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August / September 2022 IP Newsletter

August 1, 2022

Isn’t it obvious?
Presumption of obviousness knocks out patent
Patents that specify ranges — for example, a range of concentrations in a topical composition — can run into a presumption of obviousness that results in their inventions being deemed unpatentable. This case reviews a case in which a pharmaceutical company ran into just that problem when the ranges cited in its patent for a skin treatment overlapped with those in some so-called “prior art.” A brief sidebar highlights the court’s conclusion that the requisite reasonable expectation of success can exist without “absolute predictability of success.”
Almirall, LLC v. Amneal Pharmaceuticals, LLC, No. 20-2331 (Fed. Cir. March 14, 2022).

Patent’s on-sale bar drains damages
There can be a fine legal line between providing a quote and an offer for sale. An inventor recently learned this lesson the hard way in Junker v. Medical Components, Inc. — and it resulted in the invalidation of his patent and the reversal of a hefty infringement damages award. This article reviews the patent’s on-sale bar and how the patent holder ran afoul of it.
Junker v. Medical Components, Inc., No. 21-1649 (Fed. Cir. Feb. 10, 2022).

Package it up
Bakery’s trade dress claim falls
When designing product packaging, companies generally want it to clearly identify their products. In Bimbo Bakeries USA, Inc. v. Sycamore, the U.S. Court of Appeals for the Tenth Circuit has ruled that a baking company’s trade dress used elements so customary in the industry that it was generic and not subject to trademark protection under the federal trademark law known as the Lanham Act. This articles summarizes the court’s findings.
Bimbo Bakeries USA, Inc. v. Sycamore, No. 18-4062, -4031, -4040 (10th Cir. March 18, 2022).

AI works shut out from copyright protection
Artificial intelligence (AI) has made inroads in a wide array of areas, but it has yet to break down the barriers to copyright protection. The U.S. Copyright Office continues to refuse to register a copyright on works created by AI. This article reviews a decision by the Review Board of the U.S. Copyright Office (board) explaining its reasoning earlier this year.
Second Request for Reconsideration for Refusal to Register a Recent Entrance to Paradise (Copyright Review Board Feb. 14, 2022).

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