up the wazoo
The Federal Circuit heard
Apple’s effort to get an injunction against sales
of Samsung products it believes infringes its patents on
Reuters’ report of the argument is anything to
go by, the judges gave Apple’s lawyer,
WIlmerhale’s William Lee, a tough time.
Judge Kimberly Moore questioned
whether Apple was being harmed, noting it licenses its
technology to other companies. "You've already licensed these
patents up the wazoo!" she said.
She later added: "You've
licensed them to everyone. So why is it irreparable harm if
Samsung uses the patents?"
Chief Judge Sharon Prost offered
that she "was having a hard time getting past irreparable
Quinn Emanuel’s Kathleen Sullivan, said that the
company had pretty much stopped using the patents so no
injunction was needed. Judge Moore countered: "Why are you
fighting it? Why am I wasting my time?"
Can’t Go For That
Hall & Oates are suing a
Brooklyn granola company, claiming the "Haulin’
Oates" product infringes their trade mark. Darrryl Hall and
John Oates object to the mark "Haulin’ Oats"
saying it is confusingly similar to their "Hall & Oates"
Early Bird Foods sells its
Haulin’ Oats product at prices starting at $27
for a three-pack.
a complaint filed in the Eastern District of New York, Hall
& Oates said: "The name and mark Haulin’ Oats
is an obvious play upon Plaintiff’s well-known
Hall & Oates mark, and was selected by defendant in an
effort to trade off of the fame and notoriety associated with
the artists' and plaintiff’s well-known
The lawsuit noted various third
parties over the years have attempted to take advantage of the
fame associated with Hall & Oates’ marks. It
said the duo themselves first made the same connection when
their first album was called "Whole Oats"
Hall & Oates had six number
ones in the US from the mid-1970s to the mid-1980s –
Rich Girl, Kiss on My List, Private Eyes, I Can’t
Go For That (No Can Do), Maneater and Out of Touch.
Rolling Stone reported that a spokesman for Hall & Oates
said the duo already owned the mark for "Haulin' Oates".
"Hall and Oates' company, Whole Oats Enterprises, owns a
Federal Trademark Registration for the identical mark 'Haulin
Oats' covering breakfast foods that is used in connection with
the sale of 'Haulin Oats' branded oatmeal by Whole Oats
Enterprises’ licensee," the
spokesperson told the music website.
The USPTO’s Silicon
Valley office has cost three times more than its original
estimate, according to
a San Jose Mercury News report.
The construction is set to begin
today at San Jose City Hall. Officials have estimated the total
cost of the project is now $18.2 million. The cost of
relocating some city employees, design challenges, and moving
some city departments pushed the cost up from the initial $6
million, said the Mercury News.
The USPTO was quoted by the
newspaper as saying it "had to keep track of shifting real
estate pricing, and other market realities, which have impacted
the cost and time of setting up our new permanent space".
Athletic apparel maker Under
Armour is suing the Florida-based start-up clothing company Ass
Armor, which was set up in 2013 by snowboarder Casey
Baltimore Sun reports that Ass Armor plans to fight the
lawsuit, which alleges trade mark infringement, unfair
competition and cybersquatting.
The lawsuit says Ass Armor uses
similar lettering and puts it name along its
short’s waistband like Under Armour does. "Making
matters worse, similar to Under Armour's well-known and widely
promoted Protect This House tagline mark, defendants use,
advertise and promote their Ass Armor mark, name and
products… in connection with the Protect Your Assets
tagline," says Under Armour’s filing in the US
District Court in Maryland.
The Baltimore Sun quoted an
email from Scherr saying: "We strongly believe the lawsuit
filed by Under Armour has no merit. Ass Armor has spent months
fighting with Under Armour in front of the Trademark Trial and
Appeal Board and then, without notice, Under Armour filed this
matter in federal court. We believe this is a classic David and
Goliath battle. As David, we intend to fight."
Debating fee shifting
This week, Senator Chris Coons
introduced his STRONG Patents Act, which has
sparked strong reactions both in favour and against its
pro-patent provisions. The bill is in contrast to the
Representative Bob Goodlatte’s Innovation Act
introduced in the House, which is more tailored towards those
advocating for broad patent reform aimed at patent trolls.
Two posts on IP blogs this week
questioned the effect that the fee shifting provisions in the
Innovation Act would have if enacted.
guest post on the Patently-O blog by Ted Sichelman,
professor of law at the University of San Diego School of Law,
argued that the Innovation Act’s fee shifting is
biased against patent holders and will actually likely increase
patent assertion entity activity.
He said the Innovation Act
includes what seems to be a neutral fee-shifting provision. It
would require a court to "award, to a prevailing party,
reasonable fees and other expenses … unless the court
finds that the position and conduct of the non-prevailing party
or parties were reasonably justified in law and fact or that
special circumstances (such as severe economic hardship to a
named inventor) make an award unjust."
But Sicheman said:
"Unfortunately, many commentators have focused the issue of
whether this provision creates a presumption in favor of
fee-shifting without carefully considering the many affiliated
provisions in the bill. These additional provisions are
particularly important because – contrary to the
language quoted above – they significantly skew the
effects of fee-shifting against patent holders. Given
this lopsided effect, the fee-shifting provisions would
probably increase patent assertion entity (PAE)
activity... this is because the provisions would most likely
substantially reduce PAEs’ costs of acquiring
Sichelman argued that a close
reading of these additional fee-shifting provisions makes their
skewed nature apparent.
"Take, for instance, the
provision for 'interested’ third-party liability,"
he said. "It essentially makes those with a 'direct financial
interest in the patent … damages [award] or ...
licensing revenue’ liable in the event a losing
patent holder cannot pay a fee award (subject to certain
exclusions). By its terms, the third-party liability provision
only benefits 'a prevailing party defending against an
allegation of infringement of a patent claim’
(emphasis added). So while third-party liability is quite
expansive for those affiliated with losing patent
holders, it is nonexistent for those affiliated
with losing accused infringers."
He also questioned the effect of
the provision that settlement counts as a win for the accused
infringer when the patentee "unilaterally extends to [the
accused infringer] a covenant not to sue for infringement",
unless the patentee could have voluntarily dismissed the action
without a court order.
Gene Quinn on the IP Watchdog blog also wrote a post his week
arguing that fee shifting would not do anything to stop patent
won’t matter to patent trolls,"
wrote Quinn. "Ironically, fee-shifting will matter only to
those who are pushing for it, and also for small entities. The
tech giants who get sued for patent infringement by true
innovators with strong patents lose with great frequency. After
fighting a war of attrition as they like to do the attorneys
fees they pay will be substantial."
Also on the blog this week:
throws "legislative grenade" at PTAB
How China is
In our news and analysis this week:
Spangenberg double down on IPR strategy
introduced in US Senate
INTA hires former
USPTO trade mark commissioner Cohn
opens Dallas office with hires from
Jeffrey Lewis joins
Top firms for trade
mark work 2015
K&L Gates adds
IP partner to London office
USPTO retires SAWS
PTAB issues first
written decisions on biopharmaceutical
Hogan Lovells adds
three in Greater China