Irwin IP Case Of The Week

When “Fight Hard” Pays Off

The Federal Circuit recently affirmed an award of attorney’s fees for a patent infringement defendant where, as part of its ‘exceptional case’ analysis under 35 U.S.C. § 285, the lower court considered not only the substantive strength of the plaintiff’s position, but also its business model and history of litigation. 

USPTO May Not Collect Attorney Fees in § 145 Actions to Issue a Patent

Professor Dennis Crouch did a great job of summarizing the Supreme Court’s ruling last week in Peter v. NantKwest, wherein the Court found that the Patent and Trademark Office could not shift its litigation costs to applicants who choose to challenge the PTO’s decisions in district court.  We recommend everyone

Fisher Is Stood Up At The Federal Circuit

The Federal Circuit recently ruled that Fisher & Paykel Healthcare Limited (“Fisher”) lacked standing to appeal an inter partes review (“IPR”) decision that Fisher had instituted against ResMed Limited (“ResMed”), finding Fisher failed to satisfy its burden of asserting future plans which would create “a substantial risk of future infringement”

“Logo and Minor Differences May Yield Different Overall Visual Impression”

Columbia Sportswear (“Columbia”) sued Seirus Innovative Accessories (“Seirus”) for infringement of both a utility and a design patent relating to a heat management element in cold-weather outerwear. The design patent was directed to a wave-pattern design weave. Seirus established that the utility patent was anticipated and obvious, a finding sustained

Airbus Snuffs Out Fire Prevention Patent

In Airbus S.A.S. v. Firepass Corp., the Federal Circuit reversed the Patent Trial and Appeal Board’s finding that had held a patent directed to an athletic training and therapeutic chamber (used to simulate training at high altitude) was not analogous art against claims directed towards fire suppression methods. Case No.

Administrative Patent Judges Ruled Unconstitutional; Immediately Corrected Lack of Oversight by Removing “For Cause” Termination

The Federal Circuit unanimously held that all Administrative Patent Judges (“APJs”) were Principal Officers who bypassed the constitutionally required Presidential appointment and Senate confirmation process, thus violating the Appointments Clause of the U.S. Constitution art. II, § 2, cl. 2. In the same opinion, the Federal Circuit corrected the infirmity

The Space and Marketplace Between: SmartSync Not Confusingly Similar to Smart Sync

The Central District of California recently ruled on summary judgment that Ironhawk Technologies, Inc.’s, (“Ironhawk”) “SmartSync” mark was descriptive and entitled to little or no protection. The District Court’s analysis relied on the Ninth Circuit’s Sleekcraft eight factor likelihood of confusion test1 and particularly concluded that Ironhawk’s “SmartSync” mark was

Guiding Light to Motion to Amend?

Any new rule or pilot program by the United States Patent and Trademark Office (“USPTO”) is important to both prospective petitioners and patent owners because both parties should consider all available options when appearing in a proceeding before the Board. In three Inter Partes Review (“IPR”) proceedings for Mylan Pharmaceuticals,

HTC Blindsided by Strategy of Staying in the Dark

Motiva alleged that HTC directly, indirectly, and willfully infringed of a number of Motiva’s patents directed to video game and virtual reality systems. HTC moved to dismiss two of Motiva’s claims, arguing that Motiva failed to adequately plead its claims for indirect and willful infringement. Specifically, HTC argued that that

Driveshaft Patent Only Natural After All

American Axle & Manufacturing (“AAM”) sued its competitor NeapCo Holdings LLC (“NeapCo”) for patent infringement in December of 2015, alleging infringement of its method patent relating to manufacturing driveshafts with liners to reduce noise and vibration during use. The parties cross-moved for summary judgment as to the eligibility of the

Whose Line is it Anyway?

In SIPCO, LLC v. Emerson Elec. Co., the Federal Circuit reversed the Patent Trial and Appeal Board’s construction of a claim term critical to determining whether SIPCO’s patent concerning wireless inter-device communication qualified for review as a covered business method (“CBM”) patent, remanding to the Board for further consideration concerning


When faced with determining the scope of protection in a social media influencer’s “character,” the United States District Court for the Southern District of New York concluded that omitting the key features of the influencer’s “character” can preclude claims of copyright infringement, even though the accused character appeared to draw