Federal Circuit Finds Claims Implemented on a General Purpose Cellphone Not Patentable

In Alice Corp. v. CLS Bank International, the Supreme Court applied its two-part test for patent eligibility under 35 U.S.C. § 101 – i.e., (1) whether the claims are drawn on a law of nature, natural phenomenon or abstract idea, and (2) whether the claims provide sufficient “inventive concept.” In Alice, the Supreme Court ultimately held that the claims were directed to the abstract idea of “intermediate settlement” and that the requirement of a general purpose computer was insufficient inventive concept to confer patent eligibility.

Since the Alice decision, many courts have referenced the Supreme Court’s discussion of a general purpose computer. However, in a recent precedential decision, the Federal Circuit further commented on whether reciting a conventional cellular telephone could provide sufficient inventive concept for patent eligibility.

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False Advertising Liability for Affiliate Marketing

The proliferation of e-commerce websites along with the rise of social media, blogging, and online communities has greatly increased the importance of affiliate marketing.  Affiliate marketing allows an affiliate to earn a commission by directing a customer to a company’s website to purchase a product.  Websites providing information, reviews, advice, and resources about particular types of products can earn substantial revenue by embedding affiliate links in webpages.  Affiliate marketers should be aware of a recent expansion in false advertising liability in the courts premised on negative reviews, rankings, and product comparisons.  Meanwhile, product manufacturers feeling aggrieved by statements made on product review websites now have a possible false advertising cause of action for seeking redress.

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Willfulness After Halo: Now What?

The general consensus is that the Supreme Court’s June decision in Halo Electronics v. Pulse Electronics eased the path to proving willfulness, as discussed previously on IP Litigation Current. Many speculated that one result of the Halo decision would be an increase in the value of patents, since a finding of willfulness may lead to trebling of damages.

While Halo did away with the objective prong of the willfulness inquiry, and also clarified that the requisite standard of proof for willfulness is a preponderance of the evidence as opposed to clear and convincing evidence, the question post-Halo has been: Now what? After all, the Supreme Court instructed that district courts “‘be guided by [the] sound legal principles’ developed over nearly two centuries of application and interpretation of the patent act.” Halo, 136 S. Ct. 1923, 1935 (2016) (quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005)). How have district courts have applied such guidance and legal principles post-Halo? Let’s have a look.

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Design Patents and Copyrights for Designs on Useful Articles

Two recent cases illustrate the potential benefits of protecting intellectual property rights with both design patents and copyrights, particularly for an article that has both utility and a design, including because a design patent infringement analysis may sometimes be more straightforward to apply. In a design patent case, Columbia Sportswear North America, Inc. v. Seirus Innovative Accessories, No. 3:15-cv-00064 (D. Or. Aug. 10, 2016), a court applied a clear-cut analysis in granting summary judgment of infringement of a design used for breathable heat-reflective material. In contrast, in a copyright case, Star Athletica, L.L.C. v. Varsity Brands, Inc., 136 S. Ct. 1823, No. 15-866, 2016 U.S. Lexis 3031 (2016), the Supreme Court has granted certiorari to examine the test of whether a feature of a useful article – such as a garment or piece of furniture – is conceptually separable from the article and thus protectable by copyright, which courts have consistently struggled with. Continue reading this entry

The Evolving Standard for Pleading Direct Patent Infringement

It has been a little more than half a year since the amendments to the Federal Rules of Civil Procedure abrogated Rule 84 and put an end to the Form 18 bare-bones style patent complaint.  The question on the minds of many patent litigators has been: What standard would emerge for pleading direct patent infringement in the post-Form 18 world?  The contours of the answer to that question have begun to emerge as many district courts are now requiring plaintiffs to allege sufficient facts to permit an inference that an accused product infringes each element of at least one patent claim.  Counsel for plaintiffs should take heed of this heightened pleading standard.  On the other side, counsel for defendants now have an additional tool in their toolbox for attacking bare-bones style patent complaints.

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