IP News Shorts

Posted on August 21, 2009 by R. David Donoghue

Here are a few stories from the blogosphere that I did not have time to fully cover this week because of pressing client matters and some new opportunities:

  • The Federalist Society is offering an excellent podcast discussing Bilski from almost every possible angle.  The podcast features West Virginia University Law Professor Michael Risch and American University Law Professor Joshua Sarnoff, who filed competing amicus briefs.  The podcast is a half-hour well spent for  anyone involved in patent law.  Click here to listen to the podcast.  Hat tip to Duncan Bucknell at the IP Think Tank Blog for pointing out the podcast.
     
  • Doug Lichtman's IP Colloquium takes a thorough look at the copyright issue of the year thus far, Shepard Fairey's iconic Obama image, and Lichtman offers free CLE credit for listening.  Click here for that edition and here for the IP Colloquium's archives.
     
  • Michael Atkins has identified the top five trademark cases of the last year at the Seattle Trademark Lawyer.  Number 4 is the Seventh Circuit's decision in AutoZone v. Strick.  Click here for more on the district court decisions in the case from the Blog's archives.  This is what Atkins had to say about the Seventh Circuit's decision:

[G]ood likelihood of confusion analysis in reversal of hard-fought trademark infringement case, which also was one of the first dilution cases under the [Trademark Dilution Revision Act].

 

 

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Obviousness Redux: Arm-chair Quarterbacking KSR v. Teleflex

Posted on May 1, 2007 by R. David Donoghue

KSR v. Teleflex, 550 U.S. __ (2007).

A unanimous Supreme Court rolled back the Federal Circuit's teaching, suggestion or motivation obviousness test in favor of the Court's prior, and substantially broader, test as set forth in Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966).  Justice Kennedy delivered the Court's opinion and called the Supreme Court's approach to obviousness "broad and flexible."  The Court also noted that because the parties did not dispute the prior art, the claim's scope or the level of ordinary skill in the art and because obviousness is a legal question, the district court was correct to grant summary judgment in this case.

In addition to bringing the Fed. Cir. down to size, the Supreme Court also took a swipe at the PTO:

We need not reach the question whether the failure to disclose [the prior art reference] during the prosecution . . . voids the presumption of validity given to issued patents, for claim 4 is obvious despite the presumption. We nevertheless think it appropriate to note that the rationale underlying the presumption - that the PTO, in its expertise, has approved the claim - seems much diminished here.

The KSR decision opens up obviousness and will make obviousness a much larger issue in patent cases.  And whatever else the "new" old law may do, it will keep patent litigators very busy for years to come.  You can download a PDF of the Court's opinion from the Blog's archives.

Here is a list of links to other KSR commentary across the internet, as you can see you could read about KSR all week:

Patently-O

Prof. Sarnoff via Patently-O

WSJ Law Blog (with interesting comments from several key players and practicioners)

Patent Docs

Infinite Monkey Theorem

File Wrapper

271 Patent Blog

Tech Dirt

Patent Prospector

Fire of Genius and here

Orange Book Blog (for the decisions effect on pharma patents)

Michael Barclay of Wilson Sonsini via the SCOTUS Blog

Dan Bromberg of Quinn Emanuel via the SCOTUS Blog

Chicago Tribune

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