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FLO HEALTHCARE SOLUTIONS, LLC. V. PATENT AND TRADEMARK OFFICE

Flo Healthcare Solutions, LLC (“Flo”) appeals from a decision of the Board of Patent Appeals and Interferences (“Board”) of the United States Patent and Trademark Office (“PTO”) in inter partes Reexamination Control No. 95/000,251.2 The Board upheld the examiner’s rejections of claims 8-17, 23, 24, 35, 40-42, 73, 76-79, 87, and 88. After full review of the parties’ arguments we arrive at the same conclusion, but get there, as we shall explain, by a different route. Accordingly, we correct the Board’s analysis, but affirm the Board’s conclusion.

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Oriental Fin. Group, Inc. v. Cooperativa De Ahorro Y Credito Oriental

The parties in this case are competing financial institutions operating in Puerto Rico. Plaintiffs-Appellants/Cross-Appellants, Oriental Financial Group, Inc., Oriental Financial Services Corp., and Oriental Bank and Trust (collectively, “Oriental”), have for many years used the ORIENTAL mark in connection with the advertising, promotion, and offering of financial services in Puerto Rico. Oriental contends that beginning in or around 2009, Defendant-Appellee/Cross-Appellant, Cooperativa De Ahorro y Crédito Oriental (“Cooperativa”), used a confusingly similar mark, COOP ORIENTAL, and a confusingly similar logo containing that mark in connection with its financial business and services, in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and Puerto Rico trademark law.

Finding a likelihood of confusion, the district court ordered Cooperativa to cease all use of its new 2009 logo (which used the COOP ORIENTAL mark with an orange trade dress), but allowed Cooperativa to revert back to using its pre-2009 logo (also containing the COOP ORIENTAL mark, but with a different trade dress). On appeal, Oriental contends that the district court’s injunction should have been broader to include any use of the COOP ORIENTAL mark and similar marks (even when divorced from the trade dress in the 2009 logo). Cooperativa counters that Oriental’s claim for injunctive relief against the COOP ORIENTAL mark and similar marks fails on the merits because there is no likelihood of confusion and the claim is barred by laches.

We hold that Oriental’s claims are not barred by laches because of the doctrine of progressive encroachment, and remand to the district court to determine whether there is a likelihood of confusion as to the COOP ORIENTAL mark and other marks and whether the injunction should be broader, as Oriental contends.

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Evergreen Safety Council v. RSA Network Inc.

RSA Networks (RSA) appeals the district court’s grant of summary judgment dismissal of RSA’s claim for copyright infringement against Evergreen Safety Council (Evergreen) on the ground of laches. RSA contends that the district court erred in applying laches because Evergreen willfully infringed upon its copyright. We reject this argument because Evergreen acted under color of title and in good faith, and therefore did not willfully infringe upon RSA’s copyright. Danjaq LLC v. Sony Corp., 263 F.3d 942, 959 (9th Cir. 2001). RSA also contends the district court erred in dismissing the case because RSA still retained claims for injunctive relief. We likewise reject that argument because the alleged future infringements named as the basis for the injunctive relief are identical to the original infringements, and thus are barred by laches as well. Danjaq, 263 F.3d at 960. Accordingly, we affirm the district court’s summary judgment dismissal.

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TECHNOLOGY PATENTS LLC. V. T-MOBILE (UK) LTD.

On November 8, 2007, Technology Patents LLC (“TPL”) sued more than 100 domestic and foreign defendants for infringement of U.S. Patents No. 6,646,542 (“the ’542 patent”) and No. RE39,870 (“the ’870 patent”). The allegations concerning the ’542 patent were subsequently withdrawn, so only the ’870 patent is at issue in this appeal. The defendants can be classified into three groups: (1) the domestic carriers and handset companies, including AT&T, T-Mobile, Sprint, Motorola, and others (collectively, “the domestic carriers”); (2) the software providers, including Microsoft, Yahoo, and Clickatell (collectively, “the software providers”); and (3) the foreign carriers, including T-Mobile operating in various countries, Vodaphone operating in various countries, and many others (collectively, “the foreign carriers”).

The district court dismissed the case against the for-eign carriers for lack of personal jurisdiction, and it granted summary judgment of noninfringement in favor of the domestic carriers and the software providers, but on separate grounds. TPL appeals from all three orders. We reject TPL’s request that we reinstate the claims against the domestic carriers and the foreign carriers; as to the claims against the software providers, we affirm the district court’s order in part and vacate that order in part, and we remand to the district court for further proceedings on that aspect of the case.

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ENERGY TRANSPORTATION GROUP, INC. V. WILLIAM DEMENT HOLDING A/S

The United States District Court for the District of Delaware declined to order a new trial or relief from judgment after a jury found that Defendants-Appellants William Demant Holding A/S, WDH Inc., Oticon Inc., Oticon A/S, Bernafon AG, and Bernafon LLC (collectively “Demant”) and Widex A/S and Widex USA, Inc. (collectively “Widex”) infringed U.S. Patent No. 4,731,850 (“’850 Patent”). Energy Transportation Group, Inc. v. Sonic Innovations, Inc., No. 05-422, 2011 U.S. Dist. LEXIS 60716 (D. Del. June 7, 2011). Demant and Widex (collectively “Defendants”) appeal. Widex also appeals the district court’s denial of its motion for JMOL of no willful infringement. Plaintiff-Cross Appellant Energy Transportation Group, Inc. (“ETG”) cross-appeals the district court’s grant of JMOL of noninfringement of U.S. Patent No. 4,879,749 (“’749 Patent”) on the basis that prosecution history estoppel barred the jury’s finding of infringement under the doctrine of equivalents. After a review of the record, this court affirms.

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APPLE INC. V. SAMSUNG ELECTRONICS CO., LTD.

Samsung Electronics Company, Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC (collectively, “Samsung”) appeal from the district court’s order granting Apple, Inc., a preliminary injunction and enjoining Samsung from selling its Galaxy Nexus smartphone. Because the district court abused its discretion in entering an injunction, we reverse and remand.

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SANDISK CORP. V. KINGSTON TECHNOLOGY CO., INC.

SanDisk Corporation (“Sandisk”) sued Kingston Technology Co., Inc. and Kingston Technology Corp. (collectively “Kingston”) for infringement of U.S. Patent Nos. 5,719,808 (“’808 patent”), 6,149,316 (“’316 Patent”), 6,426,893 (“’893 patent”), 6,757,842 (“’842 patent”), and 6,763,424 (“’424 patent”). After the district court issued its claim construction opinion, SanDisk withdrew its infringement claims with respect to the ’808 and ’893 patents and claims 1, 6, 7, 10, 12, 15, 18, and 20 of the ’842 patent. The district court granted Kingston’s motion for summary judgment of non-infringement with respect to certain asserted claims of the ’842, ’316, and ’424 patents. SanDisk dismissed its remaining infringement claims and has appealed the district court’s judgment. For the reasons set forth below, we affirm in part, vacate in part, and remand for further proceedings.

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IN RE MIRACLE TUESDAY, LLC.

Miracle Tuesday LLC (“Miracle Tuesday”) appeals from a decision of the Trademark Trial and Appeal Board (“the Board”) which affirmed the trademark examining attorney’s refusal to register the mark JPK PARIS 75 and design on grounds that it is primarily geographically deceptively misdescriptive under Section 2(e)(3) of the Lanham Act, 15 U.S.C. § 1052(e)(3). In re Miracle Tues-day, LLC, No. 77649391, 2011 TTAB LEXIS 32 (TTAB Feb. 3, 2011) (“Board Decision”). Because we find that the Board’s refusal to register the mark was based on substantial evidence, we affirm.

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BELKIN INTERNATIONAL, INC. V. KAPPOS

Belkin International, Inc. (“Belkin”) appeals from the decision of the Board of Patent Appeals and Interferences of the United States Patent and Trademark Office (“PTO”) on inter partes reexamination that it lacked jurisdiction to consider arguments based on three references that the Director had previously determined did not raise a substantial new question of patentability.1 Because the Board did not err in refusing to consider the issues that the Director found not to raise a substantial new question of patentability, we affirm.

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POZEN INC. V. PAR PHARMACEUTICAL, INC.

Par Pharmaceutical, Inc. (“Par”), Alphapharm Pty Ltd. (“Alphapharm”), and Dr. Reddy’s Laboratories, Inc. (“DRL”) (collectively “Appellants”) appeal from the final judgment of the United States District Court for the Eastern District of Texas. Following a bench trial, the district court determined that the asserted claims of U.S. Patent No. 6,060,499 (filed Sept. 11, 1998) (the “’499 patent”), U.S. Patent No. 6,586,458 (filed Apr. 27, 2000) (the “’458 patent”), and U.S. Patent No. 7,332,183 (filed Dec. 22, 2003) (the “’183 patent”) (collectively “patents-in-suit”) are not invalid as obvious under 35 U.S.C. § 103. The district court also found that the patents-in-suit were infringed by Par and DRL’s Abbreviated New Drug Application (“ANDA”) filings. As a result, Par and DRL were enjoined from making, using, importing, selling or offering to sell their generic products in the United States. We affirm the district court’s decision because it did not err in finding the patents-in-suit not invalid and infringed.

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