Dennis Crouch

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I am sad to report that Mark Banner of Banner & Witcoff passed away over the weekend. Mark was an important member of Chicago’s IP bar and an active participant in educating numerous lawyers as an adjunct professor at both John Marshall in Chicago and my alma mater the Georgetown University Law Center. My condolences go out to Mark’s family and the Banner & Witcoff firm.
Here is some more information on Mark’s legacy from Banner & Witcoff:
Mark was the lead trial counsel in many successful intellectual property trials from both the plaintiff’s and the defendant’s perspectives. He had a particular passion for jury trials of patent cases and computer-related technologies. Despite battling cancer for the last five years, Mark continued his involvement in litigation and counseling work. “Mark made significant contributions to the field of intellectual property law. He was an extremely gifted attorney, a loyal partner, and a devoted friend. Mark was an integral part of the firm and will be greatly missed,” said Thomas K. Pratt, President of Banner & Witcoff.
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Continue Reading In Memory of Mark Banner

Arminak & Assocs., Inc. v. Saint-Gobain Calmar, Inc., No. 06-1561, Slip Op. (Fed. Cir. Sept. 12, 2007) (Holderman, C.J., sitting by designation.).*
On behalf of Chief Judge Michel and Judge Gajarsa, the Northern District’s Chief Judge Holderman affirmed C.D. California’s holding that declaratory judgment plaintiffs’ (“Arminak”) “AA Trigger” shroud design for a spray bottle did not infringe declaratory judgment defendant’s (“Calmar”) design patents covering certain design elements of shrouds. The main issue, and one of first impression, was whether the “ordinary observer” for purposes of design patent infringement should be the end-user/purchaser of spray bottles or the industrial purchaser that buys triggers or shrouds for assembly into a finished spray bottle product. The district court held that the ordinary observer was the industrial purchaser and the evidence clearly established that industrial purchasers would not be confused by similarities between Arminak’s and Calmar’s patented shrouds. Calmar argued, however, that the Supreme Court in Gorham Mfg. Co. v. White, 81 U.S. 511 (1871), expressly excluded experts from being ordinary observers and that, therefore, retail purchasers had to be the ordinary observer. But the Federal Circuit noted that did not sell shrouds or fully assembled spray bottles including their respective shrouds to retail purchasers. The parties sell shrouds to industrial purchasers. Industrial purchasers, therefore, are the appropriate population of ordinary observers. The ordinary observer is:
A person who is either a purchaser or, or sufficiently interested in, the item that displays the patented designs and who has the capability of making a reasonably discerning decision when observing the accused item’s design whether the accused item is substantially the same as the item claimed in the design patent.
* This is not an appeal from the Northern District, but I am covering it because Chief Judge Holderman authored the Opinion. Thanks to Dennis Crouch at Patently-O for bringing the case to my attention.
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Continue Reading Federal Circuit Further Defines Ordinary Observer Test

My recent story about Ebert’s use of his “Two Thumbs Up” has been receiving a lot of attention (and I even scooped the Sun-Times):
Likelihood of Confusion — Ron Coleman agrees with E. Leonard Rubin, interviewed in the Chicago Tribune today, who says that the written “Two Thumbs Up” mark is pretty strong.
Robert Feder of the Chicago Sun-Times — Feder says that the “Two Thumbs Up” mark is “the most powerful and influential symbol in movie marketing.”
The fact that the Patent Reform Act has stalled in Congress, which I discussed earlier this week, has been picked up by several blogs:
Maryland IP Law Blog — Citing my post.
Patently-O — Dennis Crouch says that the Patent Reform Act is not just stalled, it is dead.
271 Patent Blog — Leads with a great Simpsons’ quote in saying the Act is on hold.
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Continue Reading Chicago IP Blog in the News

The Chicago IP boutique McDonnell Boehnen Hulbert & Berghoff (former home of Dennis Crouch and Patently-O) has generated another patent blog:  Patent Docs.  Patent Docs is focused on the biotech/pharma arts written by a group of attorneys who are all PhDs (hence the blog’s name).  Welcome to the conversation Docs.  We are glad to…

Jim Amend, a founder of the Kirkland & Ellis intellectual property group and longtime Chicagoan, was recently appointed the Federal Circuit’s Chief Circuit Mediator.  Jim will take charge of the Federal Circuit mediation program in January 2007, shortly after it was changed from a voluntary to a mandatory program.
Continue Reading Chicago IP Litigator James Amend Appointed Chief Federal Circuit Mediator