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April 2007
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June 2007

Incase Inc. v. Timex Corp.

Incase, Inc. ("Incase"), won jury verdicts against Timex Corporation ("Timex") in the United States District Court for the District of Massachusetts on its claims of misappropriation of trade secret, breach of contract, and implied contract. The district court subsequently granted judgment as a matter of law to Timex on the trade secret and implied contract claims. In a subsequent bench trial, the district court also found that Timex had committed unfair and deceptive trade practices, but denied Incase punitive damages. Incase now appeals the judgment as a matter of law and the denial of punitive damages. Timex cross-appeals on the denial of its motions for judgment as a matter of law on the remaining claim, and the holding that it committed unfair and deceptive trade practices. Timex also appeals the denial of its motion for a new trial. We affirm the decisions in all respects.

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Abercrombie & Fitch Co. v. Moose Creek, Inc

Abercrombie & Fitch Co. interlocutorily appeals the district court’s denial of Abercrombie’s motion for a preliminary injunction enjoining Moose Creek, Inc. from using newly designed moose marks pending the resolution of Abercrombie’s suit alleging trademark infringement and other causes of action under federal and state law. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).

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Monsanto Co. v. McFarling

This is the third time this case has been before us. In the first appeal, we
affirmed the district court’s entry of a preliminary injunction in favor of the plaintiff,
Monsanto Company, and against the defendant, Homan McFarling. Monsanto Co. v.
McFarling, 302 F.3d 1291 (Fed. Cir. 2002) (McFarling I). In the second appeal, we
upheld the district court’s rulings holding Mr. McFarling liable for breach of contract and
rejecting Mr. McFarling’s counterclaims and affirmative defenses. We reversed the
judgment in that case, however, holding that the liquidated damages provision in the
parties’ contract was an unenforceable penalty, and we remanded for a determination of
Monsanto’s actual damages. Monsanto Co. v. McFarling, 363 F.3d 1336 (Fed. Cir.
2004) (McFarling II). After a damages trial, the district court entered an award of damages for patent infringement, rejected Mr. McFarling’s arguments for vacating the
judgment of liability, and refused Monsanto’s request to modify the permanent
injunction. We affirm on both Mr. McFarling’s appeal and Monsanto’s cross-appeal.

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In re Bayer Aktiengesellschaft

Bayer Aktiengesellschaft (Bayer) appeals the Trademark Trial and Appeal Board (Board) ruling that the proposed mark ASPIRINA is merely descriptive for analgesic goods. In re Bayer Aktiengesellschaft, Serial No. 78/212,751 (TTAB Mar. 17, 2006) (Final Decision). Because the Board’s ruling is supported by substantial evidence, we affirm.

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Honeywell Int'l Inc. v. Universal Avionics Sys. Corp.

In a series of decisions on summary judgment, the United States District Court for the District of Delaware invalidated certain claims and found no infringement of patents owned by Honeywell International Inc. and Honeywell Intellectual Properties Inc. (Honeywell). Honeywell Int'l, Inc. v. Universal Avionics Sys. Corp., 343 F. Supp. 2d 272 (D. Del. 2004) (Final Decision); Honeywell Int'l, Inc. v. Universal Avionics Sys. Corp., 264 F. Supp. 2d 135 (D. Del. 2003) (Claim Construction Decision); Honeywell Int'l, Inc., v. Universal Avionics Sys. Corp., 288 F. Supp. 2d 638 (D. Del. 2003) (Invalidity Decision); Honeywell Int'l, Inc., v. Universal Avionics Sys. Corp., 289 F. Supp. 2d 493 (D. Del. 2003) (Non-infringement Decision). Honeywell contests issues of claim construction, infringement, and subject matter jurisdiction on a few claims withdrawn from the litigation. Universal Avionics Systems Corp. (Universal) and Sandel Avionics Inc. (Sandel) cross-appeal the district court's final decision that other remaining claims were not barred by public uses or premature sales activity. Final Decision, 343 F. Supp. 2d at 309. In addition, Sandel appeals the district court's determination that Honeywell did not commit inequitable conduct. Id. at 313. Universal further appeals the district court's denial of its commercial counterclaims. Final Decision, 343 F. Supp. 2d at 319. Finding errors, this court vacates the claim construction of a few terms and remands for a new infringement determination. This court affirms the district court’s retention of jurisdiction over the withdrawn claims and the district court's decision that § 102(b) does not erect a bar.

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McKesson Info. Solutions, Inc. v. Bridge Med., Inc.

Plaintiff McKesson Information Solutions, Inc. ("McKesson") appeals the final decision of the United States District Court for the Eastern District of California dismissing McKesson's infringement suit against defendant Bridge Medical, Inc. ("Bridge") after the court found the only patent at issue, U.S. Patent No. 4,857,716 ("the '716 patent"), unenforceable due to inequitable conduct.

As set forth in considerable detail below, this case involves McKesson's nondisclosure of three items of information during prosecution of the '716 patent in a setting where the applicant had co-pending applications. The district court found each of the three nondisclosures individually and collectively material to prosecution of the application that led to the '716 patent. With regard to deceptive intent regarding each nondisclosure, the district court found circumstantial evidence strongly supports an inference of deceptive intent. After assessing all the facts, the district court held that McKesson failed to provide a credible explanation for the material nondisclosures. As the district court noted, this was not a case of mistake or negligence—the prosecuting attorney testified that he would make all the same nondisclosure decisions again if prosecuting the same applications today.

The district court's thorough written opinion documents the court's correct understanding and application of the relevant precedent. The issues of materiality and intent are fact-driven. With regard to the issue of intent, the law recognizes that deceptive intent is virtually never shown or disproved by direct evidence. Instead, the ultimate fact finding on the issue depends on assessment of all the inferences, favorable and unfavorable, that can be drawn from pertinent evidence. To prevail on appeal, McKesson must demonstrate that the district court's findings of fact are clearly erroneous. After careful review of the record, we conclude that McKesson has not met its burden, and we therefore affirm.

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Wechsler v. Macke Int'l Trade, Inc.

Macke International Trade, Inc. (“Macke”) and Anthony O’Rourke appeal decisions of the United States District Court for the Central District of California granting judgment as a matter of law (“JMOL”) that O’Rourke was personally liable for inducing Macke’s infringement of U.S. Patent No. 5,636,592 (“the ’592 patent”) owned by Lawrence I. Wechsler, Wechsler v. Macke Int’l Trade, Inc., 232 F.R.D. 355 (C.D. Cal. 2005) (“Wechsler II”), and denying JMOL that the jury’s award of lost profit damages to Wechsler for Macke’s infringement of the ’592 patent was not supported by substantial evidence. Wechsler v. Macke Int’l Trade, Inc., 399 F. Supp. 2d 1088 (C.D. Cal. 2005) (“Wechsler III”). Wechsler cross-appeals the district court’s grant of summary judgment that Macke is not the alter ego of O’Rourke. Wechsler v. Macke Int’l Trade, Inc., 327 F. Supp. 2d 1139 (C.D. Cal. 2004) (“Wechsler I”). We reverse the district court’s grant of JMOL that O’Rourke was personally liable for inducing infringement of the ’592 patent and the district court’s award of lost profit damages. We affirm the district court’s grant of summary judgment that Macke is not the alter ego of O’Rourke.

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Gen. Mills, Inc. v. Kraft Foods Global, Inc.,

General Mills, Inc. (“General Mills”) appeals from a final judgment by the United States District Court for the District of Minnesota dismissing its claim for patent infringement against Kraft Foods Global, Inc. (“Kraft”), on the ground that the claim is barred by a covenant not to sue that General Mills granted to Kraft’s predecessor in interest, the Farley Candy Company (“Farley”). Kraft cross-appeals, challenging the district court’s decision to treat its counterclaim to General Mills’ original complaint as having been abandoned after General Mills filed an amended complaint. Because Kraft became the successor to Farley’s rights under the covenant not to sue before commencing the allegedly infringing activities and did not lose that status during the period at issue on appeal, and because the district court did not abuse its discretion in deeming Kraft’s counterclaim to have been abandoned, we affirm as to both appeals.

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Brand v. Miller

Appellants Robert D. Brand, Capital Machine Co., Inc. and Indiana Forge, LLC (“Brand”) appeal from the judgment of the Board of Patent Appeals and Interferences (“Board”) of the U.S. Patent and Trademark Office (“PTO”) in Interference No. 105,215, entering judgment for appellees Thomas A. Miller, Darrel C.  inkston, and Miller Veneers, Inc. (“Miller”) on the issue of priority. The Board concluded that Brand derived  the subject matter of the single count from Miller. We hold that the Board impermissibly relied on its own expertise in determining the question of derivation and that the Board’s conclusion is not supported by substantial record evidence. We therefore reverse and remand for further proceedings consistent with this opinion.

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Kahle v. Gonzales

The opinion filed on January 22, 2007, Slip op. at 889, is withdrawn and an amended opinion is filed simultaneously with this order.

Chief Judge Schroeder and Judge Rawlinson have voted to deny the petition for rehearing en banc. Judge Farris so recommends. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on it. The petition for rehearing en banc is DENIED. No further petitions for rehearing or for rehearing en banc may be filed.

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