Tim Dunker
Subscribe to Tim Dunker's PostsTimothy M. Dunker focuses his practice on intellectual property matters. He handles potential patent assertions, claim construction matters, as well as petitions for certiorari relating to Fourth Amendment probable cause. Read Tim Dunker's full bio.
Preliminary Injunction Upheld in Cancer Relapse Detection Case
By Tim Dunker on Jul 25, 2024
Posted In Patents
The US Court of Appeals for the Federal Circuit affirmed the grant of a preliminary injunction (PI) in the biopharmaceutical space, concluding that the plaintiff satisfied the requirements for injunctive relief, including likelihood of success on the merits. The injunction included “carve outs” for patients requiring access to the affected cancer detection kits. Natera, Inc....
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No Fair Use for Photo Used Without Required Attribution
By Tim Dunker on Feb 15, 2024
Posted In Copyrights
The US Court of Appeals for the Fourth Circuit concluded that the copyright on a photograph of an entertainment icon was the subject of a valid copyright registration and that use of the photograph in an article missing the author’s required attribution language was not otherwise “fair use.” Philpot v. Independent Journal Review, Case No....
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False Advertising: Verifiably False Versus Subjective Opinion
By Tim Dunker on Jun 22, 2023
Posted In Trademarks
In a case originally based on a false advertising claim under § 43(a) of the Lanham Act, the US Court of Appeals for the Ninth Circuit affirmed in part, reversed in part and remanded the district court’s dismissal of the claim. The Ninth Circuit concluded that the defendant’s description of a competitor’s software product was...
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Claim Duality: Multiple Dependent Claims Can Be Both Patentable and Unpatentable
By Tim Dunker on Mar 9, 2023
Posted In Patents
Addressing, for the first time, the issue of patentability of multiple dependent claims under 35 U.S.C. § 112, fifth paragraph, the Director of the US Patent & Trademark Office (PTO) granted rehearing and modified the Patent Trial & Appeal Board’s (Board) Final Written Decision after finding that the patentability of a multiple dependent claim should...
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The Saddest Hour? Closing Time for Trademark Cancellation Petition
By Tim Dunker on Oct 6, 2022
Posted In Trademarks
In a precedential decision, the Trademark Trial & Appeal Board (Board) denied a petition to cancel a trademark registration based on priority. The Board explained that the petitioner bears a higher burden of proof to show prior use when it has amended its trademark application during prosecution to allege an earlier use date. JNF LLC...
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If You Come for the Prince, You Best Not Miss
By Tim Dunker on Sep 15, 2022
Posted In Trademarks
In a precedential decision, the Trademark Trial & Appeal Board (Board) granted two opposers’ motions for partial judgment on their claim of false suggestion of a connection under Section 2(a) of the Trademark Act based on a trademark application to register the mark PURPLE RAIN. NPG Records, LLC, and Paisley Park Enterprises, LLC v. JHO...
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Can’t Dismiss Lanham Act Claim Based on FDCA Preemption
By Tim Dunker on Aug 25, 2022
Posted In Trademarks
The US Court of Appeals for the First Circuit affirmed-in-part and vacated-in-part a district court ruling dismissing claims under the Lanham Act and Massachusetts consumer protection law based on statements on a website regarding compliance with the Food, Drug, and Cosmetic Act (FDCA). Azurity Pharmaceuticals, Inc. v. Edge Pharma, LLC, Case No. 21-1492 (1st Cir....
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Argument Forfeit in Remand Notwithstanding Modified Claim Construction
By Tim Dunker on Aug 4, 2022
Posted In Patents
In the second appeal arising from an inter partes review (IPR), the US Court of Appeals for the Federal Circuit found that its revised claim construction from the first appeal did not permit the patent challenger to raise a new argument in a remand proceeding at the Patent Trial & Appeal Board (Board) since the...
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Terms of Degree Not Always Indefinite
By Tim Dunker on Apr 21, 2022
Posted In Patents
The US Court of Appeals for the Federal Circuit overturned a district court determination that the claim terms “resilient” and “pliable” were indefinite. The Federal Circuit found that the claims, while broad, were sufficiently definite in view of both intrinsic and extrinsic evidence. The Federal Circuit also upheld the district court’s findings of no induced...
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What Preclusion? Post-IPR Reexam Moves Forward
By Tim Dunker on Mar 10, 2022
Posted In Patents
The US Court of Appeals for the Federal Circuit revived a petitioner’s validity challenge seeking ex parte review at the US Patent & Trademark Office (PTO), reversing a district court decision dismissing its complaint seeking Administrative Procedures Act (APA) review of the PTO Director’s vacatur decision. The Federal Circuit concluded that the petitioner was not...
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