It’s not just the Redskins anymore! Following the cancellation of the Redskins trademark earlier this summer, the Trademark Trial and Appeal Board has issued another football related decision regarding the New York Giants’ trademark of their commonly used nickname, the "G-Men."
By now, most patent practitioners are quite familiar with the post-grant patent proceedings (e.g., IPR, PGR, CBM) newly established by the AIA, and their key features, such as the stay and estoppel provisions. Numerous courts have addressed the issue of a stay of civil litigation during the pendency of a post-grant proceeding. The growing defense strategy, upon being sued for patent infringement, is to file a post-grant patent proceeding and seek a stay of the civil litigation, which allows the defendant to move the patent validity issue into a more favorable and usually less expensive forum. Most statistics show that courts in the various jurisdictions with active patent case dockets are quite willing to stay cases.
Six days after the Supreme Court handed down its opinion in Alice Corp. v. CLS Bank, which invalidated certain patents disclosing “a computer-implemented scheme for mitigating ‘settlement risk,’” the USPTO issued its own Preliminary Examination Instructions. (An overview of the Alice Corp. decision can be found here.)
On June 25, 2014, the U.S. Supreme Court issued its long-awaited decision in American Broadcasting Companies, Inc., et al., v. Aereo, Inc. The case involves a lawsuit brought by ABC and other television producers, marketers, distributors, and broadcasters (collectively, “ABC”) against Aereo, a company that offers broadcast television programming to subscribers via the Internet for a monthly fee.
In its highly anticipated decision in Alice Corp. Pty. Ltd. v. CLS Bank Int’l, the United States Supreme Court unanimously ruled that an abstract idea is not patentable simply because it is implemented on a computer.
In a continuing a pattern that has seemingly developed over the past several years, the Supreme Court recently overturned two more Federal Circuit decisions relating to key aspects of patent law.
These are his "Confessions!" Usher has emerged victorious in a copyright lawsuit involving the song "Caught Up." In Edwards et al. v. Raymond et al., Plaintiffs Zacharia Edwards, Mitch Moses, and Vince McClean alleged that Usher Raymond, more commonly known by the moniker, "Usher," stole the song "Caught Up" from Plaintiffs' own compositions and included it on Usher's award-winning album, "Confessions." Plaintiffs also alleged that representatives from Arista Records LLC intimidated Plaintiffs into keeping quiet about the alleged theft by threatening to harm Plaintiffs' standing in the music industry if they spoke up. Plaintiffs filed suit in November 2013; and Usher and his co-defendants responded with a motion to dismiss.
On May 19, 2014 a U.S. District Court in the Eastern District of Texas granted a joint motion to dismiss Wall Wireless' patent lawsuit against Nintendo filed in February of 2009, which implicated the Nintendo DS and DSi systems (link to Complaint). The Court had stayed the case (Case No. 6:2009-cv-00064) pending the outcome of an inter partes re-examination, filed by Nintendo, of the 6,640,086 Patent-in-suit titled "method and apparatus for creating and distributing real-time interactive media content through wireless communication networks and the Internet." The dismissal comes after most of the claims of the patent were cancelled by the U.S. Patent and Trademark Office in December of last year. The Japanese Patent Office has also confirmed that Nintendo does not infringe Wall's Japanese patents. According to the suit, players can use the handheld devices to play real-time games accessed through Nintendo's websites.
One of the solutions proposed to curb perceived patent litigation abuse is to heighten the pleading standards. The idea being that higher pleading standards would enable defendants to seek early dismissal of complaints at the pleading stage. The assumption being that these types of patent plaintiffs cannot meet heightened pleading standards. But how effective would this really be?
In two related decisions, the Supreme Court relaxed the standard to award attorney’s fees under Section 285 of the Patent Act (“§285”) and ruled that decisions on §285 are entitled to deference on appeal. In the first case, the Court found that the Federal Circuit’s test for §285, as described in Brooks Furniture Mfg., Inc. v. Dutailier Int'l, Inc., 393 F.3d 1378, 1380 (Fed. Cir. 2005), is “unduly rigid” and inconsistent with the statutory language. Octane Fitness, LLC v. Icon Health & Fitness, Inc., 12-1184, Slip Op. at 7 (2014). The Court reasoned that the only constraint imposed by the text of §285 on a district court’s discretion to award attorney’s fees is that the case must be exceptional. Id. According to its ordinary meaning, the Court held, “an ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position . . . or the unreasonable manner in which the case was litigated.” Id. at 7-8. Further, district courts should consider the totality of the circumstances and make a case-by-case determination on §285 questions. Id. at 8. Finally, the Court held that the evidentiary burden for §285 is a preponderance of the evidence, not clear and convincing evidence as required by the Federal Circuit. Id. at 11.