Irwin IP Case Of The Week

Context-Sensitivity Outweighs Transformative Use

Determining Andy Warhol’s artistic works titled “The Prince Series” were not a fair use of photographer Lynn Goldsmith’s photograph of musical artist Prince, the Court of Appeals for the Second Circuit reversed the Southern District of New York’s grant of summary judgment.  The Second Circuit further held “The Prince Series”

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Unanswered Demand Letters and Intervening Rights

The Court of Appeals for the Federal Circuit (“CAFC”) recently issued a decision focusing on the doctrine of equitable intervening rights.  Specifically, the CAFC affirmed that equitable intervening rights can apply even if a party has already recouped its investment in the infringing technology. John Bean Technologies Corporation (“John Bean”)

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Fax Error: Connection Failed

The Court of Appeals for the Federal Circuit (“CAFC”) affirmed a final judgment ruling that Infinity’s four patents—involving using a fax machine as a printer or scanner for a personal computer—are invalid as indefinite because the patent applicant had asserted conflicting definitions of the claim term “passive link” during prosecution

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Rubik’s Cube Design Not Functional

 A Magistrate Judge for the Southern District of New York recently issued a Report and Recommendation (“R&R”) concluding that the color pattern of a traditional Rubik’s cube was not functional and thus entitled to trademark protection.   Rubik’s Brand Limited (“RBL” or “Rubik’s”) sued Flambeau, Inc. (“Flambeau”) alleging infringement of RBL’s

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Windy City’s Patent Could Not Weather The Alice Storm

Windy City Innovations, LLC (“Windy City”), assignee of U.S. Patent No. 8,458,245 (the “245 patent”) entitled “Real Time Communications System,” brought a patent infringement action against Facebook Inc. (“Facebook”) for alleged infringement of the ’245 patent.  Facebook filed for summary judgment on grounds that the ’245 patent was invalid under

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The Article of Manufacture Requirement under 35 USC 371: USPTO seeks insights in response to technology advances

The United States Patent and Trademark Office (PTO) recently sought public input into the proper interpretation the article of manufacture requirement (AoM) for design patents under 35 U.S.C. 171 (including, specifically, whether it should protect digital designs that encompass new and emerging technologies, such as projected, holographic, virtual -reality and

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Legitimate Product Review or Paid Product Promotion? Ninth Circuit Says Commercial Speech Plausibly Alleged

Ariix, a nutritional supplement company, brought action against NutriSearch, the publisher of the NutriSearch Comparative Guide to Nutritional Supplements (the “Guide”), which NutriSearch expressly claims is an evidence-based comparison of nutritional supplements without any particular bias.  Not so said Ariix, NutriSearch’s Guide is merely a sophisticated marketing sham designed to

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