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Plaintiff successfully skirts the minimum requirements for pleading, dismissal of complaint reversed

In a decision issued Friday, the Federal Circuit applied the Supreme Court's recent Twombly decision to the pleading requirements for patent and trademark causes of action. The court held that patent infringement plaintiffs need not specifically plead the claims infringed. Further, the court applied a similarly open standard to pleading trademark infringement cases. The pro […]

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Is fair use more valuable to the economy than copyright?

A study released this week by the Computer and Communications Industry Association (CCIA) attempts to quantify the value that fair use, the restriction on a copyright holder's ability to assert infringement claims, has to the U.S. economy. The study attempted to ascertain the economic output of "fair use industries," that is, either "industries that produce […]

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“Ordinary observer” can be commercial buyer when buyer uses designed item as part of retail product

In a recent decision, the Federal Circuit affirmed a district court’s order granting summary judgment of non-infringement of two design patents. Specifically, the court acknowledged that the Supreme Court's decision in Gorham Co. v. White held that an "ordinary observer" for purposes of design patent infringement cannot be an expert. Nevertheless, in this case, the […]

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Tenth Circuit: Post-sale confusion relevant, but denial of injunction still affirmed

In a decision rendered yesterday, the Tenth Circuit affirmed a district court's denial of a preliminary injunction in a trade dress infringement case. The Tenth Circuit did join multiple other circuits in holding that post-sale confusion can be relevant to a claim of trade dress infringement. Evidence of post-sale confusion, however, was still insufficient evidence […]

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USPTO posts Examination Support Document Guidelines

The USPTO has posted guidelines for Examination Support Documents on its website devoted to the new claim and continuation limit rules. Examination Support Documents (ESDs) will be required for all patent applications exceeding the 5/25 claim limit that have not yet received a first office action on the merits as of November 1. The guidelines […]

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Claim construction and noninfringement finding affirmed; prosecution history estoppel bars DOE

In a decision today, the Federal Circuit affirmed a district court's grant of summary judgment of noninfringement of a patent relating to a "gutter guard" designed to keep debris out of gutters. The court found the district court's claim construction correct, as it properly considered dictionary definitions when the specification provided no additional guidance on […]

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Federal Circuit makes previous nonprecedential obviousness opinion precedential

Today the Federal Circuit decided to change the status of Daiichi Sankyo Co. v. Apotex, Inc. (previously blogged about here), from nonprecedential to precedential. This is noteworthy because this was one of the first obviousness cases decided by the Federal Circuit after KSR, and dealt specifically with one of the Graham factors: the level of […]

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Finding of induced infringement reversed: insufficient evidence of direct infringement

Today, the Federal Circuit held that hypothetical instances of direct infringement are not enough to establish that a party induced direct infringement of a patent. Instead, there must be evidence of instances of actual infringement in order to establish infringement was induced if there are both infringing and non-infringing ways to operate a device. Because […]

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Final rules published regarding PCT changes for restoration of priority, obvious changes, search fee

The USPTO has published final rules relating to PCT applications. The revised rules deal with restoration of priority when unintentionally not claimed until after the deadline, correction of obvious errors or omissions, and increasing the PCT search fee to $1,800. To read the full notice, click here.

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Purified stereoisomer of compound in known mixture obvious in light of expected potency

In a decision today, the Federal Circuit reversed a district court's pre-KSR decision of nonobviousness. The claims were directed toward a particular isomer of a compound that was "substantially free" of other isomers. The prior art included a mixture that included the claimed isomer as well as a different isomer. The court found the claims […]

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