How Does One “Use” Flowers?
Patently-O
by Dennis Crouch
1h ago
by Dennis Crouch We all love flowers, but what is their real purpose, their “use.”  That was a key question the court faced when deciding In re WinGen LLC (Fed. Cir. 2023). The utility patent at issue covers a petunia plant.  Here, the Federal Circuit has affirmed that the claims are invalid based upon a pre-filing trade-show display of the ornamental plant — holding that the display counted as a “public use.”  “The displaying of ‘Cherry Star’ … was … undoubtedly a use for its intended purpose: ornament.” The inventors here used conventional plant breeding to create a new form ..read more
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Trademark Registration: 100% THAT BITCH
Patently-O
by Dennis Crouch
3d ago
by Dennis Cxrouch In re Lizzo LLC (TTAB 2023) In a new precedential opinion, the TTAB has sided with the musical artist Lizzo — agreeing to register her mark “100% THAT BITCH” for use on apparel.  The Trademark Examining Attorney had refused registration on “failure-to-function” — concluding that the phrase was a commonplace expression used to express a well-recognized sentiment. The phrase comes from Lizzo’s 2017 song Truth Hurts (remade in 2019) that has become a viral sleeper hit.  The original line in the song is “I just took a DNA test, turns out I’m 100% that bitch.” But Lizzo ..read more
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Upcoming Supreme Court Oral Arguments in IP & Tech Cases
Patently-O
by Dennis Crouch
3d ago
by Dennis Crouch The Supreme Court will be handling some significant cases over the next few months that may have a major impact for folks working in IP & Tech fields. The following is brief list sorted by the date of oral arguments. Feb 21 – Gonzales v. Google (Does the safe harbor of CDA Section 230 shield Google from liability for encouraging users to view offending videos). Feb 22 – Twitter v. Taamneh (Can Twitter be held liable for providing a service that aids and abets terrorism, despite its substantial non-violative uses). March 21 – Abitron v. Hetronic (Extraterritorial applicat ..read more
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Transfer Venue: Texas Corp Status Given No Weight
Patently-O
by Dennis Crouch
4d ago
In re Google LLC (Fed. Cir. 2023) This is another mandamus action win by Google on convenience grounds. The Federal Circuit has ordered the case moved out of the Western District of Texas (Waco) to the Northern District of California. Jawbone Innovations, LLC sued Google for patent infringement back in 2021 in W.D.Tex. (Waco).  Jawbone is a Texas company and has a physical base in Waco. But, as the court noted, the company was formed only a few months before the lawsuit was filed.  Some of you may own Jawbone headphone/speaker products.  The operating company closed in 2017, and ..read more
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Cancelling a Patent Claim
Patently-O
by Dennis Crouch
5d ago
by Dennis Crouch The pending case of Jump Rope Systems v. Coulter Ventures is fascinating to me as someone who teaches both property and civil procedure. The basic questions: (1) As an inter partes review (IPR) proceeding draws to a close – toward cancellation – at what point are the claims no longer enforceable? (2) What is the effect of cancellation, in particular, is it like canceling a magazine subscription where the former subscriber isn’t off the hook for past-due bills; or, is it like an annulment – an Ab Initio Extinguishment?  The case also (3) raises a straight-up due process ch ..read more
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Federal Circuit Dataset & Stats: January 2023 Update
Patently-O
by Jason Rantanen
6d ago
By Jason Rantanen It’s time for the January 2023 Federal Circuit statistics update! As I’ve done for the last few years, below I provide some statistics on what the Federal Circuit has been doing over the past year. These charts draw on the Federal Circuit Dataset Project, an open-access dataset that I maintain that contains information on all Federal Circuit decisions and docketed appeals.  While previous versions of the dataset have been limited to merits decisions, this year we began including non-merits terminations as well.  Currently, all non-merits terminations from 2022 are ..read more
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Three New Supreme Court Cases:
Patently-O
by Dennis Crouch
1w ago
by Dennis Crouch Vidal v. Elster.  Elster is seeking to register the mark TRUMP TOO SMALL, but was initially rebuffed because the law prohibits registration of a mark consisting of the name of a particular individual. 15 U.S.C. 1052(c).  On appeal though, the Federal Circuit found such a restriction unconstitutional — especially in this situation where the mark forms a criticism.  The court’s decision follows the logic of two recent Supreme Court cases on point: Tam (the SLANTS – disparaging marks) and Brunetti (FUCT – scandalous marks).  In its petition, however, the US G ..read more
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Chamberlain Closes on Overhead Door
Patently-O
by Dennis Crouch
1w ago
The Chamberlain Group v. Overhead Door Corp., 21-CV-00084 (E.D. Tex. 2023) Overhead door won a jury verdict in this case back in March 2022.  However, Judge Gilstrap ordered a partial new trial because Overhead Door had failed to disclose key features of its products until just before trial. New Jury, New Verdict.  Second time around, the new jury found the asserted claims valid and not infringed — setting the royalty at $43 million. U.S. Patent No. 8,587,404. 4. A movable barrier system with a moving-barrier imminent motion notification, the system comprising: a movable barr ..read more
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Rep. Issa – House IP Leader
Patently-O
by Dennis Crouch
1w ago
Ryan Davis at IP360 is reporting that Rep. Darryl Issa is the new chair of the House Subcommittee on Courts, Intellectual Property, and the Internet. He was previously Chair 2015-2019.   Issa has been called-out by the group US Inventor for his previous failure to focus on their particular concerns.   He has not announced particular plans for the committee. Sen. Chris Coons is most likely to take over as chair of the parallel Senate Committee following Sen. Leahy’s retirement ..read more
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Jack Daniels vs Bad Spaniels: Funny Jokes and Free Speech
Patently-O
by Dennis Crouch
1w ago
It is hard for me to believe that the US Supreme Court is hearing the case of Jack Daniels vs Bad Spaniels. For those who don’t know, Jack Daniels is a form of Whiskey.  VIP Products makes and sells a squeaking dog toy known as “bad spaniels.” The setup here is a humorous parody, but JD is not laughing. Jack Daniels sent a cease-and-desist letter to VIP who then filed a declaratory judgment action in Arizona. The district court sided with JD on both TM infringement and dilution and issued an injunction to stop ongoing sales and distribution.  (The excrementory references in Bad Span ..read more
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