Case of the Week - Irwin IP

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

November 4, 2019

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

November 1, 2019

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,

October 24, 2019

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

October 18, 2019

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

October 11, 2019

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

October 4, 2019

IF YOU’RE AN INFLUENCER, BE PREPARED TO INFLUENCE

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

September 27, 2019

WHEN A PICTURE ISN’T WORTH A THOUSAND WORDS:

In a case of first impression, the Federal Circuit Court of Appeals addressed whether claim language specifying a specific article of manufacture can limit the scope of a design patent, even if that article of manufacture is not actually illustrated in the figures. The Court found the answer to be

September 27, 2019

Allstate’s “Drivewise” Suit Against Kia’s “Drive Wise” Mark Finally Runs Out Of Gas

The Ninth Circuit recently held that the district court did not err when it ruled that Allstate’s “Drivewise” mark—which Allstate conceded was merely suggestive and for which Allstate failed to establish the level of its marketplace recognition—was only entitled to a narrow scope of protection and could not be used

September 12, 2019

In the Right Place at the Wrong Time

Recently, the Precedential Opinion Panel (“POP”) of the Patent Trial and Appeal Board (“PTAB”) overturned a previous PTAB panel’s decision to institute inter partes review (“IPR”) and held that “service of a pleading asserting a claim alleging infringement triggers the one-year time period for a petitioner to file a petition

September 6, 2019