The Public Interest, EPROMs, and Domestic Industry Issues in Component Manufacturer S. 337 Investigations

Since the Supreme Court’s decision in eBay Inc. v. MercExchange, LLC, 547 U.S. 388 (2006), injunctions are an infrequent remedy for patent infringement in federal district courts.  Yet, an exclusion order – the functional equivalent of an injunction – is the remedy issued when a violation of Section 337 is found by the International Trade Commission (ITC).  This means that component manufacturers and their downstream customers may have their products excluded from entry into the United States, even if the infringing component is only a small part of the downstream product.  This article addresses issues with respect to the public interest, what are commonly known as the EPROMs factors, and issues with respect to domestic industry that arise in ITC Section 337 investigations against component manufacturers and their downstream customers.

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Is the "Food Court" Closing?

For years the United States District Court for the Northern District of California has been known as the “Food Court.” It acquired the name because both plaintiffs and defendants viewed it as pro-plaintiff in class action food product false advertising cases. This led to a disproportionate number of those cases being filed there. The decision in Strumhauf v. Starbucks Corp., 2018 WL 306715 (N.D. Cal. Jan. 5, 2018) is the most recent of a number of cases indicating that the “Food Court” is closing for many food claim class actions. Continue reading this entry

Unique Venue and Personal Jurisdiction Challenges of Foreign Corporations

In 2017, the Supreme Court rejected the Federal Circuit’s longstanding interpretation of Personal Jurisdiction and Venue in patent infringement actions against domestic companies. 28 U.S.C. §§ 1391, 1400; see TC Heartland LLC v. Kraft Food Group Brands LLC, 137 S. Ct. 1514 (2017). Under TC Heartland, a domestic corporation can only be sued in its State of incorporation or a district where it has both committed acts of infringement and has a regular and established place of business. See id. In effect, the Supreme Court lessened the ability to “forum shop” in jurisdictions with favorable win rates and local patent rules. See id. Notably, the Supreme Court expressly did not address Brunette Mach. Works, Ltd. v. Krockum Indus., Inc., 406 U.S. 706 (1972) which analyzed personal jurisdiction and venue over foreign corporations. See TC Heartland, 137 S. Ct. at 1520 n.2. As such, foreign corporations, presently, are not afforded the same arguments and conveniences regarding forum shopping and unfamiliar jurisdictions. See § 1391(c)(3); id.

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Federal Circuit Rejects Appeal of Walker Process Claim

In Xitronix Corp. v. KLA-Tencor Corp., No. 2016-2746 (Fed. Cir. Feb. 9, 2018), the Federal Circuit considered whether it or a regional circuit had jurisdiction over an appeal of a case raising only Walker Process antitrust claims. The court held that, in view of the Supreme Court’s decision in Gunn v. Minton, 568 U.S. 251 (2013), the Federal Circuit did not have jurisdiction and it transferred the case to the Fifth Circuit.

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New Possibilities for Copyrighting Consumer Products

Traditional wisdom has been that aesthetic designs for three-dimensional consumer products, while protectable by design patents and as trade dress, are not protectable under copyright law which is typically associated with purely artistic works.  However, the Supreme Court’s March 2017 decision in Star Athletica, L.L.C. v. Varsity Brands, Inc. refined the test for copyrightability of so-called “useful articles,” opening the door to copyright protection for a broader array of consumer product shapes and patterns. Now, several recent cases interpreting Star Athletica confirm that the right kind of industrial designs can indeed be copyrighted. Given that copyright registrations cost so little to acquire, last for decades, and carry the potential for high damages against infringers, companies should consider whether certain of their consumer product designs may now be eligible for copyright protection.

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