• Sesame Workshop asserts trademark violations in marketing of the movie "The Happytime Murders"

    In a post titled Sesame Workshop Sues Over ‘Happytime Murders’ Trailer Featuring ‘Ejaculating Puppets’ , SFGate
    discusses some of the story involved in a trademark/tarnishment lawsuit over the use of the word “Sesame” in a movie trailer
    for the movie “The Happytime Murders.”

    The crux of the issue involves the marketing of the movie; from SFGate:

    In a statement provided to TheWrap on Friday [25 May 2018], Sesame Workshop said that
    they “take no issue with the creative freedom of the filmmakers and their right to make and promote this movie,
    rather this is about how our name is being misused to market a film with which we have no association.”

    Variety noted the following from the lawsuit:

    ” ‘Sesame’ is not trying to enjoin defendants’ promotion or distribution of their movie.
    It is only defendants’ deliberate choice to invoke and commercially misappropriate ‘Sesame’s’ name and goodwill
    in marketing the movie — and thereby cause consumers to conclude that ‘Sesame’
    is somehow associated with the movie — that has infringed on and tarnished the ‘Sesame Street’ mark and goodwill.”

    Filed in New York [on 24 May 2018], the lawsuit also contains screen captures of social media reactions.
    One tweet read, “I’ll never look at muppets/sesame street the same way.”
    According to the suit, Sesame Workshop, the nonprofit behind the television show,
    sent a letter on May 18 to in-house counsel of STX and the Jim Henson Company,
    which is a producer on the film, demanding they stop making references to “Sesame Street” in the marketing materials.

    [emphasis added. from ‘Sesame Street’ Creators Sue STX Entertainment Over Marketing for ‘The Happytime Murders’ ]

    Separately, from blawgsearch on 26 May 2018

    Continue Reading ...
  • CAFC says plaintiff bears the burden of proving venue is proper in a patent infringement suit

    After the case was filed in the Eastern District of Texas, ZTE filed a motion to transfer the case to the Northern District of Texas under 28 U.S.C. § 1404(a) and filed a motion to dismiss for improper venue under 28 U.S.C. § 1406 and § 1400(b). The district court ruled that the Eastern District of Texas was a proper venue. Relying on Fifth Circuit law, the district court denied ZTE’s motion to dismiss, finding that ZTE “failed to meet its burden to show that it does not have a regular and…

    Continue Reading ...
  • Zuber Lawler & Del Duca Announce Addition of 6 New Attorneys

    Zuber Lawler & Del Duca announces new attorneys, scientists and engineers. Chizuko Ueno (Partner, NY). Dr. Jayashree Mitra (Partner, NY). Christopher Muessel (Of Counsel, Silicon Valley). Amanda-Jane Thomas (Associate, Los Angeles). Giselle Safazadeh (Associate, Chicago). Michelle Lee (Associate, Los Angeles).

    The post Zuber Lawler & Del Duca Announce Addition of 6 New Attorneys appeared first on IPWatchdog.com | Patents & Patent Law.

    Continue Reading ...
  • 鏡面



    $$ The tube may comprise a hollow tube having reflective internal surfaces, i.e. mirrored internal walls. / チューブは、反射性の…

    Continue Reading ...
  • CAFC in Viatech v. Microsoft: a collection of files is a file, but no argument by footnote

    The CAFC found D. Delaware erred in claim construction:

    We agree with ViaTech that the district court’s construction
    of “dynamic license database” is unsupported by
    the ’567 patent specification. The district court construed
    the term to mean “a database that resides in the digital
    content file and that is programmed to accept modifiable
    licenses.” ViaTech Tech. Inc., 2016 WL 3398025, at *5.


    Microsoft argues that the preamble language of
    Claims 1, 28 and 31, “comprising,” “containing,” and
    “including” respectively, require that all the subsequent
    recited claim elements “reside in” the claimed “digital
    content file.” We do not agree. Doing so would render the
    “embedded in” and “associated with” language in those
    claims superfluous, and a “claim construction that gives
    meaning to all the terms of the claim is preferred over one
    that does not do so.” Merck & Co. v. Teva Pharm. USA,
    Inc., 395 F.3d 1364, 1372 (Fed. Cir. 2005); see also In re
    Power Integrations, Inc., 884 F.3d at 1376. In the context
    of claim 1, the better reading of the final paragraph
    relating to the “the dynamic license database” is that it
    recites the required functional relationship between the
    database and the digital content file, not that the database
    necessarily resides in the digital content file.
    We also do not agree with the district court’s conclusion
    that “dynamic” in “dynamic license database” defines
    the license rather than the database.

    And, of the meaning of “file”

    The district court construed file as “a collection of data
    that is treated as a unit by a file system.” ViaTech
    Tech. Inc., 2016 WL 3398025, at *6. The district court
    then applied the construction to Microsoft Windows and
    found that pre-installation, the disk image file version of
    Windows is a “file,” but that post-installation, “Windows
    is a collection of files, not a single file.” ViaTech Tech.
    Inc., 2017 WL 2538570, at *5.
    We do not agree that a collection of files cannot be a
    “file” under the district court’s construction.


    Both ViaTech and Microsoft agree that such “container
    files” can be a “file” as the term is used in the ’567
    patent. Appx2501–02 (Microsoft Expert Testimony);
    Appx1172 (ViaTech Expert Testimony); Oral Arg. 23:59–
    24:26 (Microsoft’s admission during appellate argument).
    Microsoft’s expert’s analogy is illustrative: a large box
    with smaller boxes in it would still be considered a single
    package. Appx2502. Similarly, a file with multiple files
    within it can still be “a collection of data treated as a unit
    by a file system.”
    This understanding of “file” does not require changing
    the district court’s construction, only its application of
    that construction. Thus, we uphold the district court’s
    construction, but clarify that a “file” as claimed in the ’567
    patent may be a collection of files.


    A district court’s grant of summary judgment is reviewed
    in accordance with the law of the regional circuit.
    Profectus Tech. LLC v. Huawei Techs. Co., 823 F.3d 1375,
    1379 (Fed. Cir. 2016). The District of Delaware is in the
    Third Circuit, which reviews a grant of summary judgment
    de novo. Chimie v. PPG Indus., Inc., 402 F.3d 1371,
    1376 (Fed. Cir. 2005). Here, Microsoft is “entitled to a
    judgment as a matter of law” if ViaTech, as the party with
    the burden of proving infringement, “has failed to make a
    sufficient showing on an essential element of [its] case
    with respect to which [it] has the burden of proof.” Celotex
    Corp. v. Catrett, 477 U.S. 317, 323 (1986).
    Despite changing the construction of “dynamic license
    database” and clarifying the district court’s construction
    of “file” above, we find that these modifications do not
    affect the reasoning or outcome of the district court’s
    summary judgment order.

    As to “argument by footnote”

    Arguments that were not properly presented to the
    district court are waived on appeal. Sage Prods., Inc. v.
    Devon Indus., Inc., 126 F.3d 1420, 1426 (Fed. Cir. 1997).
    As a threshold matter, a single footnote is insufficient to
    present a distinct infringement theory to the district
    court. See SmithKline Beecham Corp. v. Apotex Corp.,
    439 F.3d 1312, 1320 (Fed. Cir. 2006). Here, the footnote
    did not even present a distinct alternative infringement
    theory: there is no element by element analysis of a postinstallation
    version of Windows, or even a statement that
    the post-installation version is a file that infringes the
    ’567 patent too. And regarding the four unquoted, uncited
    paragraphs of ViaTech’s 147 paragraph expert report,
    ViaTech agrees that the district court was not obligated to
    address theories presented in an expert report when the
    theories were not raised or cited in briefing before the
    court. Oral Arg. 13:04–13:58; see also Pandrol USA, LP v.
    Airboss Ry. Prod., Inc., 320 F.3d 1354, 1366 (Fed. Cir.
    2003) (“There is no onus on the district court to distill any
    possible argument which could be made based on the
    materials before the court. Presenting such arguments in
    opposition to a motion for summary judgment is the
    responsibility of the non-moving party, not the court.”)
    (citation omitted).

    Continue Reading ...
  • Pro se appellant Jerry Artrip fails at CAFC

    The outcome:

    Jerry Artrip appeals the district court’s dismissal of
    his case. Mr. Artrip asks us to reverse the district court
    and remand so that he may file a fourth amended complaint
    charging Appellees Alcoa, Inc. (“Alcoa”), Ball Corp.,
    and Ball Metal Beverage Container Corp. (together,
    “Ball”) with patent infringement.

    We lack jurisdiction to review the dismissal of Mr. Artrip’s
    claims against Alcoa. And because we find that
    Mr. Artrip’s third amended complaint does not satisfy the
    legal pleading standard and that the district court did not
    abuse its discretion in denying leave for further amendments,
    we affirm the district court’s dismissal of
    Mr. Artrip’s claims against Ball with prejudice.

    The problem

    We have jurisdiction only if Mr. Artrip filed a timely
    notice of appeal that complies with Rule 3 of the Federal
    Rules of Appellate Procedure. See Smith v. Barry,
    502 U.S. 244, 248–49 (1992) (“Rule 3’s dictates are jurisdictional
    in nature, and their satisfaction is a prerequisite
    to appellate review.”).


    Among other requirements, Rule 3 states that a notice
    of appeal must “designate the judgment, order, or part
    thereof being appealed.” Int’l Rectifier Corp. v. IXYS
    Corp., 515 F.3d 1353, 1357 (Fed. Cir. 2008) (emphasis
    added) (quoting Fed. R. App. P. 3(c)(1)); see also Durango
    Assocs., Inc. v. Reflange, Inc., 912 F.2d 1423, 1425
    (Fed. Cir. 1990) (finding party “cannot now expand the
    scope of its specifically limited notice of appeal”). Our
    sister circuits have found that they do not have jurisdiction
    to review orders other than those identified in the
    notice of appeal. See, e.g., Doran v. J.P. Noonan Trans.,
    Inc., 853 F.3d 66, 69 (1st Cir. 2017) (finding “no basis to
    reverse an order” other than order designated in notice);
    In re GNC Corp., 789 F.3d 505, 512 (4th Cir. 2015) (dismissing
    appeal as to order not identified in notice); Stephens
    v. Jessup, 793 F.3d 941, 943 (8th Cir. 2015) (finding
    no jurisdiction to review order dismissing first party
    where notice of appeal identified separate order only
    dismissing second party).
    Here, Mr. Artrip’s notice of appeal identifies only the
    district court’s November 3, 2017 order dismissing the
    third amended complaint against Ball. Alcoa is mentioned
    only in the notice’s case caption. Although we
    construe notices of appeal liberally, Mr. Artrip’s notice
    does not indicate an intent to appeal the district court’s
    earlier order dismissing the second amended complaint
    and terminating Alcoa. See Smith, 502 U.S. at 248 (permitting
    courts to find compliance “‘with the rule if the
    litigant’s action is the functional equivalent of what the
    rule requires’” but explaining “[t]his principle of liberal
    construction does not, however, excuse noncompliance
    with the Rule. Rule 3’s dictates are jurisdictional” (quoting
    Torres v. Oakland Scavenger Co., 487 U.S. 312, 317

    Continue Reading ...
  • The Trump FDA publishes list of Reference Listed Drug (RLD) Access Inquiries

    The FDA has posted a list of 50 drugs for which there have been Reference Listed Drug (RLD) Access Inquiries, of which two drugs (Ampyra and Tecfidera) have relation to multiple sclerosis.

    This particular issue relates to samples needed by a potential generic maker to show, through testing, that its generic product is
    bioequivalent to the proprietary drug [also termed the reference listed drug (RLD) ]. As the FDA notes

    To obtain approval for a generic drug, the generic company needs to show, among other things, that its version of the product is bioequivalent to the RLD. This usually requires the generic company to conduct bioequivalence studies comparing its product to the RLD, and to retain samples of the RLD used in testing after a study is complete. To conduct these kinds of bioequivalence studies, the generic company needs to obtain samples (generally between 1,500 and 5,000 units) of the RLD.

    The list of 50 drugs published by the FDA relates to instances in which the generic company has had difficulties obtaining the
    samples needed for testing. The FDA notes

    At times, certain “gaming” tactics have been used to delay generic competition. One example of such gaming is when potential generic applicants are prevented from obtaining samples of certain brand products necessary to support approval of a generic drug. The inability of generic companies to purchase the samples they need slows down, or entirely impedes, the generic drug development process – leading to delays in bringing affordable generic alternatives to patients in need.

    As described in further detail below, these kinds of problems with generic access to necessary samples may occur when brand products are subject to limited distribution – whether the company has voluntarily adopted limitations on distribution, or the limitations have been imposed in connection with a Risk Evaluation and Mitigation Strategy (or REMS), a program that FDA implements for certain drugs to help ensure that their benefits outweigh their risks. In some cases, brand drug sponsors may use these limited distribution arrangements, whether or not they are REMS-related, as a basis for blocking potential generic applicants from accessing the samples they need.

    Neither Ampyra nor Tecfidera are stated to have a REMS issue.

    See also the post from multiplesclerosisnewstoday
    Two MS Medications Appear on FDA’s Shame List

    Note also activities of Kyle Bass related to Ampyra and Tecfidera

    The IPR petitions of Kyle Bass on Acorda/Ampyra denied by PTAB

    A tale of two tribunals. Four Acorda multiple sclerosis patents go from –not invalid– to invalid in less than one month!

    PTAB declines to institute IPR against Biogen’s US 8,399,514 related to the MS drug Tecfidera

    Kyle Bass loses challenge to MS drug Tecfidera on US Patent 8,399,514 in IPR2015-01993

    One might speculate that the Obama administration wss more “big pharma friendly” than is the Trump administration.

    Continue Reading ...