Knobbe/Martens: Intellectual Property Law

Shuchen Gong

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March 27, 2019 Shuchen Gong and Nicole R. Townes

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

Summary: Where the preamble of a claim merely identifies an intended use and does not impose a structural requirement, and only the body of the claim identifies an improvement, the applicant’s choice not to use the transitional phrase “wherein the improvement compromises” is also a “powerful reason” to deny the preamble any limiting effect.  Further, lack of diligence in reducing an invention to practice cannot be inferred when the invention was put into someone else’s hands for needed testing and there was diligent oversight. 


Burlesque Designs for the Eye: Makeup Designs in Dispute

February 15, 2019 Shuchen Gong and Jonathan Hyman

On December 13, 2018, Face Lace Ltd., founded by makeup artist Phyllis Cohen to provide ready-to-wear makeup designs, filed suit in the Central District of California against Bare Escentuals Inc. d/b/a Buxom Cosmetics. Face Lace’s complaint alleged copyright infringement and trade dress infringement under the Lanham Act.



Abbott Obtains FDA Approval for HeartMate 3 Device

December 6, 2018 Shuchen Gong

Abbott announced on October 19, 2018 that its HeartMate 3 Left Ventricular Assist Device (LVAD) has received U.S. Food and Drug Administration (FDA) approval as a destination therapy for people living with advanced heart failure. Physicians now can offer the HeartMate 3 system to patients not eligible for a transplant. The HeartMate 3 LVAD can serve as a permanent implant, allowing patients to live with the device for the rest of their lives.

Federal Circuit Weighs In on Converse's Midsole Trade Dress

November 27, 2018 Shuchen Gong and Jeff Van Hoosear

On October 30, 2018, the Federal Circuit weighed in on Converse’s Chuck Taylor trade dress infringement lawsuit. As reported in If the IP Fits, Wear It: IP Protection For Footwear – a U.S. Perspective, Converse filed over 30 lawsuits in the U.S. District Court for the Eastern District of New York in October of 2014, alleging trademark infringement of its famous Chuck Taylor designs by Fila, Tory Burch, Ralph Lauren, and Aldo, among others. Some of the district court cases settled in a few months, while others lasted over two years.



October 30, 2018 Shuchen Gong and Mark Kachner

Before Judges Dyk, O’Malley, and Hughes. Appeal from the United States International Trade Commission.

Summary: Registered trade dress carries a presumption of secondary meaning only prospectively from the date of registration.  Prior to the date of registration, the mark owner must show acquired secondary meaning prior to the first infringing use for each accused infringer.


Damaged Hair Care Products: The Root of the Problem

September 25, 2018 Shuchen Gong and Nicole R. Townes

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.


Cyberattacks and the Value of Medical Data

August 1, 2018 Shuchen Gong

On July 20, 2018, SingHealth, a Singapore healthcare institution consisting of four public hospitals, five national specialty centers and a network of nine polyclinics, reported that it had been the target of a cyberattack resulting in the information of around 1.5 million individuals being compromised.

Trump’s China Tariffs on Fashion & Beauty Products and Requests for Exclusion

July 30, 2018 Shuchen Gong and Loni Morrow The Office of the United States Trade Representative (USTR) released a report on an investigation of China’s acts, policies, and practices related to technology transfer, intellectual property (“IP”), and innovation. The report noted several stakeholders’ concerns, such as trade secret theft, bad faith trademarking, patent infringement by Chinese government-owned entities, inadequate IP enforcement mechanisms, substantial obstacles to civil enforcement, inconsistent criminal and administrative enforcement, and widespread counterfeiting, and the distribution of counterfeit products over the internet. Specifically, the report noted that counterfeiting occurs in a wide range of product categories, including clothing, footwear, and formalwear.



July 17, 2018 Shuchen Gong and Karen M. Cassidy

Before Prost, Moore and Reyna. Appeal from the District Court of Delaware.

Summary: A limitation in the specification should not be imported into a claim when there is no evidence that the limitation is important, essential or critical.


Can Ear Plugs Tune Out Color? Bright Green Color For Ear Plugs Not Functional

June 21, 2018 Shuchen Gong and Nicole R. Townes

Moldex-Metric, Inc. filed a trademark infringement lawsuit against McKeon Products.  Moldex-Metric asserted that McKeon infringed its unregistered trade dress consisting of a bright green color for foam ear plugs by using a similar green color for ear plugs.


March 27, 2018 Shuchen Gong and Adam Powell

Before O’Malley, Plager and Taranto. Appeal from the U.S. District Court for the Northern District of California, Judge William H. Alsup.

Summary: Historical findings of fact relevant to copyright fair use can be resolved by a jury, but the district court must resolve all inferences drawn from those facts and the ultimate conclusion of fair use. 


23andMe Receives First FDA Authorization for Direct-to-Consumer Cancer Risk Genetic Test

March 23, 2018 Shuchen Gong and Michael L. Fuller

On March 6, 2018, 23andMe, Inc. received the first-ever FDA authorization for a direct-to-consumer genetic test that analyzes gene mutations to help predict a subject’s risk of developing specific cancers. 23andMe already sells diagnostic kits by mail that determine a variety of gene profiles from a consumer.

Seasick Trademarks Walking the Plank? Don’t Let Yeezy Make You Queasy

March 1, 2018 Shuchen Gong and Ian W. Gillies

Successful brands from the United States, and particularly those branded by U.S. celebrities, are often received with similar enthusiasm in other parts of the world.  Recently, YEEZY shoes designed by Kanye West made their much anticipated debut to sneaker-heads in China.  These consumers were delighted when a physical YEEZY store opened in Wenzhou.  There was one problem­ – all the shoes in the store appeared to be knockoffs, replicas, or complete counterfeits of the genuine YEEZY products.

Microbot Medical to Acquire CardioSert’s Technology

January 8, 2018 Shuchen Gong

Microbot Medical Inc. announced that it entered into an agreement with CardioSert Ltd. to acquire CardioSert’s patented guidewire technology, including R&D information, technical know-how, and intellectual property.

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