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We’ve also posted the following articles in the
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Andrews Kurth adds remaining 55 Kenyon lawyers, and other US
The Mad Men of IP
PTAB 4 Years In: If you let me stay – district court
and ITC trends
PTAB 4 Years In: An inconsistent CBM clampdown
ITC latest: Third 100-day decision issued, Fitbit trade secrets
PTAB chief judge Ruschke hails impact of expert declaration
Battle lines drawn in Blurred Lines appeal
A group of 212 artists has filed an amicus brief in support
of Pharrell Williams and Robin Thicke’s appeal of
last year’s $5.3 million Blurred Lines copyright
according to the Hollywood Reporter.
The artists expressed concern about the danger of to the
music community, in the brief submitted by Ed McPherson,
partner at McPherson Rane.
"The verdict in this case threatens to punish songwriters
for creating new music that is inspired by prior works," it
says. "All music shares inspiration from prior musical works,
especially within a particular musical genre. By eliminating
any meaningful standard for drawing the line between
permissible inspiration and unlawful copying, the judgment is
certain to stifle creativity and impede the creative process.
The law should provide clearer rules so that songwriters can
know when the line is crossed, or at least where the line
The brief came days after Williams and Thicke
filed their opening brief at the Ninth Circuit Court of
Appeals that argued the trial featured a "cascade of legal
errors warranting this Court’s reversal or vacatur
for new trial".
The brief argues that lawyers for
the estate of Marvin Gaye were allowed to have experts testify
about the similarity of the sound recordings of Blurred Lines
and Got to Give It Up, instead of only examining the melody,
lyrics and chords.
"At summary judgment, the district court entertained expert
testimony by musicologists for the Gayes who based their
opinions entirely on the sound recording, not the deposit
copy," says the brief. "The court correctly filtered out
non-deposit-copy and generic musical features from their
testimony, but then erroneously failed to compare what remained
to 'Blurred Lines.' At trial, the district court made things
worse. While correctly excluding the 'Got to Give It Up' sound
recording itself, the court erroneously allowed the
Gayes’ experts to testify about the sound
recording anyway, including by playing their own musical
excerpts based on the sound recording. The court then
instructed the jury that it could consider all this testimony
in its substantial-similarity analysis, failing to instruct
them to consider only the protectable elements of the
copyrighted work and indeed pointing them explicitly to
elements omitted from the deposit copy."
case sets sail again
Another case in the Ninth Circuit is the dispute between
Trader Joe’s and Pirate Joe’s, an
unauthorised store in Vancouver that sells Trader
Joe’s products bought in Washington state and
resold in Canada.
On August 26 the appeals court revived the case
by reversing a ruling that Pirate Joe’s posed too
little threat to justify extraterritorial enforcement,
reports The Wall Street Journal. The appellate panel found
the threshold required to cross the border was met, and
remanded the case to district court for more proceedings.
Judge Morgan Christen wrote: "According to Trader
Joe’s, Hallatt’s poor quality control
practices could impact American commerce if consumers who
purchase Trader Joe’s-brand products that have
been transported to Canada become ill, and news of such illness
travels across the border. Trader Joe’s alleges
this may harm its reputation, reduce the value of its
trademarks, and cause lost sales. Trader Joe’s
argues its risk of harm is particularly high because Pirate
Joe’s displays Trader Joe’s
trademarks, which leads consumers to believe that it is an
authorized Trader Joe’s retailer."
She added: "There is nothing implausible about the concern
that Trader Joe’s will suffer a tarnished
reputation and resultant monetary harm in the United States
from contaminated goods sold in Canada….Trader
Joe’s also alleges that Pirate Joe’s
has inferior customer service, something Trader
Joe’s believes reflects poorly on its brand."
Law professor Rebecca Tushnet
ran a good summary of the decision.
PTAB invalidates two Teva patents
The Patent Trial and Appeal Board has cancelled two Teva
patents covering multiple sclerosis drug Copaxone and is due to
issue a final decision on a third petition by this
reports Bloomberg. The patents were challenged by
company’s stock fell 3% the day of the news.
Copaxone generates 20% of its revenue.
Teva confirmed the PTAB had ruled to invalidate all claims
of the '250 and '413 patents for 40 mg Copaxone, and said it
plans to appeal to the United States Court of Appeals for the
"We remain confident in the strength of our intellectual
property surrounding Copaxone 40mg. We are prepared to defend
the full suite of our intellectual property through the PTAB
and the US courts regardless of the time required," said Erez
Vigodman, president and CEO of Teva.
The PTAB declined a request for a post-grant review on an
additional Copaxone 40mg patent. Teva will defend four patents
('250, '413, '302 and '776), all listed in the Orange Book with
expiry dates into 2030, against a number of ANDA filers in US
District Court for the District of Delaware trial scheduled to
begin in September 2016.
The Eastern District’s 36% win rate
Lawyer and blogger Michael Smith of Siebman Burg Phillips
& Smith has revealed how plaintiffs have been getting on in
the Eastern District of Texas so far this year.
"I get asked a lot what the current statistics are for
patent trials in the district – is this a 2013 where
defendants are winning 2-1 or a 2014 where it's the other way,
or a 2015 where it's even," Smith
said on EDTexweblog.com. "Well, yes, no and yes. So
He revealed 12 patent trials have taken place in the
district so far this year.
"[B]ut I count one (Metaswitch) twice because both sides
were claiming their patents had been infringed, and the
Marshall jury found none were infringed, and, hysterically
(easy for me to say because I wasn't in the case) both sides'
patents were invalid," said Smith. "Of those 12, juries found
for the plaintiff six times and the defendant six times, for a
win rate at trial of 50%."
Post-verdict, one verdict was reversed as a result of a
patent invalidation, one was set aside and new trials ordered,
and one was upheld but with a new trial set on damages. This
makes for four wins for plaintiffs, seven for defendants, and a
new trial coming for one case – giving a win rate of
IV patents invalidated
Also, in the Eastern District of Texas, Judge Gilstrap on
invalidated two Intellectual Ventures patents under Section
101 but let a third survive, in a case in which J Crew Group is
The PatentDocs blog
ran a thorough analysis of the decisions.
The '715 patent is directed to a method for allowing an
internet user to create a web page that may simultaneously
display public and private data as integrated data on one
digital screen or other network device.
The '370 patent discloses a method for using a network for
the recommendation of goods and services based on a potential
customer's selection of goods and services and a database of
previous customer purchase history.
The '324 patent, which was found valid, discloses a method
for storing and retrieving transaction information via a
nonpredictable barcode. Interestingly, the PTAB had noted
earlier this month that this patent was more likely than not
invalid, when it instituted trial on a CBM of it.
- The USPTO
is considering an end to accelerated examination,
as reported by IP Watchdog. Fewer than 200 of these types
of petitions are filed a year.
- Erich Spangenberg has
hit back at the EFF’s call on universities to
unilaterally disarm in patent disputes,
on his Spangenblog. "It all sounds very noble, unless you
have some basic understanding of how the patent system works,"
- Internet provider Cox
is appealing an order to pay BMG Rights Management $25 million
in damages to the US Court of Appeals for the Fourth Circuit,
reports Torrent Freak. It was unsuccessful earlier this
month with a motion for judgment as matter of law in a case in
which it was found guilty of willful contributory copyright