The Supreme Court recently decided a patent case involving a significant procedural issue.  In Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831 (1/20/15), the question before the Court was whether the Federal Circuit Court of Appeals should review a district court’s factfindings in its claim construction decision under a de novo or a “clearly erroneous” standard.   The Court held that the proper standard of review, under Federal Rule of Civil Procedure 52(a)(6), is “clearly erroneous.”  The case establishes a two-part standard of review of a district court’s claim construction decision: a clearly erroneous standard for subsidiary facts and a de novo standard for the question of law.

The case involved Teva Pharmaceuticals’ patent for a method of making a drug to treat multiple sclerosis.  Sandoz began to sell a generic version of the drug.  Teva Pharmaceuticals sued Sandoz for patent infringement.  The claim at issue referred to a polymer having a specific molecular weight.  Sandoz argued that Teva Pharmaceuticals’ patent was invalid because the term “molecular weight” was indefinite.  Sandoz contended that there were three possible meanings of “molecular weight,” and that the patent did not explain which one was to be used.

The district court held that the patent was valid, based on expert testimony, finding that the term “molecular weight” was definite to a person skilled in the art. Continue Reading SUPREME COURT: PATENT CLAIM CONSTRUCTION – TWO STANDARDS OF REVIEW

transparentMany of you may be familiar with the pop hit “Blurred Lines” by Robin Thicke, Clifford Harris, more popularly known as T.I., and Pharrell Williams (the “Composers”).  If it does not sound familiar by title, perhaps you may recall it for its controversial nudity laden music video, or the fact that it was the song performed by Thicke and Miley Cyrus at the MTV Video Music Awards in 2013 when Miley’s scandalous conduct went viral and shocked the world—including Thicke’s spouse.  However, what you may be less familiar with is the fact that the heirs of Motown great Marvin Gaye (the “Heirs”) have been threatening to sue the Composers since at least early 2013.  The Heirs claim that “Blurred Lines” infringes their copyright in the Marvin Gaye song “Got to Give it Up.”  However, in August 2013, after months of discussion on the issue, the Composers opted to file an action for declaratory relief in the United States District Court for the Central District of California, seeking a judgment that “Blurred Lines” does not infringe “Got to Give it Up.”  The justification there was likely that sometimes the best defense is a strong offense.  The Heirs then filed a counterclaim for copyright infringement alleging that “Blurred” Lines” does in fact infringe “Got to Give it Up” and also that another song by Robin Thicke and Paula Patton—“Love After War”—infringes Marvin Gaye’s song “After the Dance.”  The trial on this matter began on February 24, 2015 and is currently ongoing. Continue Reading The Blurred Lines of an Infringement Action

transparentJust last week, on February 18, 2015, Seattle Seahawks superstar running back Marshawn Lynch (“Lynch”), also known as Beast Mode, filed for a federal trademark with the United States Patent and Trademark Office (“USPTO”) for his now famous quote—“I’M JUST HERE SO I WON’T GET FINED.” For those of you who are not big NFL fans, Lynch coined his now signature phrase during the Super Bowl XLIX Media Day. This did not come as a huge shock to most NFL fans because Lynch has developed a reputation for avoiding the media and refusing to fulfill the media obligations of one of the league’s brightest superstars. However, in the face of the NFL’s threat of a $50,000 fine if he refused to participate in Super Bowl XLIX Media Day, Lynch decided to play ball. In response to over 20 proffered questions, Lynch simply responded, “I’m just here so I won’t get fined.”

This caused quite the outrage from the media and certain sports fans—mostly 49er fans (we all know how they adore the Seahawks), who found Lynch’s conduct unprofessional and disrespectful. But, say what you will about Lynch’s unprofessional conduct and disregard for his obligations as an NFL superstar, the fact is the man knows how to exploit and protect his own intellectual property. Continue Reading IP in the NFL: “I’m Just Here So I Won’t Get Fined,” or Are You?

On February 5, 2015, Congressman Bob Goodlatte reintroduced the “Innovation Act”; a bill designed to implement several changes to the legal framework governing United States patent law. The law is designed to make it more difficult for non-practicing entities (also known as “patent trolls”) to maintain patent infringement lawsuits. The law appears to have significant support among both houses of Congress, and may soon become law.

If passed, the Innovation Act purportedly will create several disincentives aimed at increasing the risk faced by non-practicing entities when bringing patent infringement lawsuits. First, the Innovation Act would require non-practicing entities to meet a heightened pleading requirement. Non-practicing entities would be required to plead “with detailed specificity” how the accused products allegedly infringed their patents. Additionally, the Innovation Act contains a fee-shifting provision which would allow the court to award attorneys’ fees to the prevailing party. This provision was included in the Act to address the fact that most lawsuits brought by non-practicing entities are settled by the accused party because the defense costs and legal fees associated with defending patent infringement cases often run into the millions of dollars. Continue Reading Congress is Reconsidering “Anti Troll” Legislation

What do you get when you take one shark costume, add a confused backup dancer, throw in Katy Perry and the Super Bowl halftime show and top it off with a satirical artist with a 3D printer? First the backstory.

The “Left Shark” in question is a Katy Perry backup dancer who was dressed in a shark costume for Perry’s beach-themed number “Teenage Dream” during the Super Bowl halftime show. The Left Shark (the dancer to Perry’s right) seemed to have forgotten his dance moves — how else could you explain the flailing of fins. The Internet took notice; so did 3D sculptor Fernando Soza.

Soza’s satirical barbs are usually reserved for the politico set, such as Governor Chris Christie wearing a traffic cone and carrying a sign that reads “traffic study”. However, this time he took aim at the Left Shark and created a 3D printed sculpture of one regular shark, one pink shark and one holding a beer bottle.

So what do you get when you take one shark costume, add a confused backup dancer, throw in Katy Perry and the Super Bowl halftime show and top it off with a satirical artist with a 3D printer? You have the makings for a copyright dispute, of course. What else could there be? Continue Reading The Left Shark, Katy Perry and Copyright Chum