• Can You Trademark a Color?

    Yes, under certain circumstances you can trademark a color… Examples of protectable color marks include: red soles for women’s high-heel dress shoes, where the rest of the shoe is not also red (Louboutin); pink fiberglass insulation (Owens-Corning); red knobs on cooking appliances (Wolf); light blue for jewelry boxes (Tiffany); brown for parcel delivery trucks and uniforms (UPS); magenta for telecommunications services (T-Mobile); and orange for scissor handles (Fiskars).

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  • Northern Florida District Judge Decides That Dentist’s Copyright Claims Have No Bite

    On June 20th, U.S. District Judge Mark Walker of the Northern District of Florida issued an order on summary judgment which terminated Pohl v. Officite, a copyright infringement case, before it headed to trial. The order, which contains about as much legal precedent as it does puns and wordplay, reflects the judge’s determination that before-and-after images of dental work do not meet the threshold of creativity required to establish copyright protection for the photos.

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  • CAFC affirms PTAB in Jazz Pharmaceuticals

    The outcome:

    Jazz Pharmaceuticals, Inc. (“Jazz”) appeals from six
    inter partes review (“IPR”) decisions of the United States
    Patent and Trademark Office Patent Trial and Appeal
    Board (the “Board”).1 Collectively, the decisions held
    certain claims of Jazz’s U.S. Patents 7,668,730 (“’730
    patent”), 7,765,106, 7,765,107, 7,895,059, 8,589,182,
    8,457,988 (“’988 patent”), and 8,731,963 (“’963 patent”)
    (together, the “patents in suit”) invalid as obvious. Because
    the Board did not err in its conclusions of obviousness,
    we affirm.

    TSM arises at the end of the opinion

    We also agree with Amneal that Jazz misinterprets
    both the Supreme Court’s decision in KSR and this court’s
    obviousness precedent. KSR did not impose a rigid requirement
    to identify both a problem to be solved in the
    art and a finite universe of potential options. Rather, the
    Supreme Court rejected the teaching, suggestion, or
    motivation test, because the Court considered that the
    test was a “[r]igid, preventative rule[] that den[ies] factfinders
    recourse to common sense.” KSR, 550 U.S. at 421.

    Furthermore, the Supreme Court also rejected the “assumption
    that a person of ordinary skill attempting to
    solve a problem will be led only to those elements of prior
    art designed to solve the same problem.” Id. at 420. We
    have similarly recognized that persons of ordinary skill
    have diverse motivations, including “[t]he normal desire
    . . . to improve upon what is already generally known.” In
    re Ethicon, Inc., 844 F.3d 1344, 1351 (Fed. Cir. 2017); see
    also Otsuka Pharm. Co. v. Sandoz, Inc., 678 F.3d 1280,
    1291 (Fed. Cir. 2012) (“New compounds may be created
    from theoretical considerations rather than from attempts
    to improve on prior art compounds.”).
    KSR did state that “[w]hen there is a design need or
    market pressure to solve a problem and there are a finite
    number of identified, predictable solutions, a person of
    ordinary skill has good reason to pursue the known options
    within his or her technical grasp.” KSR, 550 U.S. at
    421. But it did not set forth such factors as part of a
    mandatory formula. To treat them as such would be
    inconsistent with KSR’s holding and our own case law.
    Thus, the Board did not err in concluding that implementing
    the ACA materials’ centralized database system on
    multiple computers “would have been a predictable use of
    a known distributed data system according to its established
    function.” ’730/’988 Decision, 2016 WL 7985458, at
    *25 (citing KSR, 550 U.S. at 417). As Jazz has presented
    no other arguments challenging the Board’s finding of a
    motivation to modify, we affirm its holdings with respect
    to claims 2 and 10 of the ’988 patent and claims 24, 26,
    and 27 of the ’963 patent

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  • CUSTOPHARM INC. loses its appeal against Endo

    The CAFC affirmed the “not invalid” determination of Judge Robinson of D. Delaware:

    After a four-day bench trial on invalidity, the
    district court concluded that Custopharm had not proven
    that the claims were invalid under 35 U.S.C. § 103.
    Custopharm appealed. For the reasons below, we find no
    reversible errors in the district court’s conclusion and
    accordingly, we affirm

    Of review standards:

    “Obviousness is a question of law based on underlying
    findings of fact.” In re Kubin, 561 F.3d 1351, 1355 (Fed.
    Cir. 2009). We review the district court’s conclusions of
    law de novo. Eli Lilly & Co. v. Teva Parenteral Meds.,
    Inc., 845 F.3d 1357, 1372 (Fed. Cir. 2017). And we review
    the district court’s factual findings for clear error. Par
    Pharm., 773 F.3d at 1194.

    There was an issue of “which guidelines”:

    First, Custopharm’s overdose argument is predicated
    on the assumption that a skilled artisan would have
    applied the AACE Guidelines to the exclusion of other
    guidelines that existed at the time, including the FDA
    Guidelines. Under the FDA Guidelines, the range of
    normal testosterone is 300 to 1000 ng/dl or 10 to
    35 nmol/l. The record evidence sufficiently demonstrates
    that the most prevalently applied guidelines in clinical
    practice were the FDA Guidelines, not the AACE Guidelines.
    The studies underlying the Articles all employed
    the FDA Guidelines.

    Of motivation

    Second, Custopharm argues that the obviousness of
    an invention does not require using the “best” motivation8;
    only a “suitable” motivation is required. Par
    Pharm., 773 F.3d at 1197–98. But this is a misunderstanding
    of Custopharm’s burden. While the FDA Guidelines
    do not teach away from using the AACE Guidelines,
    the district court found that Custopharm had not shown,
    by clear and convincing evidence, that a skilled artisan
    would have recognized that patients injected with
    1000 mg TU were being overdosed. To meet its burden,
    Custopharm needed to do more than merely show that the
    prior art does not preclude lowering the dose of TU.
    Custopharm needed to affirmatively demonstrate that a
    skilled artisan would have been motivated to lower the
    dose of TU despite no clear evidence of overdosing under
    the FDA Guidelines. See Pfizer, Inc. v. Apotex, Inc., 480
    F.3d 1348, 1361 (Fed. Cir. 2007) (“[T]he burden falls on
    the challenger of the patent to show by clear and convincing
    evidence that a skilled artisan would have been
    motivated to combine the teachings of the prior art references
    to achieve the claimed invention . . . .”).

    Of inherency:

    To establish that a prior art reference inherently—
    rather than expressly—discloses a claim limitation, “the
    limitation at issue necessarily must be present, or [is] the
    natural result of the combination of elements explicitly
    disclosed by the prior art.” Par Pharm., 773 F.3d at 1196.
    Here, Custopharm argues that the vehicle formulation
    was “necessarily present” in the Articles because it was
    later revealed to be the actual formulation the authors of
    the Articles used in their reported clinical studies. We
    An inherent characteristic of a formulation can be
    part of the prior art in an obviousness analysis even if the
    inherent characteristic was unrecognized or unappreciated
    by a skilled artisan. See In re Kao, 639 F.3d 1057,
    1070 (Fed. Cir. 2011). But, inherency “may not be established
    by probabilities or possibilities.” Par Pharm., 773
    F.3d at 1195 (quoting In re Oelrich, 666 F.2d 578, 581
    (CCPA 1981)). “The mere fact that a certain thing may
    result from a given set of circumstances is not sufficient.”
    Id. (citing In re Rijckaert, 9 F.3d 1531, 1533–34 (Fed. Cir.
    1993); Oelrich, 666 F.2d at 581 (“[M]ere recitation of a
    newly discovered function or property, inherently possessed
    by things in the prior art, does not distinguish a
    claim drawn to those things from the prior art.”); In re
    Shetty, 566 F.2d 81, 86 (CCPA 1977) (“[T]he inherency of
    an advantage and its obviousness are entirely different
    questions. . . . Obviousness cannot be predicated on what
    is unknown.” (quoting In re Spormann, 363 F.2d 444, 448
    (CCPA 1966))).

    Footnote 9 delves into waiver:

    Custopharm, however, did not respond to Endo’s contention
    that Custopharm waived this argument by failing to
    raise it before the district court. We agree with Endo. In
    its reply brief, Custopharm argued that Helsinn
    Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., is a
    pertinent intervening case, but did not explain how it is
    an intervening change in law to the inherency doctrine,
    especially given that it is an on-sale bar case. 855 F.3d
    1356 (Fed. Cir. 2017).

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  • 合計



    $$ The summed peak shows the ion peak which will actually be observed. / 合計ピークは、実際に測定されるイオンピークを示す。(USP8283628)

    $$ At each pixel on the detector array, the intensities from the overlapping, coded images are summed. / 検出器アレイ上の各ピクセルで、オーバラップするコード化画像からの輝度が合計される。(USP8068680)

    $$ Reaction torque is the sum of the torques input to and output from the variator. / 反力トルクは変動器に対して入出力するトルクの合計である。(USP7625309)

    $$ The adder (3104) sums these maximum values from each channel. / 加算器(3104)は各チャネルからのこれらの最大値を合計する。(USP7577260)

    $$ Similarly, the free energy, G, is also the sum of all individual contributions: / 同様に、自由エネルギーGもまた、全ての個々の貢献の合計である。(USP7053975)

    $$ This pad has a total of 46 studs. / このパッドは合計で46個のスタッドを有する。(USP8201751)

    $$ A total of 262,144 colours shades are possible. / 合計で262,144の色調が可能である。(USP6611142)

    $$ This uses in total only αB units of bandwidth (α=parity information overhead>1). / これは、合計で帯域幅のαBユニットを使用する(α=パリティ情報オーバヘッド>1)。(USP6553020)

    $$ The total amount of water (including that originating from the sponge) was 89.2 g. / 水の合計量(スポンジからの水を含む)は89.2gであった。(USP6548730)

    $$ Total network interference for the solution extracted at each iteration is shown. / 各反復において抽出された解に対する合計のネットワーク干渉が示されている。(USP6539228)

    $$ Instead of sending the new payment increment, the total sum of all payments ever sent to the broadcaster is transmitted over-air. (USP4802215)

    $$ In addition, the read and write operations after each instruction increase the total time needed to produce the full 32-bit quotient. (USP5748518)

    $$ The total time for execution is the length of time that the longest branch takes to execute. (USP6691301)

    $$ Four tests are required per row, thus the total time to test the array becomes 64 μs. (USP5500823)

    $$ In some tests successful joints have been achieved in a stack thickness of 8 mm. / いくつかの試験では、合計の厚さが8mmの積層シートの締結に成功している。(USP8070406)


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