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November 2013
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United States v. Anderson, Jr.

The panel affirmed a conviction for criminal copyright infringement, but vacated the restitution order and remanded.

The panel held that a jury instruction on willfulness was flawed but did not rise to the level of plain error, and that evidence of uncharged acts was properly admitted as intrinsic to the charged conduct.

The panel held that the district court erred in failing to award restitution reflecting the victim’s actual loss, which consisted of the victim’s lost profits on sales of authentic copies that would have taken place if not for the defendant’s conduct. The panel remanded for the district court to reconsider restitution on an open record.

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Bouchat v. Baltimore Ravens Ltd.

This case presents the latest chapter in extensive litigation over the Baltimore Ravens “Flying B” logo. Frederick Bouchat challenges the National Football League’s use of the logo in three videos featured on its television network and various websites, as well as the Baltimore Ravens’ display of images that include the logo as part of exhibits in its stadium “Club Level” seating area. The district court found that the defendants’ use of the Flying B logo in both settings was fair and therefore did not infringe Bouchat’s copyright. We affirm. Any other result would visit adverse consequences not only upon filmmaking but upon visual depictions of all sorts.

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Motorola Mobility, LLC v. Int'l Trade Comm'n

The International Trade Commission determined that Motorola Mobility LLC (Motorola) violated § 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337, by importing and selling mobile devices that infringe Microsoft Corporation’s U.S. Patent No. 6,370,566 (’566 patent). Because substantial evidence supports the Commission’s determinations that Motorola did not show that the asserted claims are invalid, and that Microsoft showed that it satisfied the domestic industry requirement, this court affirms.

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CBT Flint Partners, LLC v. Return Path, Inc.

CBT Flint Partners, LLC, sued Return Path, Inc., and Cisco IronPort Systems, LLC, in the Northern District of Georgia for patent infringement. After deciding the merits of the case against CBT, the district court ruled that CBT should have to pay the defendants their “costs,” which the clerk taxed at $49,824.60 for Return Path and $268,311.12 for Cisco. In the present appeal by CBT, we hold that the district court erred in its interpretation of the statutory provision governing the taxation of costs here, 28 U.S.C. § 1920(4). We reverse in part, vacate in part, and remand.

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Suprema, inc. v. Int'l Trade Comm'n

We address related appeals from rulings of the U.S. International Trade Commission (“the Commission”).

First, we consider the propriety of the Commission’s limited exclusion order barring importation of optical vacate the cease and desist order, vacate the limited exclusion order in part, and remand so that the order can be revised to bar only a subset of the scanners at issue. Resolution of this appeal turns in part on our conclusion that an exclusion order based on a violation of 19 U.S.C. § 1337(a)(1)(B)(i) may not be predicated on a theory of induced infringement under 35 U.S.C. § 271(b) where direct infringement does not occur until after importation of the articles the exclusion order would bar. The Commission’s authority under § 1337(a)(1)(B)(i) reaches “articles that . . . infringe a valid and enforceable United States patent” at the time of importation. Because there can be no induced infringement unless there has been an act of direct infringement, however, there are no “articles . . . that infringe” at the time of importation when direct infringement has yet to occur. The Commission’s exclusion order must be revised, accordingly, to bar only those articles that infringe a claim or claims of an asserted patent at the time of importation.

Next, we consider a Commission order refusing to find a violation of § 337 with respect to some of the same optical scanners. The proceeding giving rise to that appeal was premised on alleged infringement of U.S. Patent No. 7,277,562 (“the ’562 patent”), a different patent than the two patents at issue in the first appeal we address today. The Commission concluded that the scanners at issue did not infringe the asserted claims of the ’562 patent when properly construed. Because we agree with the Commission’s claim construction and noninfringement finding, we affirm the Commission’s ruling in this related appeal.

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Galderma Labs, L.P. v. Tolmar, Inc.

In this patent infringement case, Tolmar, Inc. challenges the district court’s holding that the claims of U.S. Patent Nos. 7,579,377 (’377 patent); 7,737,181 (’181 patent); 7,834,060 (’060 patent); 7,838,558 (’558 patent); and 7,868,044 (’044 patent), which are owned by Galderma Laboratories, L.P., Galderma S.A., and Galderma Research and Development, S.N.C. (collectively, “Galderma”) are not invalid under 35 U.S.C. § 103. We find that the district court erred in finding the claims of the asserted patents not invalid as obvious. Accordingly, we reverse.

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HRE v. Florida Entertainment Mgmt.

Reversing the district court’s grant of a preliminary injunction against defendants’ use of the mark “The Platters” in connection with a vocal group, the panel held that the likelihood of irreparable harm must be established, rather than presumed, by a plaintiff seeking injunctive relief in the trademark context.

The panel affirmed the district court’s holding that earlier New York actions did not have res judicata effect. The panel also held that the plaintiff was not barred by laches from challenging defendants’ use of the mark.

As to the plaintiff’s likelihood of success on the trademark infringement claim, the panel held that the district court did not err in concluding that the defendants failed to meet their burden of strictly proving the affirmative defense of trademark abandonment.

The panel held that in light of eBay v. MarcExchange, LLC, 547 U.S. 388 (2006), and Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008), a plaintiff seeking a preliminary injunction in a trademark infringement case must establish irreparable harm. The panel concluded that even though the district court identified the correct legal principle, the record did not support a determination of the likelihood of irreparable harm.

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Petronas v. GoDaddy.com

Affirming the district court’s grant of summary judgment in an action under the Anticybersquatting Consumer Protection Act, the panel held that the ACPA does not provide a cause of action for contributory cybersquatting.

Petroliam Nasional Berhad, a Malaysian oil and gas company that owned the trademark to the name “PETRONAS,” alleged that Godaddy.com, Inc., a domain name registrar, engaged in contributory cybersquatting when a registrant used GoDaddy’s domain name forwarding service to direct the domain names “petronastower.net” and petronastowers.net” to an adult web site hosted on a web server maintained by a third party.

The panel held that neither the plain text nor the purpose of the ACPA provided support for a cause of action for contributory cybersquatting. It held that the ACPA created a new and distinct cause of action, and Congress did not incorporate the common law of trademark, including contributory infringement, into the ACPA. The panel therefore affirmed the judgment of the district court.

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Louis Vuitton Malletier, S.A. v. Mosseri

In this federal trademark infringement case, appellant Joseph Mosseri appeals the district court’s denial of his motion under Federal Rule of Civil Procedure 60(b)(4) to vacate a default judgment entered against him. Appellant Mosseri does not contest that he was personally served with the lawsuit, that he received the motion for default judgment, and that he did not respond at all. Rather, over six months after service, Mosseri filed a Rule 60(b)(4) motion contending that the judgment is void because the district court in Florida lacked jurisdiction over his person. After careful review, and with the benefit of oral argument, we conclude that the district court did not commit reversible error in denying Mosseri’s motion, and we affirm.

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Futurewei Tech., Inc. v. Acacia Research Corp.

Huawei Device USA Inc. and Futurewei Technologies, Inc. (collectively, “Huawei”) appeal a district court’s dismissal of their complaint. We affirm.

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