Stacy Stitham

  • Understanding the Exceptional Trademark Case

    The buzz in the (IP) blogosphere this week relates to Romag Fasteners v. Fossil, Inc., in which the Federal Circuit joined the Third, Fourth, Fifth, Sixth, and Ninth Circuits in concluding that fee recovery under the Lanham Act follows the standards of the Supreme Court’s decision in Octane Fitness.

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  • Skepticism from the Heartland

    Last week we reported on the initial efforts to apply the Supreme Court’s opinion in TC Heartland, with particular interest in what impact that case may end up having on the business of patent litigation in the Eastern District of Texas. As we noted, on first read, TC Heartland seemed to herald the end of the kind of forum–shopping that enabled the Eastern District of Texas to ...

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  • A Case of First Impression

    It will hardly come as a surprise to frequent readers of this blog that the U.S. Supreme Court has (once more) jettisoned a legal principle fashioned by the Federal Circuit, nor that the opinion was largely without dissent (Justice Ginsburg did dissent in part). The case, Impression Products v. Lexmark International, concluded that a patentee’s decision to sell a product exha ...

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  • The Genericide of Google?

    If you’ve ever referred to any pain relieving drug as an “aspirin,” asked for a Kleenex when seeking any form of handheld tissue, or interchanged the terms “photocopy” with “Xerox,” you have an inkling of the dangers that may result when a product or service becomes so successful that it jeopardizes its own trademark protection.

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  • Patent Points to Ponder

    The Supreme Court recently decided the Federal Circuit was incorrect in concluding that the supply of a single component of a multicomponent invention for manufacture abroad gives rise to liability under Section 271(f)(1) of the Patent Act, which prohibits the supply from the United States of “all or a substantial portion of the components of a patented invention” for combination abroad.

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  • Changing of the Guard

    Law360 and Crain’s Chicago Business are reporting that the infamous Niro Law Firm is dissolving, following the recent death of its founder, Ray Niro. For a time, the Niro name caused consternation to retailers receiving cease & desist letters on patent claims, as the f ...

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  • The Platform of Patent Infringement?

    A little over a year ago, Judge Martinez of the Western District of Washington adopted an advisory jury verdict finding that Inc. did not “offer to sell” several third party pillowcases available for purchase through which allegedly infringed certain design patents. As is often the case with legal questions, the issue was just re-argued on appeal before ...

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  • Give Me A C….

    The Supreme Court recently heard arguments in the case of Star Athletica v. Varsity Brands, a copyright case seeking resolution of the appropriate test to determine when a feature of a “useful article” is protectable under section 101 of the Copyright Act. Section 101 provides that “the design of a useful article” will be considered a pictorial, graphic, or sculptural work “on ...

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  • Pleadings 2.0

    Rule 8 of the Federal Rules of Civil Procedure requires a “a short and plain statement of the claim showing that the pleader is entitled to relief.” A decade ago, pleading a patent case was approximately as easy as: “You have a product/website/method/service and I have a patent. You owe me money.” With the Supreme Court’s related opinions in Twombly and Iqbal (commonly known ...

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  • Freedom of Software Speech

    Intellectual Ventures is no stranger to filing appeals with the Federal Circuit when confronted with an unfavorable ruling at the district court level, though it may be kicking itself for having done so in its case against Symantec, where the Federal Circuit not only affirmed the district court’s decisions of ineligibility regarding two of the asserted patents – but also found that the remainin.

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  • Happy Birthday, Patent Reform

    Today marks the fifth anniversary of the Leahy-Smith America Invents Act, a comprehensive patent reform package that, depending on your vantage point, either went too far or not far enough. From a removal of half a decade, it appears that some of the AIA’s requirements have had little practical effect – for example, the fact that patent plaintiffs must file separate suits agai ...

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  • Permission Granted

    With a hat tip towards Law360 for noting that Judge Gilstrap may have quietly done away with his notorious “permission slip” requirement for filing a summary judgment motion. While previous docket control order templates required a party to submit a five-page letter brief seeking permission to file a ...

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  • Goodbye, Ruby Sands….

    In a short but scathing order, Judge Gilstrap sent frequent patent lawsuit flier Ruby Sands, LLC packing, in granting a motion to dismiss Ruby’s amended complaint on grounds that it “plainly fails to state a claim for relief that is plausible on its face.” The Court found that Ruby’s direct infringement pleadings “are constructed upon a fatally flawed foundations,” given the a ...

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  • The Results Are In: Patent Quality Can Improve

    The Government Accountability Office (GAO) released two reports on the Patent & Trademark Office (PTO) recently, including one on patent quality and clarity. As to such report, the GAO recommends that the PTO: Develop a consistent definition of patent quality, and clearly articulate this definition in agency documents and other guidance.

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  • Too Little, Too Late?

    On June 23, 2016, the U.S. International Trade Commission (“ITC”) issued a decision invalidating one of Converse’s trademarks for its iconic Chuck Taylor shoes (and issuing an exclusion order prohibiting the import of any shoes that infringe certain of Converse’s other trademarks). It is the former that is of particular interest here.

    Stacy Stitham/ Brann & Isaacson- 7 readers -
  • The Default Damages Regime

    Back in 2010, there was a boom in so-called “false marking” cases. The false marking statute, 35 U.S.C. § 292, had passed a relatively quiet existence since 1952, imposing a fine of $500 per offense for falsely marking a product as “patented,” “patent applied for” or “patent pending.” In 2009, the Federal Circuit concluded that a statutory “offense” was the sale of each indiv ...

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  • Ship Out

    ArrivalStar, now reborn as “Shipping and Transit LLC,” presumably to appear as though they had invented the concept of tracking moving objects, is one of the most prolific patent trolls around (and has been for years). Having run out of traditional targets, they’ve been willing to go after nontraditional entities such as municipalities and small retailers, typically settling e ...

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  • A Newly-Minted Cause of Action

    On its way to President Obama for signature is the Defend Trade Secrets Act (DTSA), passed yesterday by the House (and previously passed by the Senate), which amends the Economic Espionage Act to create a private civil cause of action for trade secret misappropriation. In effect, the DTSA cre ...

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  • Down, Way Down in Texas

    Both Law360 and EDTexweblog are reporting a substantial drop in ED Texas patent filings for the first quarter of 2016, hovering around the 50% mark when compared to last year at the same time. Among other possibilities, speculation suggests that the eDekk ...

    Stacy Stitham/ Brann & Isaacson- 15 readers -
  • MPHJ: Just a Flesh Wound

    We’ve spoken before about MPHJ, the posterchild for patent abuse, which sent letters to tens of thousands of ordinary businesses using scanner-printers, seeking royalty payments. States from Vermont to Nebraska were sufficiently incensed to take direct action, kicking off a trend of interest in these types of cases among state attorneys general.

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