Patents / Inequitable Conduct - Failure to Update Examiner of Status of Related Applications May Result In Inequitable Conduct
Patents / Obviousness - Over Three Dissents, Federal Circuit Denies Rehearing in Norvasc® Decision
Patents / Public Use - “Public Use” Means Use for Invention’s Intended Purpose
Patents / Lost Profits - No Lost Profits from Sales Prior to Patentee’s Market Entry
Patents / Interferences - Appeals Board Must Base Decisions on Record, Not Its Own Expertise
Patents / Damages - Reasonable Royalty Calculation—Expanding Beyond “Established” Royalties
Patents / Interference - Inventor Need Only Appreciate Invention Corresponding to Court for Reduction to Practice
Patents / Litigation / Procedure - How Many Feet of Fruit Does It Take to Be a “Successor”?
Trademark / TTAB Practice - ASPIRINA Merely Descriptive of Analgesic Goods
Trademarks / Litigation - More Than Breach Required to Set Aside Consent Judgment
Copyrights / Fair Use - Google’s Use of Thumbnails of Perfect 10’s Copyrighted Images Are Fair Use
Patents / Legislation - Recent Developments in Patent Reform Legislation
Patents / Inequitable Conduct
Failure to Update Examiner of Status of Related Applications May Result In Inequitable Conduct
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Affirming a district court ruling which had taken the relatively rare step of holding an asserted patent unenforceable due to inequitable conduct, the U.S. Court of Appeal for the Federal Circuit emphasized several categories of information that a patent prosecutor must disclose to the U.S. Patent and Trademark Office (USPTO) in order to satisfy a patent applicant’s duty of candor. McKesson Information Solutions, Inc. v. Bridge Medical, Inc., Case No. 06-1517 (Fed. Cir., May 18, 2007) (Clevenger, J.; Newman, J., dissenting).
The district court found that McKesson’s patent was unenforceable due to inequitable conduct during prosecution based on failure by the patent attorney to submit three material pieces of information during prosecution of three related applications, two examined by one examiner (Trafton) and a third by a different examiner (Lev). The materials included a prior art patent that had been brought to the attorney’s attention by Examiner Lev in a co-pending application, the rejection of claims in that same co-pending application and the allowance of another co-pending application.
The first item of non-disclosed information was a prior art patent that had been brought to the patent attorney’s attention by Examiner Lev. While the patent attorney notified Examiner Trafton of the co-pending application, the cited prior art patent was not expressly disclosed. The Court concluded that the prior art patent was material and non-cumulative as it described the relevant three-node system (relied on by applicant for patentability in the application before Examiner Trafton) in greater detail than any other reference. The Court concluded that the high materiality of the reference and lack of a credible explanation for the non-disclosure supported the conclusion that the district court did not commit clear error. In particular, the Court found that the prosecuting attorney’s cancellation of claims directed to both a three-node communication and a unique address in response to a rejection in view of the prior art patent gave rise to an inference that he recognized the patent would present a significant obstacle to patentability in the related application.
The second item of non-disclosed information was the prosecuting attorney’s failure to inform Examiner Trafton about the grounds of rejection of substantially similar claims pending before Examiner Lev. The Court analogized the facts to those in its own precedent, Li Second Family Ltd. v. Toshiba Corp., and found significant similarities. As in Li Second Family, the examiner of one application (Trafton) was not apprised of the adverse decisions by another examiner (Lev) in a closely related application. The patent attorney failed to mention the adverse decisions in the related application, and the patent attorney also made statements to the examiner inconsistent with the other examiner’s decisions, i.e., that nothing in the prior art disclosed relevant three-node communication. The Court also rejected the argument that disclosure to Examiner Trafton of the existence of the application being examined by Examiner Lev was sufficient to discharge the attorney’s Rule 56 duty of disclosure.
Finally, the Court held that failure to disclose the allowance of a different co-pending application constituted a third instance of inequitable conduct. According to the Court, the allowance gave rise to a “conceivable double patenting rejection” and therefore should have been disclosed. The Court affirmed on this basis despite the fact that the same USPTO examiner reviewed both applications, citing the Manual of Patent Examining Procedure (MPEP) provision that counsels attorneys not to assume that an examiner remembers every detail of every file.
Judge Newman dissented. In her view, there was no clear and convincing evidence of deceptive intent simply because the prosecuting attorney did not inform the examiner of a related case of common parentage or of a reference cited in the related case. “To avoid the inequity resulting from litigation driven distortion of the complex procedures of patent litigation, precedent firmly requires that the intent element … must be established by clear and convincing evidence of deceptive intent—not of mistake, if there were such, but of culpable intent.”
Practice Note: This decision significantly increases the extent to which the duty of candor extends to activities occurring during prosecution of related applications.
Patents / Obviousness
Over Three Dissents, Federal Circuit Denies Rehearing in Norvasc® Decision
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With three judges filing dissenting opinions, the U.S. Court of Appeals for the Federal Circuit denied Pfizer’s petition for rehearing and rehearing en banc of its April 2007 decision finding a new salt form of a composition obvious in view of the prior art and holding that a motivation to combine references can be gleaned from the nature of the problem to be solved. Pfizer Inc. v. Apotex, Inc., Case No. 06-1261 (May 21, 2007) (Michel C.J.; Newman J.; Lourie J.; Rader J., dissenting)
Pfizer owns U.S. Patent No. 4,879,303 (the ’303 patent), which relates to amlodipine besylate, marketed as Norvasc®. Pfizer was previously awarded U.S. Patent No. 4,572,909 (the ’909 patent), which discloses 10 pharmaceutically acceptable acid addition salts of amlodipine and describes maleate as the preferred salt. Pfizer scientists subsequently encountered two problems with the amlodipine maleate tablet formulation: chemical instability and stickiness. After testing seven other acid addition salts of amlodipine, Pfizer settled on amlodipine besylate and filed a further U.S. patent application that matured into the ’303 patent. During prosecution, the examiner initially rejected the claims as obvious over the ’909 patent in view of secondary references. Pfizer overcame the rejection by filing a declaration from one of its scientists stating that the besylate salt of amlodipine is a unique compound and not an obvious one.
As reported in the IP Update (Vol. 10, No. 4), the original panel decision stated that “obviousness cannot be avoided simply by a showing of some degree of unpredictability in the art so long as there was a reasonable probability of success” and pointed to Pfizer’s supplemental FDA filing, which indicated that the besylate salt of amlodipine would work for its intended purpose. The panel also rejected Pfizer’s assertion that amlodipine besylate would have been, at most, obvious to try, noting that only one parameter needed to be varied via routine testing and that the prior art taught a specific approach to the problem rather than only a “general approach that seemed to be a promising field of experimentation.” The panel further rejected the district court’s finding of unexpected results because the record showed no evidence of what the skilled artisan would have expected. Summarizing its findings, the panel concluded that “[a]t most, then, Pfizer engaged in routine, verification testing to optimize selection of one of several known and clearly suggested pharmaceutically acceptable salts to ease its commercial manufacturing and marketing of the tablet form of the therapeutic amlodipine.” Pfizer subsequently filed a petition for a rehearing en banc.
Although en banc rehearing was denied, three judges dissented. In her dissent, Judge Newman accused the panel of misapplying the obvious-to-try standard as well as declining to consider the unexpected result represented by the stability and lack of stickiness of the besylate salt. Judge Newman alleged that the panel changed “the criteria and analysis of patentability.” Judge Lourie, in his dissent, charged the panel with erring in its legal determinations and predicted that the panel’s errors will confuse the law relating to the rebuttal of a prima facie case of obviousness for a chemical compound. Judge Rader, in the final dissent, noted that three separate district courts held trials involving the patent in suit and came to the same factual conclusion regarding the non-obviousness of amlodipine besylate. Echoing Judge Lourie’s dissent, Judge Rader concluded that, given that the district court’s factual determinations were not clearly erroneous, the panel should have deferred to those factual findings. With regard to the panel’s “obvious to try” analysis, Judge Rader noted that “[w]ith unpredictable pharmaceutical inventions, this court more wisely employs a reasonable expectation of success analysis,” and since salt selection is unpredictable, there would be no reasonable expectation of success in this case.
Patents / Public Use
“Public Use” Means Use for Invention’s Intended Purpose
By Paul Devinsky
Addressing whether a “public use” resulted when an ergonomic keyboard not connected to any device (e.g., a computer) was publicly displayed more than one year prior to the application filing date, the U.S. Court of Appeals for the Federal Circuit overturned a summary judgment that the patents in suit were invalid under § 35 U.S.C. § 102(b) because the keyboard was not used in public to enter data into a computer. Motionless Keyboard Co. v. Microsoft Corp., Case No. 2005-1497 (Fed. Cir., May 29, 2007)(Rader, J.).
Motionless Keyboard Company (MKC) is the owner of the U. S. patents directed respectively to an ergonomic keyboard designed to accommodate the architecture of the human hand, where only slight finger gestures are needed to actuate the keys and to a hand-held device that frees the thumb to actuate the keys within a keyboard disposed entirely within a cavity. The inventor developed a prototype keyboard that allegedly embodied both patents; the prototype was designated the Cherry Model 5. MKC sued Microsoft and others for infringement of the two patents.
The inventor, Gambaro, disclosed the prototype to various people, including his business partner, a friend, potential investors and a typing tester. In all these disclosures, except for the typing tester, the prototype was not connected to a computer or any other device. The district court reasoned that these disclosures evidenced that the invention entered the public domain prior to the critical date because the inventor’s business partner was under no secrecy obligation and that, notwithstanding a non-disclosure agreement (NDA), the demonstrations to potential investors were public uses. MKC appealed.
The Federal Circuit reversed, citing In re Smith and noting that under § 102(b), a “public use” means any use of the claimed invention by a person other than the inventor who is under no limitations, restrictions or obligation of secrecy to the inventor. Because the prototype was not connected to any device, the Court ruled that the disclosures did not amount to “public use” because these disclosures only visually displayed the keyboard design without putting it into use, i.e., without disclosure of the prototype’s ability to translate finger movements into actuation of keys to transmit data.
With respect to the typing tester, testing was performed after the critical date of one patent but prior to the critical date of the other. The typing tester signed a NDA on the same day that the typing test was performed, and the testing was only done once. The Court ruled that the typing test did not amount to a “public use” because it was merely a one-time typing test coupled with a signed NDA.
Practice Tip: If the claimed invention is publicly disclosed before the critical date, then determine if the invention was used for its intended purpose (the purpose can be found, e.g., in the specification or the preamble of the claim); if it was displayed but not used for its intended purpose, then the display will not be a “public use.” Even where a claimed invention is used for its intended purpose prior to the critical date, the issue of whether a § 102(b) “public use” arose must be analyzed based on factors such as the number of uses, whether the uses were for testing purposes (i.e., experimental use) and whether the use occurred under some restriction such as a NDA.
Patents / Lost Profits
No Lost Profits from Sales Prior to Patentee’s Market Entry
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The U.S. Court of Appeals for the Federal Circuit reversed the jury’s award of lost profit damages and the district court’s grant of judgment as a matter of law (JMOL) that the defendant was personally liable for inducing patent infringement. Wechsler v. Macke Int'l Trade, Inc., Case Nos. 05-1242, -1243 (Fed. Cir., May 18, 2007) (Prost, J.).
Defendant O’Rourke is president, lone stockholder and sole employee of Macke International Trade. O’Rourke was sued by Wechsler for patent infringement. At the time of the lawsuit, Macke was selling the accused device, but subsequently took the device off the market. Approximately one year after Macke stopped selling the device, Wechsler began to manufacture and sell a similar product.
On motions for summary judgment, the district court held that Mr. O’Rourke was not an alter ego of Macke International and was not personally liable for infringement. Following trial, the jury returned a special verdict, finding Macke and O’Rourke willfully infringed and granted Wechsler lost profits and reasonable royalties for the infringement. The jury, however, found that O’Rourke was not personally liable for inducing Macke’s infringement. Nevertheless, the district court granted Wechsler’s motion for JMOL that O’Rourke was personally liable for inducing infringement. Macke appealed.
The Federal Circuit overturned a jury verdict that Wechsler was entitled to lost profits damages. Generally, there can be no lost profits if a patentee is not selling a product. The “only exception is where the patentee has the ability to manufacture and market a product, but for some legitimate reason does not.” Even then, “[o]nly if it is indicative of the ability to manufacture and market the patented device during the period of infringement is it relevant.” Here, the Court concluded that, “despite his later success manufacturing and marketing a product, Wechsler lacked the capability to manufacture his device during the period of infringement.” Further, evidence did not show Macke’s infringing sales pre-empted subsequent sales by Wechsler or eroded the market price.
Similarly, in reversing the district court’s grant of JMOL that O’Rourke was personally liable for inducing patent infringement, the Court emphasized the distinction between a finding of willful infringement of a company and a finding of personal liability for inducing willful infringement by a corporate officer. The Court said, “personal liability for inducement must be supported by personal culpability … requires the officer to have possessed a specific intent to ‘aid and abet’ the infringement.” On the other hand, willful infringement “is whether the infringer had a good faith belief that the patent was invalid and/or not infringed.”
Patents / Interferences
Appeals Board Must Base Decisions on Record, Not Its Own Expertise
Contact: Paul Devinsky
In an appeal of an interference decision, the U.S. Court of Appeals for the Federal Circuit reversed a decision of the Board of Patent Appeals and Interferences (the Board) of the U.S. Patent and Trademark Office (USPTO) because the Board impermissibly relied on its own expertise to reach a conclusion not supported by substantial evidence in the record. Robert D. Brand v. Thomas A. Miller, Case No. 06-1419 (Fed. Cir., May 14, 2007) (Dyk, J.).
U.S. Patent No. 5,865,232 naming as inventor Thomas Miller of Miller Veneers is directed to a method of more efficiently cutting wood veneer from logs. U.S. patent application Serial No. 09/377,120 names Robert Brand, of Capital Machine Co., as an inventor and claims the same invention. Miller was one of Capital’s customers, and the two companies had had a close working relationship. Miller argued that he was the first to conceive and reduce to practice. Miller further argued that Brand had derived the invention from Miller.
The Board denied Miller’s priority claim, which he did not appeal. Miller based his derivation argument on two drawings that he had allegedly shown Brand before Brand’s conception of the invention. The Board accepted Miller’s argument, reasoning that one skilled in the art would have recognized the suitability of the subject of one of the drawings for securely supporting a component in a position depicted in the other drawing. Furthermore, the Board held that one of the drawings alone was sufficient to teach one of ordinary skill in the art how to practice the invention. However, the Board did not cite any testimony or any support in the written record to support its conclusions.
On appeal, the Federal Circuit found that the Board’s decision was not supported by the evidence in the record. According to the Court, because the dispute was “a contested proceeding involving ‘resolution of conflicting, private claims to a valuable privilege,’ it is particularly important that the agency’s decision on issues of fact be limited to the written record made before the agency.” The Court noted that a patent interference is a contested case, and the Board must act as an “impartial adjudicator.” The Court reminded the Board that “it is impermissible for the Board to base its factual finding on its expertise, rather than on evidence in the record, although the Board’s expertise appropriately plays a role in interpreting record evidence.” Here, the Board found that a person of skill in the art would have determined how to make the invention from drawings without any testimony to that effect. Thus, the Court concluded that the Board “substituted” rather than “interpreted” the evidence.
Patents / Damages
Reasonable Royalty Calculation—Expanding Beyond “Established” Royalties
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The U.S. Court of Appeals for the Federal Circuit affirmed a district court’s calculation of “reasonable royalties” that accounted for intangible benefits conferred on the market by the patentee’s licensing program. Monsanto Co. v. McFarling, Case Nos. 05-1570, -1598 (Fed. Cir., May 24, 2007) (Perry, J.).
In order to purchase Monsanto’s patented, genetically modified soybean seeds, farmers were required to sign a “Technology Agreement,” which granted them a license to use the seeds, subject to various obligations: payment of a “Technology Fee” directly to Monsanto; a promise to purchase seeds only from authorized Monsanto dealers; and a promise to use the seeds only for that season. McFarling violated the terms of this agreement by improperly replanting seeds containing the patented technology. Monsanto successfully sued for infringement.
Pursuant to 35 U.S.C. § 284, Monsanto sought damages equivalent to “reasonable royalties” expected from the infringing period. The district court denied McFarling’s motions to limit these damages to only the Technology Fee, or $6.50 per bag of seed, and the jury returned an award of $40 per bag of seed.
The district court found, and the Federal Circuit affirmed, that because the Technology Agreement imposed an obligation to purchase from authorized distributors that charged an additional $19 to $22 per bag, “[i]n effect, the amount … that can be characterized as a pure royalty payment was $25.50 to $28.50.” However, despite recognizing that “[a]n established royalty is usually the best measure of a ‘reasonable’ royalty,” the Federal Circuit held that it would have been improper to limit the calculation of Monsanto’s damages to only that amount.
Evidence presented at trial showed that the licensing program was of great intangible value to Monsanto by protecting its reputation among the farmers and providing leverage with seed distributors. Even though it is difficult to assign a dollar value to these benefits, they “nonetheless justify the jury’s finding that a reasonable royalty for a license to engage in conduct like Mr. McFarling’s would exceed the amount of the payments made by farmers who participated in the licensing program.”
The Court also relied on expert testimony to determine the actual dollar benefit conveyed to the farmers in having access to Monsanto’s technology through increased crop yield and cost savings. The Court noted that, based on those advantages alone, it was reasonable for the jury to suppose that, in a hypothetical negotiation, a purchaser would pay a royalty of $40 per bag for the seed. Noting that a jury’s award will be affirmed unless “grossly excessive or monstrous, clearly not supported by the evidence or based only on speculation or guesswork,” the Court found sufficient reasons to affirm the jury’s verdict.
Practice Note: Under McFarling, practitioners will have more evidence at their disposal to define a “reasonable royalty.” The Patent Reform Act of 2007 reflects the same flexible standard by proposing that in addition to the terms of non-exclusive licensing agreements, courts “may also consider … any other relevant factors under applicable law.” Sec. 5(a)(4).
Patents / Interference
Inventor Need Only Appreciate Invention Corresponding to Court for Reduction to Practice
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In addressing the issue of the extent to which a party need appreciate an embodiment of its invention to show that the party was first to actually reduce the claimed invention to practice, the U.S. Court of Appeals for the Federal Circuit vacated and remanded a judgment by the U.S. Patent and Trademark Office’s Board of Patent Appeals and Interferences (the Board), finding that in terms of the scope of the interference count, the appellant did appreciate the invention at the time of its alleged actual reduction to practice. Henkel Corp. v. Proctor & Gamble Co., Case No. 06-1542 (Fed. Cir., May 11, 2007) (Linn, J.)
Henkel and P&G each invented a dishwashing tablet comprised of a solidified solution (or melt) portion and a compressed portion that dissolved at a faster rate than the melt portion. In an interference proceeding concerning the invention, the Board awarded priority to P&G based on the priority date of its application for patent being earlier than the priority date of Henkel’s two German priority applications. During the interference proceeding, Henkel argued priority on the basis that it had both conceived and reduced the invention to practice at the same time.
Henkel’s argument relied on the evidence that its inventors had observed that the melt region of the tablet does not dissolve in the pre-wash cycle, whereas the compressed region of the same tablet lost about 30 percent of its weight during the same cycle. Additional research showed that tablets with a melt region lost a smaller percentage of their weight compared to tablets without a melt region. P&G argued that in order to measure comparative dissolution rates, samples of compressed and melt regions had to be apportioned into equal weights and tested at a constant temperature in separate compartments. Although the Board disagreed with P&G’s standard, the Board held that Henkel’s inventors had failed to appreciate that which they had invented contemporaneously with their conception and reduction to practice because the inventors had not calculated a specific measurement of dissolution rates. Henkel appealed.
The Federal Circuit reversed, finding that the Board held Henkel to a more stringent standard than warranted for the count in interference. The count did not recite specific dissolution rates, only that one portion of the tablet dissolves faster than the other. Since Henkel’s inventors had shown that the two portions of the tablet dissolved at different rates, the Court held that Henkel had enough evidence to demonstrate that its inventors appreciated that the tablet met the “faster rate” limitation as broadly recited in the count. “As a matter of law, we do not require that a junior party in an interference demonstrate that it recognized the exact language of the ultimate count—only the subject matter of the invention.”
Patents / Litigation / Procedure
How Many Feet of Fruit Does It Take to Be a “Successor”?
By Paul Devinsky
In a procedurally complex case spawning a virtual tutorial on civil procedure (Fed. R. of Civil Pro. 12 (b)(6) and 15(a)), the U. S. Court of Appeals for the Federal Circuit, applying regional circuit law, has construed defendants status as a “successor” to a release and settlement agreement and affirmed the dismissal of a counter-claim that the defendant did not replead in response to an amended complaint. General Mills, Inc. v. Kraft Foods Global, Inc., Case Nos. 06-1569, -1606 (Fed. Cir., May 16, 2007) (Linn, J.).
General Mills sells rolled food items under the brand name Fruit by the Foot®. General Mills sued Farley for infringement of certain patents, a dispute resolved through a settlement agreement that released General Mills patent claim and granted Farley (and its successors) a covenant not to sue for past, current or future infringement. “Farley” is defined in the settlement agreement to include Farley’s “parent corporations, subsidiaries, heirs, executors, administrators and corporate predecessors and successors.” (Emphasis added). The settlement agreement also contained various provisions that limited assignment or transfer of rights under the agreement. Specifically, Farley was required to transfer its entire rolled food product business, including all assets, goodwill and trademarks, to the party to whom the rights and obligations are being assigned.
Through an intermediate transaction, Kraft succeeded to the entire rolled fruit product business of Farley. Afterward Kraft transferred certain Farley assets, including the Farley trademark and goodwill, to an entity known as Catterton, but retained a portion of the original Farley assets and Farley’s rolled food business. Kraft later sold the remainder of its rolled food business and transferred whatever rights it had under the settlement agreement to Kellogg.
General Mills brought this action against Kraft, whereupon Kraft filed an answer and a counterclaim alleging that General Mills breached the settlement agreement by filing suit. After General Mills replied to Kraft’s counterclaim, Kraft moved for summary judgment. Subsequently, General Mills filed an amended complaint in which it reasserted the patent infringement claim from the original complaint and asserted a new breach of contract claim, alleging the Kellogg transaction constituted a breach of settlement agreement.
Kraft moved to dismiss both counts of the amended complaint under Fed. R. Civ. P. 12(b)(6). However, Kraft never answered the amended complaint or reasserted its counterclaim. The district court granted Kraft’s motion to dismiss the patent infringement claim and declined to exercise jurisdiction over the remaining state-law contract claim. After entry of judgment, Kraft sought guidance from the district court as to how to proceed with its counterclaim. The district court explained that because Kraft did not reassert its counterclaim in response to the amended complaint, no counterclaim was pending when the district court entered judgment and that the judgment was therefore final and complete. Both parties appealed.
Notwithstanding the fact that the settlement agreement specified Minnesota law, General Mills argued that, under Federal Circuit law, patent licenses are personal and non-transferable. Citing Rhone-Poulenc Agro and rejecting this contention, the Court noted that its “case law recognizes … the “need for a uniform national rule that patent licenses are personal and non-transferable in the absence of an agreement authorizing assignment.”
Next, the Court rejected General Mills argument that the Catterton deal divested Kraft of any rights it might have had under the settlement agreement because without all of the Farley assets Kraft cannot be “Farley” under the settlement agreement. The Federal Circuit noted that the settlement agreement does not prohibit Farley’s retention of the settlement agreement and sale of other assets. Because the Catterton transaction did not purport to assign Kraft’s rights under the settlement agreement, the Court found that restrictions imposed by the settlement agreement simply did not apply to the Catterton deal. The Court pointedly noted that while “General Mills and Farley could have agreed to impose on Farley or Farley’s successor ongoing obligations such as the retention of specified assets, they did not do so. There is simply nothing in the contract that requires Kraft to retain all or any particular assets of the Farley business to preserve Kraft’s status as successor.”
As for its counter-claim, Kraft argued that its timely filing of a Rule 12(b)(6) motion to dismiss tolled the deadline for filing a responsive pleading to the amended complaint until 10 days after the motion was ruled upon. The Federal Circuit noted that the relevant tolling provision is Fed. R. Civ. P. 12(a)(4)(a) and that, under that rule, the filing of a motion to dismiss does not extend the time for filing an answer to an amended complaint. Rather, the Court noted that the deadline for responding to an amended complaint is the 10-day period established by Fed. R. Civ. P. 15(a).
Practice Note: The Court specifically declined to speak to whether the license interpretation rule articulated in Rhone-Poulenc applies in contexts where the parties have not agreed to their own assignment provisions or where other sources of law, such as the Bankruptcy Code, might trump ordinary contract provisions. Another take-away for practitioners is that patent owners, when drafting transfer provisions in license or settlement agreements, are advised to address the requirements (if any) contemplated regarding the retention of all or part of the transferred assets by the initial transferee.
Trademark / TTAB Practice
ASPIRINA Merely Descriptive of Analgesic Goods
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A divided panel of the U.S. Court of Appeals for the Federal Circuit upheld the Trademark Trial and Appeal Board’s (TTAB’s) mere descriptiveness refusal of the mark “ASPIRINA” for analgesics. In re Bayer Aktiengesellschaft, Case No. 06-1279 (Fed. Cir., May 24, 2007)(Moore, J.; Newman, J. dissenting).