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IP Newsletter - April / May 2019

April 1, 2019

Print still matters
Trade show catalog bars patent
The U.S. Patent and Trademark Office won’t consider an invention novel enough to qualify for a patent if a publicly available printed publication “anticipated” it. With a recent ruling, the U.S. Court of Appeals for the Federal Circuit (which hears all appeals concerning patents) provided some guidance on how it determines whether a publication was publicly available on the relevant date. This article reviews the case and the court’s opinion and includes a short sidebar highlighting the effect of the U.S. Supreme Court’s decision in SAS Institute, Inc. v. Iancu, mandating that the Patent Trial and Appeal Board institute inter partes review either on all of the claims a petitioner has challenged or none of them.
Nobel Biocare Svcs. AG v. Instradent USA, Inc., No. 17-2256, Sept. 13, 2018, Fed. Cir.
SAS Institute, Inc. v. Iancu, No. 16–969, April 24, 2018, S.Ct. 

Stairway back to court
Erroneous jury instructions trip up copyright verdict
The 2016 ruling by a trial court in a copyright infringement case over Led Zeppelin’s classic rock anthem “Stairway to Heaven” garnered a lot of attention. The U.S. Court of Appeals for the Ninth Circuit has now sent the case back to the trial court (which ruled in the band’s favor). This article looks at the court’s ruling, which provides some valuable light on how to prove copyright infringement of music in the process.
Skidmore v. Led Zeppelin, No. 16-56057, Sept. 28, 2018, 9th Cir.

How ranges described in prior art trigger obviousness presumption
Some patents specify ranges to account for variability ¬— for example, a range of temperatures in which a process occurs. These types of patents can run into obviousness issues that can invalidate them if the range overlaps with ranges detailed in so-called “prior art.” This article explains why patentees in such cases aren’t totally out of luck, though, as they have the opportunity to rebut the presumption of obviousness.
E.I. DuPont de Nemours & Co. v. Synvina C.V., No. 17-1977, Sept. 17, 2018, Fed. Cir.

Can you sue foreign corporations for trademark infringement?
E-commerce has allowed foreign corporations to reach new customers far beyond their borders. Sales to U.S. customers, though, might open up a foreign company to litigation in the United States. This article summarizes a decision by the U.S. Court of Appeals for the First Circuit shedding light on how a foreign defendant can land in federal court for alleged trademark infringement.
Plixer Int’l, Inc. v. Scrutinizer GmbH, No. 18-1195, Sept. 13, 2018, 1st Cir.

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