• Dr. Phil wins copyright case against former segment director who had alleged false imprisonment

    It’s not everyday that a copyright case involves claims of false imprisonment but an order granting summary judgment entered on August 30th in the Eastern District of Texas granted a legal win to American TV personality and psychologist Dr. Phil and his production studio in just such a case. Judge Rodney Gilstrap decided to grant summary judgment sua sponte to Dr. Phil and Peteski Productions in a case against a former segment director for The Dr. Phil Show after the director recorded an iPhone…

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  • GRIP



    $$ This can be of particular importance if the skipper does not have a strong grip, for example due to arthritis, injury or even deformity in the hand or hands. (USP7223211)

    $$ The position is much more secure, being more in the nature of a mechanical interlock than a friction grip. (USP7223211)

    $$ The corresponding axial movement of the tube with the cap slightly releases the engagement of the end of the tube in the seal and the collet 23 can then be depressed into the cap to release the gripping engagement of the collet arms with the tube and to allow the tube to be extracted from the coupling body/cap. (USP7100948)

    $$ With this arrangement, expansion or contraction of a portion of the body of material causes the thread-like member to bite into, or relax its grip on the optical fibre at one or more distinct locations, thus increasing or decreasing the microbends formed in the optical fibre by the thread-like member and facilitating detection and location of the presence of the target measurand. (USP6586723)

    $$ The small end 16 is then driven into the hard material and the large end 18 will still get a good grip in the softer, outer wythe mortar. (USP6443238)

    $$ This lateral compliance provides important rotational "give" in the forefoot area, avoiding unwanted grip when turning the foot which can lead to leg and ankle injuries. (USP6357146)

    $$ This will allow a user’s heart beat to be picked up, and will also provide data on the area of grip pressure and the amount of pressure applied.(USP5774571)

    $$ Reliable gripping of the cartons during transfer can be achieved by accurately setting the distance between the guides 257 and thus between the belts 249. (USP5651235)

    $$ In particular the sill button is not required to be gripped and pulled and this is useful to people who have a weak grip such as the elderly and young children. (USP02074809)

    $$ …releasing the grip of the jig box on the groups… (USP02017019)

    $$ This provides a non-slip, non-shock absorbing surface for the grip member. (USP01039215)


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  • The CAFC addresses inequitable conduct and misprints in articles

    CAFC affirms ND Ill in Intercontinental v. Kellogg:

    Kraft Foods Global Brands LLC (now called Intercontinental Great Brands) owns U.S. Patent No. 6,918,532, which issued in 2005 and was supplemented with additional claims on reexamination in 2011. The ’532 patent describes and claims a food package that, after opening, can be resealed to maintain the freshness of the food items inside. Kraft brought this patent-infringement suit against Kellogg North America Co., Keebler Foods Co., and affiliates (collectively, Kellogg) in the Northern District of Illinois. The district court held that Kellogg was entitled to summary judgment of invalidity for obviousness of the asserted claims of the ’532 patent. Intercontinental Great Brands LLC v. Kellogg N. Am. Co., 118 F. Supp. 3d 1022, 1027–42 (N.D. Ill. 2015). The court also held that Kraft was entitled to summary judgment rejecting Kellogg’s counterclaim of unenforceability of the patent due to alleged inequitable conduct by Kraft, chiefly in an ex parte reexamination proceeding. Id. at 1044–45. We affirm.

    Text within footnote 3 is of interest:

    In this court, Kellogg makes only what amounts to a bare assertion of error on this point, not a meaningful argument for why the district court erred. Kellogg’s Opening Corrected Br. 56–57. For record evidence on the point, Kellogg cites only “Sec. V(C), supra,” which does not exist, and J.A. 4924–26, which does not address inequitable non-disclosure during prosecution. Kellogg has forfeited the point and certainly has not shown error. We do not further address this aspect of the inequitable-conduct issue.

    Of interest:

    Kraft contends that objective indicia must be evaluated before drawing a conclusion about whether a reasonable jury could find that a relevant skilled artisan had a motivation to combine the prior art, not merely before drawing the ultimate obviousness conclusion. But it cites no precedent so holding. Kraft does cite authorities confirming that, in some cases, objective indicia can be important evidence of obviousness, sometimes even the most important evidence. See, e.g., Plantronics, 724 F.3d at 1355; Crocs, Inc. v. Int’l Trade Comm’n, 598 F.3d 1294, 1310 (Fed. Cir. 2010). And it cites authorities that say, consistent with KSR and Graham, that objective indicia must be considered and given “fair weight” before a legal conclusion on obviousness is drawn.

    Of prior art previously considered by the USPTO:

    The “enhanced burden” point certainly confirms a practical truth about litigation: persuading a fact finder that an expert agency is incorrect on a proposition is likely to be a greater forensic challenge to the advocate than showing the proposition to be incorrect in the absence of a contrary expert-agency determination. See Sciele Pharma Inc. v. Lupin Ltd., 684 F.3d 1253, 1260–61 (Fed. Cir. 2012) (“[I]t may be harder to meet the clear and convincing burden when the invalidity contention is based upon the same argument on the same reference that the PTO already considered. Importantly, whether a reference was before the PTO goes to the weight of the evidence, and the parties are of course free to, and generally do, make these arguments to the fact finder.”). This court has not, however, ascribed any larger meaning to the “enhanced burden” point, which, the court has explained, does not mean that something more than clear and convincing evidence is required. Id.

    In any event, this is not a case in which what the PTO concluded makes a difference, for at least two reasons. First, as the district court explained, the only express analysis of the Machinery Update articles was by the examiner, who rejected the claims. The Board, which upheld the claims, did not expressly consider those articles, but relied instead on a sentence in Packaging News that does not appear in the Machinery Update articles. Intercontinental, 118 F. Supp. 3d at 1028–29. There is no basis for attributing to the Board an implied assessment of the Machinery Update articles. The record before the Board indicates that the Board simply accepted a premise that those articles were redundant of Packaging News, requiring no separate consideration. There is no specific PTO determination of nonobviousness based on the particular prior art now at issue.

    30(b)(6) testimony was involved in the cross-appeal by Kellogg:

    In its cross-appeal, Kellogg argues that the district court erred when it granted Kraft summary judgment rejecting Kellogg’s inequitable-conduct charge.9 The only issue here concerns the arguments Kraft made about Packaging News to the Board during reexamination. We see no reversible error in the district court’s conclusion that Kellogg’s evidence was insufficient to permit a finding of the intent required for inequitable conduct based on Kraft’s reexamination arguments.

    Kellogg’s charge rests on a sentence in the Packaging News article—a short article that was the central focus before the Board, including during oral argument, when the Board was specifically looking at and asking about the brief text. The relevant sentence in that article describes the Re-Seal It packaging as not using “conventional wrapping film.” J.A. 4713. Kellogg says that the sentence is a misprint and that Kraft committed inequitable conduct by not so informing the Board.


    The only alleged wrong is Kraft’s omission of any statement that the sentence in the Packaging News reference on which the Board was directly focusing was actually a misprint. But even if the sentence was a misprint, the district court properly concluded that the record does not
    support an inference of deceptive intent under the Therasense standard. Kellogg presents no admission or anything similar indicating that any relevant Kraft officer or representative during the reexamination actually believed the sentence to be a misprint. Kellogg asks for an inference as to what Kraft had to believe, given the disparity of language between the Packaging News article (“without conventional wrapping film,” J.A. 4713) and the 2002 Machinery Update article (“with conventional wrapping film,” J.A. 4424), that Kraft’s counsel had read both articles, and that a representative of a company selling packaging machines that counts Kraft as one of its biggest customers (affiliated with the reexamination requester) testified that, since “we run with conventional film,” it was obvious that the Packaging News sentence was a misprint, J.A. 6427, 6441. But without more evidence of Kraft’s belief, one reasonable inference on the record—especially given Kellogg’s burden of persuasion—is that Kraft did not believe that there was a misprint. Kellogg’s evidence from the deposition of Kraft’s counsel provides no suggestion of any awareness of a misprint. See J.A. 6941–45. The same is true as to Kraft’s inventor—appearing also as Kraft’s official company witness under Fed. R. Civ. P. 30(b)(6)—who testified that she did not recognize a misprint in Packaging News at all, much less one based on the difference in language between it and the 2002 Machinery Update, believing that “they were different packaging in different articles,” J.A. 6388, and that if there had been a misprint, it would have been corrected, J.A. 6382–83. In the reexamination, moreover, neither the ex parte requester nor the examiner suggested that the Packaging News article contained a misprint. The absence of such a statement indicates that the alleged misprint was not as obvious as Kellogg claims.

    The partial dissent of Judge Reyna highlights one key issue in the case:

    For too long, this court has turned a blind eye to what I consider to be a grave concern: the application of a prima facie test that necessarily achieves a legal determination of obviousness prior to full and fair consideration of evidence of objective indicia of non-obviousness


    I would find that the district court improperly found a prima facie case of obviousness before considering Kraft’s evidence of objective indicia of nonobviousness. I therefore respectfully dissent from Part IIA of the majority opinion

    Also, of a changed claim construction:

    That midstream change was dispositive, and because Kraft had no opportunity to address the new construction, the district court’s summary judgment was erroneous. I dissent.

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  • Federal Circuit Orders En Banc Rehearing of Decision Awarding USPTO Attorneys’ Fees in District Court Appeals from USPTO

    Author: John Nappi Editor: Kevin D. Rodkey In NantKwest, Inc. v. Matal, 860 F.3d 1352 (Fed. Cir. 2017), a Federal Circuit panel determined that 35 U.S.C. § 145 permits awarding a pro-rata share of the USPTO’s attorneys’ fees as “expenses” incurred while defending § 145 appeals from the Patent Trial and Appeal Board to a district court. […]

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  • Securing Ownership Rights in Patents in the Real World

    The basement inventor is increasingly rare, although I am old enough (and lucky enough) to know several. Invention in the “real world” is often a messy, team effort of multiple inventors, employers, contracts, research agreements, and funding agreements. As the complexity of invention multiplies, so do opportunities for unintentionally losing or jeopardizing intellectual property rights… There is often more than meets the eye when it comes to ownership of inventions. The benefits of…

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  • Functional Limitation Not Inherent, but Still Obvious

    by Dennis Crouch In a new decision, the Federal Circuit has ruled that the PTAB erred in its inherency analysis, but ultimately affirmed the claim cancellation after finding the error harmless. Southwire v. Cerro Wire (Fed. Cir. 2017) [Southwire] Back in 2012, Cerro Wire filed an inter partes reexamination request against Southwire’s U.S. Patent No. 7,557,301. […]

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  • PTAB/TTAB Event at the University of Minnesota Law School, and Some Other Upcoming Events

    This isn’t directly related to patent remedies as such, but I suspect that many readers of this blog in the Twin Cities area may be interested.  The University of Minnesota’s Corporate Institute is presenting a USPTO PTAB/TTAB event at the University of Minnesota Law School on Wednesday, September 27, from 12:30-5:00.  The event will feature live PTAB trial proceedings and live TTAB appeal and opposition proceedings, as well as educational sessions featuring judges who will share tips for successful advocacy and practitioners who will discuss litigation strategies.  Here is a link to the website, and here is a link to the Corporate Institute’s flyer advertising the event.

    Also of possible interest to local readers is the Midwest IP Institute, which takes place in Minneapolis September 28-29.  From the institute’s webpage:
    Headlining the 2017 Institute are CAFC Judge Jimmie Reyna, TTAB Chief Judge Gerard Rogers, USPTO Solicitor Nate Kelley, and Midwest Regional USPTO Director Dr. Christal Sheppard. With these headliners, IP experts from Asia, Europe, Canada, Australia, California, Texas, New Jersey, Massachusetts and across the Midwest will join a talented local faculty of experts to share real-world advice and practice tips for tackling complex legal and business issues.
    There will be sessions on, among other things, managing patent infringement risk post-Halo and best practices relating to design patents after Apple v. Samsung.  Here is a link to the website.  

    *                   *                   *

    I should also mention, for readers in the D.C. area, that the National Press Club will be hosting a panel titled “Next Up In Apple/Samsung Smartphone Wars: Design Patent Remedies Following The SCOTUS Decision,” on Wednesday, Sept. 13, from 9-10:30 a.m.  Details can be found on Professor Rebecca Tushnet’s 43(B)log.

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  • PTAB Erred by Relying on Inherency in Making Obviousness Determination Without Finding that the Limitation at Issue was Necessarily Present

    SOUTHWIRE V. CERRO WIRE: Sep. 8, 2017. Before Lourie, Moore, and Hughes.   Takeaways: The Federal Circuit held that the Patent Trial and Appeal Board erred in relying on inherency in making a determination of obviousness, because PTAB did not find that the Summers reference necessarily would achieve a 30% reduction …

    The post PTAB Erred by Relying on Inherency in Making Obviousness Determination Without Finding that the Limitation at Issue was Necessarily Present appeared first on CAFC Blog .

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