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CBD Products in the Time of COVID-19: Best Practices for Making Your (Trade)mark

by Sarah Bro | May 4, 2020 | Trademarks

In the midst of an unprecedented and unsettling global pandemic, one constant remains: certain entrepreneurial-minded folks will not miss the opportunity to file trademark applications for new “brands” that align with the latest news cycle. COVID-19 is no different. The United States Patent and Trademark Office (USPTO) has experienced a swell of new US trademark applications for COVID-related trademarks, with many of the marks using descriptive terms or phrases that have become commonplace in a shelter-in-place, #wfh and social distancing world.

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Can’t Have Layered Architecture Cake and Eat It Too: No Importing Limitations from Specification in § 101 Analysis

by Thomas DaMario | Apr 30, 2020 | Patents

Addressing both the availability of appeal in the absence of a Rule 50(b) motion and the appropriateness of importing limitations from the specification in a 35 USC § 101 analysis, the US Court of Appeals for the Federal Circuit reversed a district court’s ruling that a patent was not invalid under § 101. Ericsson Inc. v. TCL Commc’n Tech. Holdings Ltd., Case No. 18-2003 (Fed. Cir. Apr. 14, 2020) (Prost, CJ.) (Newman, J., dissenting).

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Stratus Update: Federal Circuit Affirms TTAB Refusal to Register Telecoms Mark

by McDermott Will & Emery | Apr 30, 2020 | Trademarks

The US Court of Appeals for the Federal Circuit affirmed a US Patent & Trademark Office (PTO) Trademark Trial and Appeal Board (TTAB) refusal to register the mark STRATUS over the existing registration for STRATA, finding a likelihood of confusion between the two marks. Stratus Networks, Inc. v. UBTA-UBET Communications, Inc., Case No. 19-1351 (Fed. Cir. Apr. 14, 2020) (Reyna, J.).

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Prima Facie Obviousness Established Where Claimed pH Range Overlaps with Prior Art Range for Similar Compounds

by Mandy H. Kim | Apr 23, 2020 | Patents

The US Court of Appeals for the Federal Circuit reversed a district court’s summary judgment that found a patent was not obvious because the claimed pH range would not have been obvious-to-try despite overlapping ranges between the claimed pH range and the pH range for similar prior art compounds. Valeant Pharms. Intl. v. Mylan Pharms. Inc., Case No. 18-2097 (Fed. Cir. Apr. 8, 2020) (Lourie, J.).

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Belt Fastener Trade Dress Conveyed as Invalid for Being Functional

by Paul Devinsky | Apr 15, 2020 | Trademarks

The US Court of Appeals for the Seventh Circuit affirmed a district court finding that a trade dress for a conveyor belt fastener was invalid as functional because its utilitarian advantages were disclosed in patents, advertising materials and internal corporate documents. Flexible Steel Lacing Co. v. Conveyor Accessories, Inc., Case No. 19-2035 (7th Cir. Apr. 7, 2020) (Ripple, J.).

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Exercise of Institution Discretion During Parallel AIA and District Court Challenges

by McDermott Will & Emery | Apr 15, 2020 | Patents

The Patent and Trial Appeal Board (PTAB) Precedential Opinion Panel (POP) refused to revisit an earlier PTAB panel decision, reiterating that it remains within the discretion of a PTAB panel to deny institution on a patent challenge because of a pending trial in federal district court. Sand Revolution II, LLC v. Continental Intermodal Group – Trucking LLC, Case No. IPR2019-01393, Paper 18 (PTAB Apr. 6, 2020) (Iancu, Dir.; Hirshfeld, Comm’r; Boalick, CAPJ, sitting as POP); Sand Revolution II, LLC v. Continental Intermodal Group – Trucking LLC, Case No. IPR2019-01393, Paper 19 (PTAB Apr. 7, 2020).

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PTAB Sets Double Standard for Qualifying Reference as “Printed Publication”

by Paul Devinsky | Apr 15, 2020 | Patents

The Patent Trial and Appeal Board (PTAB) designated an appeal decision as precedential, holding that an examiner may apply a lower standard for establishing public availability of a prior art reference as compared to a petitioner in an inter partes review (IPR). Ex parte Grillo-López, Appeal No. 2018-006082 (USPTO Jan. 31, 2020) (Chang, APJ) (denying request for rehearing) (designated as precedential on April 7, 2020). The PTAB determined that the examiner had sufficiently established a prima facie case that a US Food and Drug Administration (FDA) transcript qualified as a printed publication, even though the PTAB had previously found that a petitioner in an IPR proceeding had failed to qualify the same FDA transcript as a printed publication. The PTAB held that during prosecution, the examiner must establish only a prima facie case, and the burden then shifts to the applicant to come forward with rebuttal evidence to overcome the prima facie case. This differs from an IPR proceeding, where the petitioner must come forward with sufficient arguments to show, at the institution stage, a reasonable likelihood of prevailing on the unpatentability of the challenged claims.

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US Copyright Office, USPTO Act to Assist Those Affected by COVID-19

by Eleanor B. Atkins | Apr 9, 2020 | Copyrights, Patents

On March 27, 2020, the President signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which authorized the US Copyright Office (USCO) and the United States Patent and Trademark Office (USPTO) to temporarily waive or modify certain statutory deadlines. Prior to the CARES Act, the USPTO and USCO had sought to provide relief to intellectual property owners by waiving certain fees (including, for example, fees associated with petitions to revive abandoned applications), but had been limited by their inability to modify statutory deadlines.

The extensions will undoubtedly provide needed relief for certain rights holders during this tumultuous time. Nonetheless, if possible, adhering to original deadlines is the safest route, and parties should first carefully review the USPTO and USCO notices with a lawyer to determine whether the extensions are applicable and legally prudent.

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PTAB Designates Two Opinions Precedential and One Opinion Informative, Further Clarifying the Scope of the Board’s Discretion under § 325(d) to Decline Institution

by Paul Devinsky | Apr 9, 2020 | America Invents Act, Patents

Addressing the scope of the Patent Trial and Appeal Board’s (“Board”) discretion under 35 U.S.C. § 325(d) to deny institution, the Board designated three opinions as precedential or informative.

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Petitioner’s Reply Argument in IPR Is Not an Impermissible New Theory

by Christopher M. Bruno | Feb 27, 2020 | America Invents Act, Patents

Addressing whether the Patent Trial and Appeal Board (PTAB or Board) too narrowly read its rules limiting reply briefs in an inter partes review (IPR) to preclude a petitioner’s argument as a “new theory of unpatentability,” the US Court of Appeals for the Federal Circuit concluded that the Board abused its discretion by not considering petitioner’s arguments. Apple Inc. v. Andrea Electronics Corp., Case Nos. 18-2382, -2383 (Fed. Cir. Feb. 7, 2020) (Plager, J.).

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