Knobbe/Martens: Intellectual Property Law

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A “Substantially Equivalent” Disclosure May Satisfy the Written Description Requirement Published
Friday, August 16, 2019
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NALPROPION PHARMACEUTICALS, INC. v. ACTAVIS LABORATORIES FL, INC.

Before Prost, Lourie and Wallach. Appeal from the U.S. District Court for the District of Delaware. 

Summary: A “substantially equivalent” disclosure may satisfy the written description requirement where the “equivalent disclosure” relates only to resultant parameters rather than operative claim steps.

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Amended Complaint May Relate Back to Original Complaint Despite Asserting Different Patents Published
Friday, August 16, 2019
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ANZA TECHNOLOGY, INC. v. MUSHKIN, INC.

Before Prost, Newman, and Bryson.  Appeal from the United States District Court for the District of Colorado.

Summary:  Patent infringement claims in an amended complaint may relate back to the date of an original complaint that asserted different patents if the facts underlying the original infringement claims gave notice to the defendant of the nature of the allegations in the amended complaint.

 

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Failure of ITC to Follow Its Own Rules May Constitute Harmless Error Published
Thursday, August 15, 2019
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SWAGWAY, LLC v. ITC [REVISED OPINION - PRECEDENTIAL]

Before Dyk, Mayer, and Clevenger.  Appeal from the International Trade Commission.

Summary:  Although the ITC must strictly comply with its rules, failure to do so may constitute harmless error.  Additionally, the Federal Circuit withdrew its prior holding that ITC decisions on trademark issues do not have preclusive effect.

 

Resources
Where's the Beef? Establishing Fame in Trademark Disputes Published
Wednesday, August 14, 2019
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A decision from the Federal Circuit clarified how the USPTO should analyze evidence of fame under the fifth DuPont factor.  The decision sheds light on how fashion brands can establish that their marks are famous through advertising, advertising channels, and references to the brand in popular culture.

On April 8, 2013, Greater Omaha Packing Co., Inc. (“GOP”) filed an application to register the mark “GREATER OMAHA PROVIDING THE HIGHEST QUALITY BEEF” and design shown below, having Serial No. 85/897,951.

 

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Disclaimed Patent Claims Fail to Give Rise to an Article III Case or Controversy Published
Wednesday, August 14, 2019
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SANOFI-AVENTIS U.S., LLC v. FRESENIUS KABI USA, LLC

Before Lourie, Moore, and Taranto.  Appeal from the United States District Court for the District of New Jersey.

Summary: District courts lack the authority to declare disclaimed patent claims invalid because no case or controversy exists with respect to such claims.  Additionally, a case or controversy must exist at the time a court enters judgment, and not only at the time a complaint is filed.

 

Resources
Jurisdiction over Foreign Entities and Foreign Sovereigns Published
Monday, August 12, 2019
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GENETIC VETERINARY SCIENCES v. LABOKLIN GMBH & CO. KG

Before Wallach, Hughes, and Stoll.  Appeal from the Eastern District of Virginia.

Summary:  (1) If a foreign entity is not subject to jurisdiction in any state’s courts of general jurisdiction, but the claims against the entity arise under federal law and the exercise of jurisdiction comports with due process then personal jurisdiction may exist over a foreign entity in any federal court in the U.S.  (2) A foreign sovereign that obtains a U.S. patent, engages in licensing the patent and/or threatens enforcement of the patent may be subject to jurisdiction of U.S. courts under the “commercial activity” exception to the doctrine of sovereign immunity.

 

Resources
The Tangential Exception to Prosecution History Estoppel Published
Monday, August 12, 2019
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ELI LILLY AND COMPANY v. HOSPIRA, INC.

Before Lourie, Moore, and Taranto.  Appeal from the District Court for the Southern District of Indiana.

Summary: A narrowing claim amendment does not necessarily surrender all equivalents of the claim element if the prosecution history shows that an equivalent is merely tangentially related to the amendment.

 

Resources
Federal Circuit Finds That a Variant Polypeptide Sequence Infringes Under the Doctrine of Equivalents Published
Monday, August 12, 2019
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Ajinomoto Co., Inc. vs. CH Cheiljedang Corp. (2018-1590, 2018-1629)

In a pair of cross-appeals from the International Trade Commission, the Federal Circuit affirmed the Commission’s ruling that one of CJ CheilJedang Corp.’s engineered bacterial strains infringed Ajinomoto’s patent, while another strain did not infringe.

Ajinomoto’s patent claim is related to methods of cultivating E. coli bacteria that have been genetically engineered to increase their production of aromatic L-amino acids during fermentation.  The claim recites, among other limitations, (1) a protein that “consists of the sequence of SEQ ID NO: 2” and (2) enhancing the activity of the protein by “replacing the native promoter [for the protein] … with a more potent promoter.”

 

Resources
Arguments During Prosecution Can Limit the Scope of a Coined Term with No Ordinary and Customary Meaning Published
Monday, August 12, 2019
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IRIDESCENT NETWORKS, INC. v. AT&T MOBILITY, LLC

Before Prost, Reyna and Taranto. Appeal from the U.S. District Court for the Eastern District of Texas

Iridescent sued AT&T and Ericsson for infringement of a patent relating to network communication that provides guaranteed bandwidth, while minimizing data delay and loss. 

Resources
Court Upholds $4.3 Million of Jury Verdict Against Depuy Synthes Published
Monday, August 12, 2019
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Acantha LLC sued Depuy Synthes Sales Inc. and DePuy Synthes Products, Inc., alleging that Depuy’s Vectra and Zero-P VA products infringe U.S. Reissued Patent No. RE 43,008.  The patent relates to an orthopedic implant used for joining bone segments.

A jury found that all accused products infringed and awarded over $8.2 million in damages.  Depuy moved for judgment as a matter of law that it did not infringe.

 

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