Publications

Irwin IP Publications is the go-to resource for the latest updates and insights in the world of intellectual property. Over 250 articles are published on cases addressing unique issues, all of which can be found using the search tool above. Additionally, there is a collection of articles/papers and presentations that cover a wide range of topics. Whether you’re a legal professional, business owner, or simply someone passionate about IP, our publications page will provide you with all the knowledge needed to navigate this dynamic field.

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March 23, 2020

Heineken Brews Up a Win over Anheuser-Busch at the ITC

On September 5, 2018, Heineken filed a complaint with the International Trade Commission against Anheuser-Busch alleging a violation of § 337 of the Tariff Act, in the importation into or sale in the United States of beverage dispensing systems and components that allegedly infringed claims 1–11 of Heineken U.S….

March 17, 2020

Ninth Circuit Overrules Copyright Inverse Ratio Rule

On March 9, 2020, the Court of Appeals for the Ninth Circuit, en banc, affirmed the district court’s judgment of noninfringement of copyright in favor of Led Zeppelin and, notably, joined the majority of circuits by overruling the “inverse ratio rule” for copyright infringement in its jurisdiction and further…

March 9, 2020

CleanTech’s “Dirty” Prosecution = Inequitable Conduct

Cleantech Corp. (“CleanTech”), the owner of four patents directed to recovering oil from an ethanol plant’s byproduct, began filing infringement actions against numerous defendants around the country beginning in 2009. After the disparate actions were combined by the multidistrict litigation panel, the defendants moved for summary judgment on invalidity…

March 3, 2020

The Place of Business is People

The Federal Circuit held that a server owned by Google, Inc. that was installed in a third-party contractor’s datacenter did not constitute a “regular and established place of business” under the patent venue statute, 28 U.S.C. § 1400(b) because none of Google’s employees did business at the site. In…

February 24, 2020

Settlement Agreement Renders Case Moot, Plain and Simple

The Federal Circuit recently vacated an order granting summary judgment of non-infringement on the grounds that a settlement agreement executed shortly before the order mooted the case. The Federal Circuit concluded that continuing obligations of the parties, as set forth in the settlement agreement, did not preclude this result.[1]…

February 17, 2020

The Long-Arm of the Law: Infringing Internet Sales Opens up Suit in Customers’ Home States

The Seventh Circuit held that internet sales of products with allegedly infringing branding from a national advertising company will establish personal jurisdiction in Illinois under the Illinois long-arm statute. In trademark infringement cases, unlike patent cases, even a seemingly small number of allegedly infringing sales can be sufficient to…

February 10, 2020

PTAB Cannot Cancel Claims for Indefiniteness in IPR Proceedings

The Federal Circuit recently ruled the Patent Trial and Appeal Board (“the PTAB”) may not cancel claims for indefiniteness in an inter partes review (“IPR”) proceeding.[1] The Federal Circuit concluded while an IPR petition defines the scope of an IPR proceeding, the Board may not exceed its governing statutory…

February 3, 2020

Expensive Product’s Manual with Few Sales Still Printed Publication

After finding that a user manual was publicly accessible (and thus a printed publication), a panel of the Patent Trial and Appeal Board (“PTAB”) relied on a combination of the teachings in that user manual and the knowledge of a person of ordinary skill in the art (“POSA”) to…

January 27, 2020

Rock, Paper, Statutory Damages: Fifth Circuit Holds Statutory Damages Beat Mitigation Defenses

On two issues of first impression, the Fifth Circuit held that mitigation was not an absolute defense to statutory damages under the Copyright Act, and not a complete defense to Digital Millennium Copyright Act (“DMCA”) statutory damages. Oil Daily is a newsletter published by Plaintiff EIG; it analyzes the…

January 20, 2020

Special Patent Rights, but Only for Inventors

A new proposed legislation relating to the patent laws has been submitted in the United States House of Representatives—the Inventor Rights Act of 2019. The proposed legislation concerns new rights and privileges that are limited to inventor-owned patents, or patents owned by entities controlled by their inventors. As part…

January 17, 2020

PTAB Finds RPX Member Google is not Real Party in Interest or Privy

In what amounts to the next in a long line of cases addressing the subject, the Patent Trial and Appeal Board issued an opinion again confirming that membership in an organization committed to filing IPRs does not rise to the level of “real party in interest.” RPX Corporation (“RPX”)…

January 13, 2020

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…

December 13, 2019

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…

December 12, 2019

Three Patent Cases, Two Defendants, and One Consistent View Regarding Convenience in Marshall, Texas

In T.C. Heartland v. Kraft Foods Group Brands, LLC,[1] the United States Supreme Court clarified that only the patent venue statute, 28 U.S.C. § 1400(b), without interpretation of the general venue statute (28 U.S.C. § 1391(c)) controls venue for patent infringement actions, and concluded that a domestic corporation accused of patent…

November 26, 2019

Hot Sauce Trademark Infringement Order Creates Spicy Implications for Marijuana-Related Products

Plaintiff Tapatio, known for its ubiquitous hot sauce bottles labeled with red arching font and a yellow-clothed Mexican horseman in a sombrero, sued the defendant for using the mark “Tiowaxy” in connection T.H.C.-infused hot sauce. The Tiowaxy bottle bears the same red arching font and imagery. Tapatio moved for…

November 22, 2019

“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…

November 15, 2019

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…

November 8, 2019

Ninth Circuit Reverses District Court’s Dismissal of Claims Alleging Taylor Swift Stole Lyrics to “Shake It Off”

A panel of the Ninth Circuit Court of Appeals reversed and remanded a decision by the Central District of California dismissing a complaint brought against Taylor Swift alleging that she stole the lyrics for her hit song “Shake It Off.” The District Court dismissed the complaint on the basis…

November 4, 2019

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…

November 1, 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…