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Apple 'pinch-to-zoom' patent on shaky ground, report says

by Don Reisinger

Apple's embattled "pinch-to-zoom" patent has apparently been tossed out by federal patent authorities, if a new report is correct.

Samsung Electronics on Sunday filed a petition in the U.S. District Court for the Northern District of California, San Jose Division, requesting that all alleged infringement against Apple's pinch-to-zoom patent -- Patent No. 7,844,915 -- be tossed out, according to Macworld, which obtained a copy of the documents. Samsung cited a recent decision on the part of the U.S. Patent and Trademark Office (USPTO) to reject all 21 claims in the patent through a "final office action," according to Macworld.

Full story.

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Charles Mach. Works, Inc. v. Vermeer Mfg. Co.

The Charles Machine Works, Inc. (CMW) appeals from the district court’s grant of summary judgment that Vermeer Manufacturing Company’s (Vermeer) accused commercial products and non-commercial prototypes do not infringe, literally or under the doctrine of equivalents. CMW also challenges whether the prototypes were properly within the scope of summary judgment. We hold that CMW did not have sufficient notice that the prototypes were within the scope of the summary judgment decision, and thus vacate-in-part and remand. Regarding the accused commercial products, we affirm that there is no literal infringement, and reverse that there is no infringement under the doctrine of equivalents and remand.

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In re: Bimeda Research & Dev. Ltd.

Bimeda Research & Development Limited (“Bimeda”) appeals a decision by the United States Patent and Trademark Office (“PTO”) Board of Patent Appeals and Interferences, now known as the Patent Trial and Appeal Board (“Board”), in Ex Parte Bimeda Research & Development Limited, No. 2011-010507, 2011 WL 3754635 (B.P.A.I. Aug. 19, 2011) (“Board Opin.”), which affirmed an examiner’s rejection of certain claims introduced in the context of ex parte reexamination of Bimeda’s U.S. Patent No. 6,506,400 (issued Jan. 14, 2003) (“the ’400 patent”). For the reasons set forth below, we affirm.

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Novozymes A/S v. DuPont Nutrition Biosciences, APS

Plaintiffs-Appellants Novozymes A/S and Novozymes North America, Inc. (collectively, “Novozymes”) and Defendants-Appellees DuPont Nutrition Biosciences APS, Genencor International Wisconsin, Inc., Danisco US Inc., and Danisco USA Inc. (collectively, “DuPont”) are competitors in the market for enzyme preparations used in a variety of commercial applications, including ethanol production. On May 11, 2010, Novozymes brought suit against DuPont in the Western District of Wisconsin, alleging infringement of its U.S. Patent No. 7,713,723 (the “’723 patent”). The ’723 patent claims particular modified enzymes that exhibit improved function and stability under certain conditions. DuPont defended on grounds of noninfringement and invalidity and filed counterclaims seeking a declaratory judgment that the claims of the ’723 patent are invalid for failing to satisfy the enablement and written description requirements of 35 U.S.C. § 112. As litigation progressed, the parties filed several motions for summary judgment. In pertinent part, the district court granted summary judgment in favor of Novozymes on the issue of infringement and denied DuPont’s motion for summary judgment of invalidity under the written description and enablement requirements. The case then went to trial before a jury, which concluded that the ’723 patent’s claims are not invalid on enablement or written description grounds and which awarded infringement damages to Novozymes exceeding $18 million. The district court, however, granted DuPont’s post-trial motion for judgment as a matter of law that the claims of the ’723 patent are invalid under § 112 for failure to satisfy the written description requirement. Novozymes now appeals from the district court’s final judgment of invalidity. For the reasons set forth below, we affirm.

 

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Fox Broadcasting Co. v. Dish Network

Dish Network offers two marsupial-inspired products: the “Hopper,” which “hops” over commercials, and a companion box known as a “Joey.” Fox Broadcasting Company claims these products are contractually out of bounds and constitute copyright infringement. The district court denied the broadcaster’s request for a preliminary injunction. We have jurisdiction under 28 U.S.C. § 1292, and we affirm.

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Hobbs v. John

While working on a Russian cruise ship, Guy Hobbs composed a song entitled “Natasha” that was inspired by a brief love affair he had with a Russian waitress. Hobbs tried to publish his song, but was unsuccessful. A few years later, Elton John and Bernie Taupin released a song entitled “Nikita” through a publishing company to which Hobbs had sent a copy of “Natasha.” Believing that “Nikita” was based upon “Natasha,” Hobbs eventually demanded compensation from John and Taupin, and ultimately filed suit asserting a copyright infringement claim and two related state law claims. The defendants moved to dismiss Hobbs’s complaint for failure to state a claim, and the district court granted the defendants’ motion. Hobbs appeals. We affirm.

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Metropolitan Regional Info. Sys. v. American Home Realty Network

Appellant American Home Realty Network, Inc. (“AHRN”) and Appellee Metropolitan Regional Information Systems, Inc. (“MRIS”) are competitors in the real estate listing business. MRIS offers an online fee-based “multiple listing service” to real estate brokers and agents, while AHRN circumvents those brokers and agents by taking listing data from online database compilers like MRIS and making it directly available to consumers on its “real estate referral” website. In this action, MRIS contends that AHRN’s unauthorized use of its copyrighted material constitutes infringement under the Copyright Act. The district court entered a preliminary injunction order prohibiting AHRN’s display of MRIS’s photographs on AHRN’s referral website, and AHRN appealed. For the reasons that follow, we affirm.

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1-800 Contacts v. Lens.com, et al

The Lanham Act, 15 U.S.C. §§ 1051–1127, prohibits the infringement of trademarks (used to identify products) and service marks (used to identify services). It was enacted in 1946, but because it speaks in general terms it can be applied to technologies unimagined at the time of enactment. One such technology, the Internet, has created a number of challenging issues. The case before us concerns Internet search engines, which present advertisers with new means of targeting prospective customers and therefore new possibilities for claims under the Lanham Act. The dispute arises out of advertising through AdWords, a program offered by the Internet search engine Google. An advertiser using AdWords pays Google to feature one of its ads onscreen whenever a designated term, known as a keyword, is used in a Google search. We must resolve whether the Lanham Act was violated by an advertiser’s use of keywords that resembled a competitor’s service mark. For the most part, we hold that there was no violation. Plaintiff 1-800 Contacts, Inc. (1-800) dominates the retail market for replacement contact lenses. It owns the federally registered service mark 1800CONTACTS. Defendant Lens.com, Inc. is one of 1-800’s competitors. To police the use of its mark, 1-800 enters different variations of the mark into Google searches and monitors what search results are displayed. When 1-800 found that several searches generated paid ads for Lens.com’s websites, it concluded that Lens.com had reserved the mark as a keyword. After attempting to resolve the situation informally, 1-800 sued Lens.com for service-mark infringement. Its primary claim was that Lens.com itself had infringed the 1800CONTACTS mark by purchasing keywords resembling the mark. According to 1-800, this conduct had directed potential customers for 1-800 to Lens.com by creating what is known as “initial-interest confusion,” which can be actionable under the Lanham Act. As the case progressed, 1-800 supplemented its claim of direct infringement by alleging that certain third-party marketers hired by Lens.com, known as affiliates, had also purchased keywords resembling the mark and that at least one affiliate was using the mark in the text of its online ads. 1- 800 sought to hold Lens.com secondarily liable for its affiliates’ conduct. The theories of secondary liability, which will be discussed more fully below, were common-law agency and contributory infringement. The district court awarded summary judgment to Lens.com on all claims. On the direct-liability claim and most of the secondary-liability claims, the court ruled that 1-800 had raised no genuine issue of fact regarding the likelihood of initial-interest confusion. On the remaining secondary-liability claims—which concerned the use of 1-800’s mark in the content of ads displayed on Google’ssite—the court ruled that 1-800’s evidence was insufficient to hold Lens.com liable for any misconduct of its affiliates. 1-800 appeals the summary judgment. To the extent that the court based summary judgment on the ground that no likelihood of confusion existed, we affirm. Traditional analysis and actual marketplace data reveal that the keyword use by Lens.com and its affiliates was highly unlikely to divert consumers. As for the remaining secondary-liability claims, we affirm the denial of liability under agency law because the affiliates, even if agents (or more precisely, subagents) of Lens.com, lacked authority to include 1-800’s mark in ads for Lens.com. But we reverse the denial of liability for contributory infringement because the evidence could support a reasonable finding that Lens.com did not take reasonable steps to halt the display of 1-800’s marks in affiliate ads once it learned of such display. Also, we affirm the discovery sanction challenged by Lens.com on crossappeal (but decline to award 1-800 its attorney fees for defending the sanction in this court), and we affirm the denial of Lens.com’s district-court motion for attorney fees.

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Guggenheim Capital, LLC v. Birnbaum

Appeal from a default judgment entered by the United States District Court for the Southern District of New York (Gardephe, J.) against defendant-appellant for his failure to comply with court orders. We conclude that the district court did not abuse its discretion in entering the default judgment. AFFIRMED. Download Guggenheim Capital, LLC v. Birnbaum
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Unique Sports Products, Inc. v. Ferrari Importing Co.

This appeal requires us to consider whether a party may appeal on the merits from a decision in itsfavor, where a district court found against him as to one issue, nondispositive of the case. We find that, though he may not challenge the District Court’s finding on the merits, he is entitled to vacatur of the portion of the District’s Court’s order adverse to him.

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