Features
Expanding Protections for Artistic Features of Utilitarian Objects
In April 2004, the Second Circuit Court of Appeals reversed a district court's conclusion that the features of Mattel's "CEO Barbie" and "Neptune's Daughter Barbie" were not protected by copyright. With little discussion, the three judge panel unanimously held that while Mattel's "particularized expression" in a "doll visage with upturned nose, bow lips, and widely spaced eyes" does not prevent a competitor from creating dolls with upturned noses, bow lips and widely spaced eyes, it does bar a competitor from copying Mattel's "realization" of the particular Barbie's features. <i>Mattel, Inc. v. Goldberger Doll Manufacturing Co.</i>, 365 F.3d 133, 136 (2d Cir. 2004).
Internet Usage Threatens Existence of Concurrent Use Registrations
In a rare concurrent use decision, <i>Hubcap Heaven, LLC v. Hubcap Heaven, Inc.</i>, Concurrent Use No. 94001147 (Jan. 25, 2005) [not citable], the Trademark Trial and Appeal Board ("TTAB") questioned the continued viability of concurrent use registrations in the face of the Internet's global reach. Concurrent usage is based on the premise that two owners of the same trademark for competing goods and services can coexist by carving out strict geographic territories for each user. The Internet, however, has no geographic boundaries.
Features
Drafting Patent Infringement Complaints: Avoiding the Trap of 'Model' Form 16 of the Federal Rules
Most attorneys follow model Form 16 in the Appendix of Forms to the Federal Rules of Civil Procedure ("FRCP") when drafting patent infringement complaints. However, in unique factual situations, Form 16-style complaints may not be sufficient to survive Rule 12(b)(6) motions to dismiss and/or Rule 12(e) motions for a more definite statement. For instance, some courts have found complaints that fail to aver particular infringing products to lack the requisite specificity, especially when the asserted patent claims could be read to cover hundreds of a defendant's products. Failing to take these exceptions to the Form 16 standard into account can lead to unnecessary delay and work for the plaintiff (or, conversely, strategic opportunities for the defendant). This article discusses these unique situations, and how counsel may properly draft patent infringement complaints in order to survive Rule 12(b)(6) and Rule 12(e) motions.
Features
IP News
Highlights of the latest intellectual property news and cases from around the country.
IP News
Highlights of the latest intellectual property news from around the country.
Recent Federal Circuit Opinion Highlights Risks of IP Rights in Government Contracts
In a case that should serve as a warning to firms with active intellectual property development programs and that have, or aspire to have, the federal government as a customer, the U.S. Court of Appeals for the Federal Circuit recently ruled that a government contractor that failed to properly disclose an invention developed pursuant to a government contract forfeited title and all rights to the invention and its related patent. <i>See Campbell Plastics Eng'g & Mfg., Inc. v. Brownlee</i>, No. 03-1512, 2004 U.S. App. LEXIS 23502 (Fed. Cir. Nov. 10, 2004). The case demonstrated the government's willingness to seek, and ability to obtain, the particularly harsh remedy of forfeiture.
Features
The Medicare Modernization Act of 2003:The Effect on Entry of Generic Drugs into the Marketplace
The Hatch-Waxman Act, enacted in 1984, first permitted the marketing of generic pharmaceuticals based on a showing of bioequivalence, not safety and efficacy, through the use of an Abbreviated New Drug Application ("ANDA"). By significantly lowering the barrier to entry for generics, this change provided the impetus for rapid growth of the generic pharmaceutical industry in the United States. In exchange for this barrier lowering, Congress provided the holder of the previously approved new drug application ("NDA") with patent term extensions based on FDA regulatory delay.
Features
Extraterritorial Application of U.S. Patent Laws: NTP, Inc. v. Research in Motion
Members of Congress rely on them, and many lawyers compulsively check them, but until recently, most users did not realize that every e-mail message sent to or from their BlackBerry handheld device is routed through a Relay station in Canada, which Research in Motion, Ltd. ("RIM"), the maker of the BlackBerry, calls home. The location of this Relay was a central issue in a patent infringement dispute between NTP, Inc., the holder of patents related to mobile electronic e-mail, and RIM, with RIM claiming it did not infringe NTP's patents because a key component of its BlackBerry system, and a necessary element of NTP's patent claims, resides outside the United States. But the courts have sided with NTP. (Editor's note: The case was recently settled. See IP News for details.)
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