeal from the Patent Trial and Appeal Board.
Summary: A pharmaceutical company’s statement touting the completion of Phase I safety trials for FDA approval is not sufficient to show that a skilled artisan would have had a reasonable expectation of success in combining the prior art.
