Also on the blog this week:
View our webinar on obviousness in US district courts
Guest post: China’s patent revolution - from
imitation to innovation
Redskins make offensive play
The Washington Redskins this week played what the Washington
the "Take Yo Panties Off" defence, in its bid to save its
controversial trade marks.
the opening brief in its appeal filed last week with the US
Court of Appeals for the 4th Circuit, Pro-Football
listed names of porn, clothing and beer companies that have
been granted trade marks by the USPTO.
"The notion that all two million currently-registered marks
are government speech is astounding," said the brief, submitted
by Robert Raskopf of Quinn Emanuel Urquhart & Sullivan and
Lisa Blatt of Arnold & Porter. "It is equally disturbing.
The PTO has registered hundreds if not thousands of marks that
the Team believes are racist, or misogynistic, vulgar, or
otherwise offensive. By way of example only, the following
marks are registered today: TAKE YO PANTIES OFF clothing
… DANGEROUS NEGRO shirts … DUMB BLONDE beer
… These are not isolated instances. The government
routinely registers pornographers’ marks …
None of this is government speech. Nor is the government
subsidizing these marks. Registration of trademarks, like
copyrights and patents, is not akin to a government loan,
grant, or other type of gift." [The passage included other
trade marks that have been omitted by the author).
The brief also featured a footnote with 31 more trade mark
registrations, including PARTY WITH SLUTS, REDNECK ARMY apparel
and BOOTY CALL sex aids.
The Washington Post explained that the Redskins is making a
two-pronged argument: How can the government allow federal
trademark registrations for those inflammatory entities but
strip the Redskins of their protections? And how can the
government reject a registration without infringing on First
Amendment rights, regardless of how offensive it is?
"A ban on registering 'disparaging’ trademarks
unconstitutionally burdens speech based on content and
viewpoint, just as would a ban on registering copyrights for
'disparaging’ books," said the brief.
Polaroid goes for GoPro
The makers of the Polaroid camera has filed a lawsuit
against GoPro claiming infringement of its design patent, reports
C&A Marketing filed a lawsuit in the District of New
Jersey to halt GoPro’s sales of its Hero4 Session
product as well as award damages. It was filed by Morrison
The company claims infringement of a patent for its new
Polaroid Cube camera that it filed for in January 2014, which
is directed to a cube-shaped camera with rounded corners and a
front side camera lens with large buttons on top.
GoPro denied infringement and says that EU and US patents
issued in March show that it "was working on Hero4 Session well
before the competitor filed for its patent, which covers its
own product – not GoPro’s".
Fantasy sports sites brought into the patent litigation
Another interesting patent
infringement dispute arose this past week, when DraftKings,
FanDuel and Fox Sports were sued in the Eastern District of
Texas for patent infringement by Virtual Gaming Technologies,
reports Forbes. It claims that the inventions of William
Junkin, president of FanstasySports.com, have been
"The claims in the patents-in-suit are directed at systems
and methods that enable participants in a fantasy sports
league, sometimes referred to as a 'rotisserie
league,’ to interact with the contest system on a
real-time basis," Virtual Gaming said in a filing.
The lawsuit involves two patents related to real-time
interactive gaming systems, one called "interactive system
allowing real time participation" and the other called
"interactive television system and methodology".
This is not the first IP-related lawsuit FanDuel has faced.
Last month, Washington Redskins wide receiver
filed a right of publicity lawsuit against the company for
using his name, image and likeness without consent.
US litigation to spike in November?
Patent litigation filing will be a popular pastime this
month, according to law firm Dykema. The reason? New pleading
standards are set to come into effect at the start of
When the new rules come in, patent litigations will need to
follow higher pleading standard as set out in the Supreme
Court’s Iqbal and Twombly cases that a complaint
must show that the cause of action is plausible.
"What constitutes a 'plausible’ claim in patent
litigation is very unclear at this point and will likely
require many months of motion practice at the district and
appellate levels before we see a consensus forming," said Aaron
in a post on Dykema’s SerendIPity blog.
Charfoos said most people agree that a significant
percentage of complaints filed today will not satisfy the new
"That’s why we anticipate that many plaintiffs,
particularly non-practicing entities, will not want to deal
with the uncertainty of the new standard and the added cost and
time from defending against a motion to dismiss. They only have
one more month to file before the new rules take effect and may
be working to get their complaints on file before then."
Motions on the pleadings soar in AliceStorm
Robert Sachs has posted the latest stats on the fallout of
the Alice decision
on Fenwick & West’s BilskiBlog.
There have been 34 district court decision in the past two
months, with the percentage of invalidity decision constant at
70.5%. The number of patent claims that have been invalidated
is now more than 11,000.
"There have been no new Federal Circuit Section 101
decisions, but we're going to see a flurry of activity in the
next couple of months, as the court has recently heard oral
argument in a number of patent eligibility cases, and more are
on calendar for November," noted Sachs.
He added that motions on the pleadings have soared, with 23
in the past two months, and the success rate has increased
slightly to 71.4% from 70.1%. "The motions on the pleadings are
the second scariest thing to a patent holder after the spectre
of attorney fees under Octane Fitness," said Sachs.
The post also included interesting statistics on invalidity
rates by district and by judge.
"Monkey see, monkey sue is not good law"
The latest in the seemingly-never ending monkey selfie story
came this week with a filing of a motion to dismiss by
photographer David Slater,
Peta filed the
lawsuit in September against Slater and relates to the
infamous monkey selfie that was taken in Indonesian island
Sulawesi in 2011. In the complaint filed by Irell & Manella
on behalf of "Naruto, a crested Macaque", Peta seeks a court
order allowing Peta to administer proceeds from the photos for
the benefit of the six-year-old monkey. Although Slater
believes he holds copyright to the photos, the US Copyright
Office last year specified that a photo taken by a monkey would
not qualify for copyright.
The motion to dismiss states: "A monkey, an animal-rights
organisation and a primatologist walk into federal court to sue
for infringement of the monkey’s claimed
copyright. What seems like the setup for a punchline is really
happening. It should not be happening. Under Cetacean Community
v Bush 386 F.3d 1169 (9th Circ. 2004), dismissal of
this action is required for lack of standing and failure to
state a claim upon which relief can be grated. Monkey see,
monkey sue is not god law – at least not in the Ninth
Techdirt also delved further into the fuss over a takedown
notice on CafePress related to George Orwell’s
reported on this blog last week.
It seems that the story was not so much one of
Orwell’s estate aggressively targeting internet
radio host Josh Hadley for trying to sell T-shirts bearing the
slogan "1984 is already here" but rather one of CafePress
ordering the takedown after the Orwell estate had objected to
another product that featured a photo of British English
"While many have reported on this story as the Orwell Estate
being Orwellian, the truth here seems more like CafePress being
Kafkaesque," said Techdirt.
In our news and analysis this week:
Latest IP moves – Europe and