Federal Circuit Reverses PTAB on Printed Publication Status of Operating Manuals
AI and Patent Attorney Misconduct
Judicial Misconduct Sanction Against Judge Newman Affirmed
Livestream of LKQ v. GM
The US Constitution as an Interpretive Tool for Obviousness Law
LKQ Corporation v. GM Global Tech: Design Patent En Banc
Two Mandamus Petitions: Transfer Granted, Improper Service Denied
Gogo Continues In-Flight Services as Federal Circuit Rejects SmartSky’s Preliminary Injunction Appeal
by Dennis Crouch
In SmartSky Networks, LLC v. Gogo Business Aviation, LLC, No. 2023-1058 (Fed. Cir. Jan. 31, 2024), the Federal Circuit has affirmed a lower court denial of a preliminary injunction sought by the patentee SmartSky against Gogo. SmartSky sued Gogo in 2022 for patent infringement, alleging that Gogo’s 5G wireless network infringed several of SmartSky’s patents related to in-flight internet wireless connectivity. See U.S. Patent Nos. 9,312,947, 11,223,417, 10,257,717, and 9,730,077. Along with its complaint, SmartSky moved to preliminarily enjoin Gogo from providing its in-flight network. SmartSky argued it had shown a likelihood of success on the merits and that it would suffer irreparable harm without an injunction, but the D.Del. district court Judge Gregory Williams disagreed. A grant or denial of preliminary injunctive relief can be immediately appealed, but the patentee's appeal has also failed.
The preliminary injunction motion was associated with a new 5G network that Gogo had announced in 2019. That network is, according to Gogo, "still in a pre-launch phase." Although customers are not yet actively using the service, the network itself is actually complete and the final step is including the chipsets within the planes. This aspect of the case was the most critical for the Federal Circuit who concluded that the current status of Gogo's operation was not definite enough to create irreparable harm.
Race to the Finish: Timing Battles in Parallel IPR and District Court Litigation
Has Diehr been Overruled?; and How do you Prove Technological Advance
Federal Circuit on TM Law’s Information Matter Doctrine
by Dennis Crouch
The Federal Circuit has just reissued this important trademark decision as precedential. In re GO & Associates, 22-1961 (Fed. Cir. 2023/2024)
In a non-precedential 2023 decision, the Federal Circuit affirmed a decision by the Trademark Trial and Appeal Board (TTAB) refusing to register “Everybody vs Racism” as a trademark for apparel, tote bags, and services promoting racial justice advocacy. The court found substantial evidence supported the TTAB's conclusion that the slogan fails to function as a source identifier for the applicant GO & Associates’ goods and services. Although the outcome here supports the informational matter doctrine barring registration, the court is clear that political slogans and other informational matter can be protected as trademarks so long as the applicant shows that they actually function as a trademark.
Guest Post by Prof Burstein: Sanctions & Schedule A
Judge Pauline Newman: Evaluate For Yourself
USPTO Granted Remand in Important Antibody Written Description Case
by Dennis Crouch
The Federal Circuit has remanded the Xencor appeal -- allowing USPTO leadership an opportunity to re-focus on the written description requirement for both Jepson claims and means-plus-function claims in the antibody art. I have several prior posts about the case:
- Crouch, USPTO again Asks for Remand in Xencor to reconsider its Decisions (December 7, 2023)
- Crouch, Motion for remand in Xencor (December 4, 2023)
- Crouch, Jepson Formats and Means Limitations Under More Fire (November 29, 2023)
Vanda Seeks Supreme Court Review on Lower Standard for Obviousness
Vanda Pharmaceuticals recently filed a petition for writ of certiorari, asking the Supreme Court to review a May 2023 decision by the Federal Circuit that invalidated claims from four Vanda patents covering methods of treating Non-24-Hour Sleep-Wake Disorder ("Non-24") using the drug tasimelteon (Hetlioz). Vanda Pharmaceuticals Inc., v. Teva Pharmaceuticals USA, Inc., 23-768 (Supreme Court). The district court held that all the asserted claims were invalid as obvious, and the Court of Appeals for the Federal Circuit affirmed this decision. Vanda.cert.petition
En Banc Denied in In re Cellect: Double Patenting and Patent Term Adjustment
See you Soon: Three Upcoming Events
A present assignment of future continuation applications
by Dennis Crouch
In Roku, Inc. v. ITC, the Federal Circuit has affirmed determinations by the International Trade Commission (“ITC”) favoring the patent holder Universal Electronics, Inc. (“Universal”). The most interesting part of the case for me is the assignment issue - whether the patents had been properly assigned at the appropriate time. This can become in cases like this because Universal has created a large patent portfolio that all claim back to original priority documents from more than a decade ago. While most of patents are attributable to both joint-inventors, some are only attributable to one or the other. Here, though the Federal Circuit supported the simple approach of a "hereby assigns" transfer of rights that includes future continuations. The decision is lacking though because the court does not ground its decision in any particular contract or property tradition.
