Intellectual Property Owners Association

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Past Week’s Daily News™

Monday, 24 April, 2017 12:06 pm

IPO COMMENTS ON CHINA’S DRAFT ANTI-MONOPOLY GUIDELINES

On Friday IPO Executive Director MARK LAUROESCH sent a letter to China’s State Council Anti-Monopoly Commission Office commenting on draft Anti-Monopoly Guidelines on Abuse of Intellectual Property Rights published 23 March. IPO agreed with the draft’s use of the “rule of reason” analytical framework for assessing IP abuse and said some slight modifications would help ensure clarity and avoid misinterpretation. IPO suggested clarifying the guidelines for determining a dominant market position by evaluating, for example, the ability to reduce output and raise prices above competitive levels. The letter said the guidelines should make clear that a cross license by itself is not a restriction on competition and recommended clarifying that private standardization is not prohibited. IPO’s Antitrust and Competition Law, Asian Practice, and Standards Setting Committees assisted with the comments.

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THIS WEEK ON IPO’S IP CHAT CHANNEL — AFTER FORM 18: PLEADING INFRINGEMENT

Tune in to the IP Chat Channel on Thursday, 27 April, at 2:00p.m. ET for After Form 18: Pleading Infringement under the amended Federal Rules of Civil Procedure. Since late 2015, different district courts have embraced a variety of standards to conform with the pleading standard articulated by the U.S. Supreme Court in Bell Atlantic v. Twombly and Ashcroft v. Iqbal. Decisions vary case-to-case according to the patent and product, and from lenient to very strict. At one extreme, a district judge has held that a Form-18-style pleading is sufficient to meet current standards, while at the other end of the spectrum a court has required the plaintiff to allege facts showing infringement of every asserted claim.

Our panelists are NPE co-founder CHRIS FREEMAN (Blackbird Technologies) and law firm patent litigators DAVID DONOGHUE (Holland & Knight LLP) and MARK HANNEMANN (Shearman & Sterling LLP). They will analyze new challenges including defendants’ need to reply to a detailed complaint with little time to prepare affirmative defenses such as invalidity. The panelists will also discuss how the Federal Circuit addressed the new pleading standard in Lyda v. CBS and whether more definitive guidance is likely to be forthcoming. IP Chat Channel webinars are recorded and available on our website after the live webinars. CLE granted in many states.

IP IN THE MASS MEDIA

Hanesbrands Sues Jacques Moret for Patent Infringement

On Thursday Fox News reported that Hanesbrands sued Jacques Moret, Inc., which sells bras under a Jockey International license, for infringing its patent on a bra design.

Exacta Systems Wins Trademark Suit Brought by Oaklawn Jockey Club

On Thursday Exacta Systems announced that the U.S. Court of Appeals for the Sixth Circuit upheld a lower court dismissal of a trademark infringement suit against it brought by Oaklawn Jockey Club and several Stronach Group racetracks, claiming that the horse racing game creator infringed their trademarks by using their racetracks’ names to identify locations where historic horse races had taken place. (PR Newswire)

LEARN HOW TO INCORPORATE ENFORCEMENT AS PART OF YOUR IP STRATEGY

Join IPO at a one-day conference on 18 May in Paris, France to learn more about the panorama of preliminary injunctions in the U.S., UK, Germany, and France. Moderated by CYRA NARGOLWALLA (Cabinet Plasseraud in Paris, France), the panel includes: STUART BARAN (Three New Square in London, UK), TAMMY DUNN (Osha Liang LLP in Houston, Texas, U.S.), WILLEM HOYNG (Hoyng Rokh Monegier in Amsterdam, Netherlands), JASPER MEYER ZU RIEMSLOH (Wildanger Kehrwald Graf V. Schwerin & Partner in Düsseldorf, Germany), and JOHN PEGRAM (Fish & Richardson, PC in New York, New York, U.S.). To view the full program and to register, visit www.ipo.org/Europe17.




Friday, 21 April, 2017 12:34 pm

IP IN THE MASS MEDIA

Artist Claims Fair Use in Instagram Artwork Dispute

Yesterday The Fashion Law blog reported that artist RICHARD PRINCE is claiming fair use as the defense against two separate copyright infringement suits brought against him by commercial, editorial, and fine art photographer ERIC MCNATT and Los Angeles-based photographer DONALD GRAHAM. Each claims Prince used an unlawful derivative copy of their photographs in his “New Portraits” Instagram Exhibition.

Dell Loses “Unity” Trademark Suit

On Wednesday the Boston Business Journal reported that a federal judge ruled that California-based data storage company Nexsan Technologies Inc. had priority over Dell Technologies in the use of the mark “Unity” that both companies were using in connection with new hardware technology. Dell began using the name “Unity” sporadically during beta testing and pre-marketing presentations in 2015. Nexsan filed an application to register the mark with the U.S. Patent and Trademark Office more than a month before Dell in 2016.




Thursday, 20 April, 2017 12:11 pm

IP IN THE MASS MEDIA

Baltimore “Light City” Trademark Infringement Suit to Settle

On Tuesday the Baltimore Sun reported that Baltimore Office of Promotion & the Arts and Baltimore Festival of the Arts and owners of marketing and creative agency What Works Studio BROOKE and JUSTIN ALLENS agreed to settle a trademark infringement dispute over future use of the name “Light City” after the couple co-founded the illuminated art festival Light City Baltimore.

Symantec Sues Zscaler on Network Security Technology

On Tuesday Symantec Corp. announced that it sued Zscaler, Inc. for infringing its patents on a variety of network security technologies, including web security, security scanning, data loss prevention, intrusion prevention, and intrusion signature analysis. (BusinessWire)

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TODAY ON IPO’S IP CHAT CHANNEL — SETTLEMENT AGREEMENTS AS COMPARABLES: NEW COMPREHENSIVE ANALYSIS FROM THE FEDERAL CIRCUIT

Tune in to the IP Chat Channel on Thursday, 20 April, at 2:00p.m. ET to learn how a new Federal Circuit opinion lays out a complete road map to the admissibility of settlements in patent infringement litigation. Our panelists are STEPHEN HOLZEN (Stout Risius Ross), SAMUEL WALLING (Robins Kaplan LLP), and KAREN WEIL (Knobbe, Martens, Olson & Bear LLP). IP Chat Channel webinars are recorded and available on our website after the live webinars. CLE granted in many states.




Wednesday, 19 April, 2017 12:27 pm

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***PATENT OWNER CANNOT DISCLAIM PATENT CLAIM TO RETROACTIVELY DISSOLVE MARKING REQUIREMENT

Rembrandt Wireless Techs., LP v. Samsung Elecs. Co. 16-1729 — On Monday in an opinion by Judge STOLL, the Federal Circuit vacated a district court decision denying Samsung’s motion to limit patent infringement damages. The patents were for a system and method for facilitating communication among modems. Before trial, Samsung argued to limit Rembrandt’s potential damages based on the failure to mark products covered by asserted claim number 40. Rembrandt subsequently withdrew claim 40 from the infringement suit and disclaimed it with the USPTO. The district court accepted Rembrandt’s argument that the obligation to mark claim 40 vanished because a disclaimed patent claim is treated as if it never existed.

The Federal Circuit disagreed. “Rembrandt’s position … effectively provides an end-run around the marking statute and is irreconcilable with the statute’s purpose. Allowing Rembrandt to use disclaimer to avoid the consequence of its failure to mark undermines the marking statute’s public notice function.” Considering the rights of the public, a disclaimer cannot “retroactively dissolve” the marking requirement and permit a patentee to collect pre-notice damages. The court remanded for a determination whether a failure to mark applies on a claim-by-claim or patent-by-patent basis.
(1 to 4 stars rate impact of opinion on patent & trademark law)

ATTEND ANNUAL MEETING FOR FREE

Want to attend the IPO Annual Meeting for free? Recruit a new corporate or law firm member to join IPO. If a new member lists your name on their membership application, you can select from one of the following prizes:

• One complimentary registration to the 2017 IPO Annual Meeting
• Two complimentary nights in the hotel room block during the 2017 IPO Annual Meeting
• One pass for three months of unlimited access to the IP Chat Channel
• One month of advertising space on the IPO.org homepage (availability is limited)
• Advertising space in an issue of the IPO Corporate Monthly.

Recruit more than one corporate or law firm member and receive a prize for each new member you bring in. Complimentary Annual Meeting registration and two free nights at the hotel during the meeting, anyone? Please contact Robin Muthig with questions or to select your prize.

IP IN THE MASS MEDIA

Motorola Sues Hytera on Two-Way Wireless Device Technology

Yesterday Motorola Solutions, Inc. announced that it sued Hytera Communications Corporation in a German court, claiming that Hytera’s two-way wireless communication devices that utilize “pseudo-trunking” functionality infringe a Motorola patent. (BusinessWire)




Tuesday, 18 April, 2017 12:13 pm

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**COURT DID NOT ERR IN GIVING COLLATERAL ESTOPPEL EFFECT TO A RULE 36 JUDGMENT UPHOLDING NO PATENT INFRINGEMENT

Phil-Insul Corp. v. Airlite Plastics Co. 16-1982 — Yesterday in an opinion by Judge O’MALLEY, the Federal Circuit upheld a district court summary judgment of no infringement. The patent claimed insulating concrete forms for use in construction. Airlite argued that Phil-Insul (dba “IntegraSpec”) was collaterally estopped based on the claim construction and summary judgment of no infringement in a prior suit that a previous Federal Circuit panel upheld without opinion in a “Rule 36” judgment. IntegraSpec argued that the district court erred in giving collateral estoppel effect to a Rule 36 judgment.

The Federal Circuit said that collateral estoppel was appropriate in this case. Per the court’s operating procedures, “a Rule 36 affirmance is a binding judgment for collateral estoppel purposes.” The claim construction was entitled to preclusive effect because IntegraSpec had a full and fair opportunity to litigate the meaning of the same terms in the prior suit. The no infringement judgment was entitled to preclusive effect because Airlite’s products had the same design as the products found not to infringe in the prior suit.
(1 to 4 stars rate impact of opinion on patent & trademark law)

ATTEND IPO’S EUROPEAN PRACTICE CONFERENCE ON IP STRATEGY

Attend IPO’s European Practice Committee one-day conference on 18 May in Paris, France to learn more about licensing as part of your IP strategy. CLAUDIA TAPIA GARCIA (Ericsson in Frankfurt, Germany) will discuss how the recent FRAND decisions affect licensing in the telecommunications sector. THIERRY SUEUR (Air Liquide in Paris, France) will address the impact that the UPC will have on licensing. To view the full program and to register, visit www.ipo.org/Europe17.

IP IN THE MASS MEDIA

Fortune Writes on Moral Rights in “Charging Bull” and “Fearless Girl” Statue Dispute

On Sunday Fortune wrote on the copyright lawsuit threatened by artist ARTURO DI MODICA over the placement of the “Fearless Girl” statue opposite his “Charging Bull” statue in New York City. Di Modica argues that his moral rights have been violated because the “Fearless Girl” statute changes the meaning and symbolism of his artwork, however U.S. Copyright Law offers artists very limited rights to protect the integrity of their work under the Visual Artist Protection Act.

JOIN US FOR AN ORIENTATION TO IPO

New to IPO? Already a member but need to refresh your memory on the benefits? Trying to find ways to get your staff involved? Join us for a 30-minute IPO membership orientation call. Calls for corporate and small business members are held on the 3rd Tuesday of each month from 2:00p.m. ET to 2:30p.m. ET. Calls for law firm members are held on the 4th Tuesday of each month from 2:00p.m. ET to 2:30p.m. ET. Contact Lorna Soderberg for further information.