All posts by WyattLLP

Recent Case Highlights the High Price of Trade Secret Misappropriation

By Julie A. Laemmle

In 2015, BladeRoom Group, Ltd. (“BRG”) and Bripco (UK) Limited (“Bripco”) filed suit in the United States District Court, Northern District of California, alleging that Facebook as well as Emerson Electric Co., Emerson Network Power Solutions, and Liebert (collectively “Emerson”), stole its designs for pre-fabricated modular facilities to build the Facebook data center in Lulea, Sweden. The lawsuit also contended that Facebook published the data center ideas on an Open Compute Project blog in violation of the Open Compute rules, which stipulate that members can only share intellectual property with the owner’s consent. BRG ultimately sought $365 million in damages from its claims for trade secret misappropriation, breach of contract and violation of California’s Unfair Competition Law.

BRG claims it met with the Facebook and Emerson executives in the summer of 2011 and discussed BRG’s technology shortly thereafter. Subsequent to this meeting, Facebook asked BRG for Continue reading Recent Case Highlights the High Price of Trade Secret Misappropriation

Blocked: Knight Institute Fractures Trump’s Twitter Shield

By Meghan Cox; Jake Smith, Wyatt Summer Associate 2018

 Knight First Amendment Institute at Columbia University v. Trump

Most Americans would agree that Donald Trump has no greater platform than Twitter. The self-proclaimed “Ernest Hemingway of 140 characters” understands that he can maximize his influence through the @realDonaldTrump account because tweeting provides the most direct interaction with constituents.  But unlike Hemingway, who is renowned for his “iceberg theory” of writing—in which a story’s deeper meaning is veiled under simple innuendos and symbolism—President Trump leaves little to a reader’s imagination.  His direct, and often abrasive, rhetoric has led many readers to reply in disagreement, and, in turn, Trump has developed a propensity for blocking these readers on Twitter.  Now that Trump is blocking people in his capacity as President, his so-called “haters and losers” may have recourse under the Constitution. Continue reading Blocked: Knight Institute Fractures Trump’s Twitter Shield

PYRAT rum and PIRATE PISS beer not confusable, according to TTAB

By Julie Laemmle; Alicia Humphrey, Wyatt Summer Associate 2018alcohol-bar-black-background-602750

In a recently released ruling, the Trademark Trial and Appeal Board (“Board”) dismissed PYRAT RUM’s opposition to registration of PIRATE PISS for beer, ale and lager.  Patrón Spirits International AG v. Conyngham Brewing Company, Opposition No. 91226939 (June 8, 2018).  The Board, in an opinion authored by Administrative Trademark Judge Thomas W. Wellington, held that PIRATE PISS for beer is not likely to be confused with the already-registered mark PYRAT for rum.  By rejecting PYRAT RUM’s challenge, the Board is allowing Conyngham Brewing Company’s application for registration to proceed.

In dismissing the Opposition, the Board took into account a variety of considerations commonly referred to as the “du Pont factors.”  The opinion, organized according to the du Pont factors, found the following: Continue reading PYRAT rum and PIRATE PISS beer not confusable, according to TTAB

Net Neutrality Repeal is Anti-Consumer but the Problem is Even Bigger

This article was originally published on Commercial Appeal, part of the USA Today Network, as an opinion piece written by Mark Vorder-BrueggeClick here to view the original publication.

net neutrality

The Federal Communications Commission has now repealed its own 2015 “Net Neutrality” regulations. As controversial as this has been, it is just a small part of the federal government’s massive policy failure concerning the Internet.

Media reports over the past 15 years have detailed extensive horror stories of monopolistic service options, consumer price-gouging, frequent outages, and downright hostile support personnel.

A truly legitimate policy would be something like this: “High-speed, high-quality Internet access available to everyone at competitive prices, with minimal service disruptions and effective, user-friendly provider support.”

No version of the FCC regulations or any other agency initiatives, or Congress, or any president, has ever adopted a comprehensive policy of this type.

Continue reading Net Neutrality Repeal is Anti-Consumer but the Problem is Even Bigger

Is Inter Partes Review Unconstitutional?

By Stephen Hall

iStock_000019576650Large“Adjudication:”  a proceeding which leads to a judicial decision

On November 27, 2017, the Supreme Court heard arguments concerning a challenge to the most frequent form of patent challenges before the United States Patent and Trademark Office (“USPTO”), known as inter partes review (“IPR”).  The USPTO is a federal agency empowered by Congress to grant patents and perform other functions related to patents.  Its other functions include the authority to review previously granted patents and determine whether they were, in fact, validly granted.

In some cases, the need for review may occur because material not found by the patent examiner would have prevented the patent from being granted in the first place.  With all the millions of patents, published applications and journal articles in this country and worldwide, as well as other written publications, industry standards and activities that could affect the right to a patent, there is no system of patent searching guaranteed to uncover every relevant item.  Thus, for several decades, Congress has authorized Continue reading Is Inter Partes Review Unconstitutional?

Will the New USPTO Director’s Practical Thinking Translate to a More Flexible Approach and Better Decisions?

By Stephen Hall

Once-in-a-generation patent reform was introduced in our country about five years ago.  Similar to many major initiatives, it may have reaped a few unintended consequences as well.  Andrei Iancu, current nominee for USPTO Director, has written about one of these consequences that affects certain procedures at the Patent Office.  Among his many other writings, he also has written substantively concerning the patentability of software.  This post examines Mr. Iancu’s writings on both topics, and offers some thoughts on how his thinking could affect future patent cases.

THE SUBSTANTIVE: WHEN SHOULD SOFTWARE BE PATENTABLE?

There is not and never has been a bright line rule on the patentability of software-based systems.  Rather, patentability depends on the nature of the problem the system solves and the extent of the improvements over existing technology present in the solution.

Although most cases addressing the software issue begin by citing the 2014 Alice[1] case by the Supreme Court, Mr. Iancu was Continue reading Will the New USPTO Director’s Practical Thinking Translate to a More Flexible Approach and Better Decisions?

Mark Vorder-Bruegge Admitted to American College of Trial Lawyers

Mark Vorder-BrueggeMark Vorder-Bruegge, Jr. has become a Fellow of the American College of Trial Lawyers, one of the premier legal associations in North America.

The induction ceremony at which Mr. Vorder-Bruegge became a Fellow took place recently before an audience of approximately 600 persons during the recent 2017 Spring Meeting of the College in Boca Raton, Florida.

Founded in 1950, the College is composed of the best of the trial bar from the United States and Canada. Fellowship in the College is extended by invitation only and only after careful investigation, to those experienced trial lawyers of diverse backgrounds, who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality. Lawyers must have a minimum of fifteen years trial experience before they can be considered for Fellowship.

Continue reading Mark Vorder-Bruegge Admitted to American College of Trial Lawyers

Supreme Court Narrows Infringement for Sending Component(s) Abroad – But Only by a Little Bit

By Steve Hall

Last week, in a near-unanimous opinion rendered without dissent, the Supreme Court emphasized quantity over quality, holding that it is not an infringement under the Patent Act to supply a single component of a multi-component product being manufactured abroad.  Life Technologies Corp. v. Promega Corp., No. 14-1538, — S.Ct. –, 2017 WL 685531 (Feb. 22, 2017).  The particular section of the Act before the Supreme Court was 35 U.S.C. §271(f)(1), which makes it possible for infringement to arise from “[supplying] or [causing] to be supplied in or from the United States all or a substantial portion of the components of a patented invention.”  The purpose of the statute is to prevent a domestic manufacturer from making all, or substantially all, components for an infringing product in the U.S., while shipping the components overseas for assembly.  Id.  The combining of components overseas must be performed “in a manner that would infringe the patent if such combination occurred within the United States.”  35 U.S.C. §271(f)(1).

In terms of the discrete issue before it, the Supreme Court held that “when a product is made abroad and all components but a single commodity article are supplied from abroad, the activity” does not infringe.  Life Technologies Corp., at *8.  The product at issue was a Continue reading Supreme Court Narrows Infringement for Sending Component(s) Abroad – But Only by a Little Bit

The Impact of President Trump’s IP-Related Appointments

By Steve Hall and Kate Van Namen

sclaes with copyspace showing law justice or court concept

Having been sworn in as the Forty-Fifth president of the United States, Donald Trump will now appoint individuals who will leave their fingerprints on the intellectual property landscape.  Although it might not happen overnight, at some point in 2017 the President is expected to appoint a Director of the United States Patent and Trademark Office, and a new Supreme Court justice to fill the seat of Justice Antonin Scalia.  These are at least two of the significant appointments by President Trump related to intellectual property.

The USPTO Director sets the tone for hiring and promoting administrative judges, examiners, and supervisors – individuals who, collectively, exercise great power with respect to the protection and enforcement of intellectual property rights.  Also, the Director serves as the principal advisor to the President on domestic and international intellectual property policy matters.

Undoubtedly, the criteria for USPTO Director candidates will revolve around jobs.  The President has expressed the need for strengthening U.S. patents worldwide and preventing misappropriation of intellectual property as substantial factors in protecting jobs in this country.  Candidates who do not go to sleep at night thinking about Continue reading The Impact of President Trump’s IP-Related Appointments

Supreme Court Broadens “Article of Manufacture” for Design Patent Infringement, Declines to Do Anything Else

By Matt Lubozynski

iStock_000019576650LargeYesterday, in a unanimous opinion, the United States Supreme Court broadened what can be considered an “article of manufacture” for design patent infringement.  See Samsung Electronics Co. v. Apple Inc., No. 15-777, — S. Ct. —, 2016 WL 7078449 (Dec. 7, 2016).  “Patent protection is available for a ‘new, original and ornamental design for an article of manufacture.’”  Id. at *2 (quoting 35 U.S.C. §171(a)).  This is often referred to as a design patent.  A design patent is “infringed if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same.”  Id. (citation and quotation omitted).  Damages for design patent infringement are permitted under 35 U.S.C. § 289.  §289 states that an infringer “shall be liable to the owner to the extent of his total profit, but not less than $250[.]”  35 U.S.C. § 289.  The Supreme Court provided a two-part test for “[a]rriving at a damages award under §289[.]”  Id. at *4.  “First, identify the ‘article of manufacture’ to which the infringed design has been applied.  Second, calculate the infringer’s total profit made on that article of manufacture.”  Id.

In the current case, Apple sued Samsung in 2011 for infringing three of its design patents relating to its iPhone.  Id. at *4.  The design patents at issue covered a black rectangular front face with rounded corners, a rectangular front face with Continue reading Supreme Court Broadens “Article of Manufacture” for Design Patent Infringement, Declines to Do Anything Else

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