On September 26, 2016, the U.S. Court of Appeals for the Federal Circuit declined to review in a unanimous en banc decision a panel Federal Circuit decision affirming that the Patent Trial and Appeal Board (the “Board”) at the Patent and Trademark Office (“USPTO”) could hear new evidence during a trial, evidence that was not
As everyone knows, in June, the United Kingdom passed the BREXIT referendum (driven by British voters), voting to exit the European Union. What affect does BREXIT have on intellectual property rights in the United Kingdom and the European Union? There is a two-year process of negotiation between the UK and the EU, provided for by…
By: Eric Caligiuri
In In re CSB-System Int’l, Inc., No. 15-1832 (Fed. Cir. Aug. 9, 2016), the Court of Appeals for the Federal Circuit recently held that patents that expire during a pending re-examination before the Patent Trial and Appeal Board (“PTAB”) should be examined under the Phillips standard of claim construction, and not the…
By: Scott Hervey
Every practitioner should teach law school at least once. This year I am teaching Entertainment Law at the University of California at Davis. (Although flying up from and back to L.A. once a week can be a bit of a drag, so far it is a good experience.) Finding issues to trigger discussion and debate in class is forcing me to look at cases much differently. Since I already know the general holdings of the cases I am teaching, I find myself spending more time analyzing the dissenting opinion and loosing party’s position, looking for points that can foster robust in-class discussion. This week, in preparing for a class session on right of publicity, I re-read the recent 9th Circuit case of Keller v. Electronic Arts and found myself questioning whether the courts have changed the Transformative Use test set forth by the California Supreme Court and used to analyze a conflict between right of publicity and First Amendment protected speech.
The facts of Keller are straight forward. Electronic Arts produced an NCAA Football series of video games which allowed users to control avatars representing college football players and participate in simulated football games. In NCAA Football, EA replicated each school’s entire team as accurately as possible and every football player avatar had a jersey number and virtually identical height, weight, build, skin tone, hair color and home state as each real life player. EA’s player avatars reflect all of the real life attributes of the NCAA players; the only exception is that EA omitted the real life player’s name from the corresponding avatar and assigned the avatar a hometown that is different from the real player’s hometown.
On December 30, 2013, the Federal Court of Appeals, in Allergan, Inc. v. Athena Cosmetics, Inc., et al., an as-yet unpublished decision, affirmed a California District Court ruling that has the potential significantly to affect advertising law and the use of the California unfair competition statute at B&P Code §17200, et seq. to regulate commerce. http://www.cafc.uscourts.gov/images/stories/opinions-orders/13-1286.Opinion.12-26-2013.1.PDF In that case, the Federal Circuit affirmed that a California unfair competition claim is limited in injunctive effect to California only.
The key facts are as follows. Amgen, the manufacturer of Latisse eyelash thickener, sued Athena for its competing RevitaLash product, by asserting a number of federal patent and California Section 17200 unfair competition claims. The issue was whether RevitaLash could be marketed as a medical product that would grow and lengthen eyelashes. Amgen sued because its own brand is the only product presently approved by the FDA to grow eyelashes.