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IP Newsletter - June / July 2018

June 1, 2018

Case closed
Federal Circuit confirms expansion of liability for divided patent infringement
Patentees have long struggled when trying to enforce method patents in “divided infringement” cases, where multiple parties carried out the required steps. The Federal Circuit Court of Appeals seems to have come to their rescue, though. This article reviews a case in which the court made clear that it’s applying a looser standard when it comes to establishing direct infringement liability in divided infringement cases. A sidebar notes the court’s rejection of the argument that the conditioning required to attribute the actions of a third party to an alleged infringer can’t occur if the third party isn’t obligated to perform part of the patented method.
Travel Sentry, Inc. v. Tropp, No. 16-2386, Dec. 19, 2017, Fed. Cir.
Akamai Technologies, Inc. v. Limelight Networks, Inc. (Akamai V), Nos. 2009-1372, 2009-1380, 2009-1416, 2009-1417. Aug. 13, 2015, Fed. Cir.

Will innocent, immaterial inaccuracies defeat copyright registration?
Mistakes happen — but, thanks to a new ruling by the Eleventh Circuit Court of Appeals, mistakes in a copyright registration application don’t necessarily doom the resulting registration. This article summarizes a case finding that the registration will be upheld unless it contains material inaccuracies and the registrant intended to conceal relevant information from the Copyright Office.
Roberts, II v. Gordy, No. 16-12284, Dec. 15, 2017, 11th Cir.

What makes a patent invalid due to indefiniteness?"
The role of functional language in patent applications
Although in 2014 the U.S. Supreme Court announced a standard for assessing whether patent language is fatally indefinite, the limits of the Court’s decision are still being determined. This article reviews a decision from the U.S. Federal Circuit Court of Appeals that provided additional guidance — and it seems to favor patentees.
BASF Corp. v. Johnson Matthey Inc., No. 16-1770, Nov. 20, 2017, Fed. Cir.
Nautilus, Inc. v. Biosig Instruments, Inc., No. 13-369, June 2, 2014, S.Ct.

Bar fight
Court knocks down prohibition against immoral or scandalous marks
Just last year, in Matal v. Tam, the U.S. Supreme Court opened the door to the registration of trademarks that could be considered offensive when it ruled that the disparagement clause in the federal trademark law was unconstitutional. This article discusses a decision from the U.S. Federal Circuit Court of Appeals that struck down the bar against the registration of trademarks that are “immoral or scandalous.”
In re Brunetti, No. 15-1109, Dec. 13, 2017, Fed. Cir.
Matal v. Tam, No. 15-1293, June 19, 2017 (U.S.)

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