Justia Intellectual Property Opinion Summaries

Plaintiffs are photographers who sued Defendant Instagram for copyright infringement. Plaintiff alleged that Instagram violates their exclusive display right by permitting third-party sites to embed the photographers’ Instagram content. The district court held that Instagram could not be liable for secondary infringement because embedding a photo does not “display a copy” of the underlying images under Perfect 10.The Ninth Circuit affirmed the district court’s dismissal of an action brought by two photographers under the Copyright Act alleging that Instagram, LLC, violated their exclusive display right by permitting third-party sites to embed the photographers’ Instagram content. The panel held that, under Perfect 10 v. Amazon, 508 F.3d 1146 (9th Cir. 2007), Instagram could not be liable for secondary infringement because embedding a photo does not "display a copy" of the underlying image. Perfect 10 set forth the “Server Test,” which provides that a copy of a photographic image is not displayed when it is not fixed in a computer’s memory. The panel held that Perfect 10 did not restrict the application of the Server Test to a specific type of website, such as search engine. Arguments that Perfect10 is inconsistent with the Copyright Act are foreclosed by Perfect 10 outside of an en banc proceeding. And Perfect 10 was not effectively overturned by American Broadcasting Co. v. Aereo, 573 U.S. 431 (2014), which held that a streaming provider infringed broadcasters’ exclusive right to public performance. View "ALEXIS HUNLEY, ET AL V. INSTAGRAM, LLC" on Justia Law

Trinity sued Covalent for infringement of patent claims relating to methods and systems for connecting users based on their answers to polling questions. The Federal Circuit affirmed the dismissal of the suit, concluding that the asserted patents do not claim patentable subject matter under 35 U.S.C. 101. Because Trinity did not identify a proposed claim construction or specific facts to be discovered, the district court was not required to conduct claim construction and fact discovery before analyzing the asserted claims. The claims are directed to the abstract idea of matching based on questioning. A human mind could review people’s answers to questions and identify matches based on those answers; the patent’s requirements that the abstract idea be performed on a “hand-held device” or that matches are “reviewable by swiping” does not alter the conclusion that the focus of the asserted claims remains directed to an abstract idea, not an improvement on technology. The claims do not provide an inventive concept by virtue of their use of multiple processors, match servers, unique identifications, or a match aggregator. View "Trinity Info Media, LLC v. Covalent, Inc." on Justia Law

SNIPR's patents, directed to methods of selectively killing bacteria using CRISPR gene editing, claim priority to a 2016 Patent Cooperation Treaty (PCT) Application. Because their effective filing dates are after March 2013, they are pure America Invents Act (AIA) patents, examined and issued under first-inventor-to-file patentability requirements. The Rockefeller Application is also directed to selectively killing bacteria. It claims priority to a 2014 PCT Application and a February 2013 U.S. Provisional Application; it is a pure pre-AIA application.The Patent Board declared an interference to determine which party was the first to invent, then identified Rockefeller as the senior party, with an accorded benefit date of February 2013, and SNIPR as the junior party, with a May 2016 accorded benefit date (the date for which the Board recognizes that a patent application provides a proper constructive reduction to practice of the invention under pre-AIA 35 U.S.C. 102(g)(1)). SNIPR unsuccessfully moved to terminate, arguing that the AIA eliminated interferences for AIA patents. The Board reasoned that pre-AIA patent claims must “comply with [pre-AIA] 35 U.S.C. 102(g),” which requires an interference. SNIPR had not filed any priority statement asserting an invention date earlier than Rockefeller’s earliest accorded benefit date and failed to overcome Rockefeller’s senior party status. The Board canceled the SNIPR Patents.The Federal Circuit reversed. Pure AIA patents may not be part of an interference. SNIPR’s pure AIA patents were examined and issued under the AIA’s first-inventor-to-file patentability requirements and cannot be canceled under the pre-AIA invention priority requirements. View "SNIPR Technologies Ltd. v. Rockefeller University" on Justia Law

Float‘N’Grill's patent is directed to a float designed to support a grill to facilitate a user grilling food while remaining in a body of water. The specification describes a single embodiment. The apparatus includes a float and a pair of grill supports, each of which has a base rod, and an “inverted substantially U-shaped upper support medially attached to a top surface of the base rod.” Each of the supports “includes a plurality of magnets disposed within the middle segment of the upper support of each” grill support. After the patent was issued, FNG, believing that it claimed less than it was entitled to claim in the original patent, filed a reissue application, seeking claims that did not contain the narrow “plurality of magnets” limitation; the claims more generically call for the removable securing of a grill to the float apparatus.The Patent Trial and Appeal Board affirmed an Examiner’s rejections under 35 U.S.C. 112(b) and 251 of the 13 claims of the reissue application. The Federal Circuit affirmed. The reissue claims in question do not cover “the invention disclosed in the original patent” as required by 35 U.S.C. 251. The court did not address the indefiniteness of those claims under section 112(b). View "In Re Float‘N’Grill LLC" on Justia Law

The Medtronic patents describe and claim a neurostimulation lead and a method for implanting and anchoring the lead. Axonics, having been sued by Medtronic for infringement, challenged various claims of the Medtronic patents for obviousness in inter partes reviews (IPRs) under 35 U.S.C. 311–319. In both IPRs, the Patent Trial and Appeal Board concluded that Axonics had failed to prove any of the challenged claims unpatentable.The Federal Circuit vacated and remanded, The Board erred in its obviousness analysis and the errors cannot be regarded as harmless. Even if the Board was correct to treat the Medtronic patents as limited in the problem they address to the sacral-nerve context, it committed a fundamental legal error in confining the motivation inquiry to whether a motivation would exist to make the proposed combination for use in the specific trigeminal-nerve context—to which the Medtronic patents are not limited. The Board was also incorrect in its view that “the relevant art is medical leads specifically for sacral neuromodulation,” as the Medtronic patents’ claims are not limited to the sacral-nerve context; the shared specification, properly read, is not so limited either. View "Axonics, Inc. v. Medtronics, Inc." on Justia Law

Using a patent directed to a method for sorting sperm cells according to specific DNA characteristics to preselect the gender of a domestic animal’s offspring, STGenetics, provided bull semen-processing services to ABS, which sells semen drawn from its own bulls, packaged in small tubes for use in artificial insemination.In 2014, ABS filed an antitrust lawsuit, alleging that ST was maintaining monopoly power for sexed semen processing. ST brought counterclaims for trade secret misappropriation, breach of contract, and patent infringement. ABS stipulated to direct infringement of three claims. A jury awarded ST $750,000 for past infringement and a royalty on future sales of sexed semen tubes sold by ABS. The Seventh Circuit affirmed the validity findings and issued a remand that did not concern the ongoing royalty.ST filed another infringement suit, which was consolidated with the remand proceedings, then learned that ABS had begun selling and licensing ST’s system to third parties. ST filed a third suit, asserting induced infringement (35 U.S.C. 271(b)). The district court dismissed the action, citing claim preclusion.The Federal Circuit reversed. An induced patent infringement claim brought at the time of the first trial would have been based on speculation; the parties stipulated to direct infringement and the question of inducement was not before the jury. The scope of ABS’s direct infringement allegations cannot reasonably be expanded to cover actions of third-party licensees using the technology to make their own tubes. View "Inguran, LLC v. ABS Global, Inc." on Justia Law

Medytox’s patent is directed to the use of an animal-protein-free botulinum toxin composition that exhibits a longer-lasting effect compared to an animal protein-containing botulinum toxin composition and purportedly can be used to treat both cosmetic and non-cosmetic conditions. Galderma requested post-grant review of claims 1–10, which the Patent Trial and Appeal Board granted. Medytox filed a non-contingent motion to amend seeking to cancel claims 1–10 and substitute claims 11–18 and requested that the Board issue a Preliminary Guidance. Galderma argued that the claims added new matter because the claims covered compounds with a 16-week responder rate between 50-100% but the specification only disclosed responder rates of up to 62%.Reversing its Preliminary Guidance, the Board found that the substitute claims impermissibly introduced new matter with the inclusion of the responder rate limitation and failed to meet the requirements for revised motions to amend; that the proposed substitute claims were unpatentable for a lack of written description; and that the full scope of the claims was not enabled.The Federal Circuit affirmed, upholding the Board’s claim construction of the responder rate limitation as a range. The Board provided adequate explanation for its enablement finding. The Board’s revision of its claim construction of the responder rate limitation made between its Preliminary Guidance and final decision was not arbitrary and capricious, depriving Medytox of a full and fair opportunity to litigate. View "Medytox, Inc. v. Galderma S.A." on Justia Law

In 2018, Spireon sought to register the mark FL FLEX, for “[e]lectronic devices for tracking the locations of mobile assets" such as trailers, cargo containers, and transportation equipment, using global positioning systems and cellular communication networks. An Examining Attorney approved the application. Flex opposed the registration, citing priority and the likelihood of confusion with Flex’s marks, FLEX, FLEX (stylized), and FLEX PULSE, registered in 2016-2017, for services including supply chain management services, transportation logistics services, and inventory management, and computers, computer software for use in supply chain management, logistics and operations management, quality control, inventory management, scheduling, and related services.The Trademark Trial and Appeal Board Board sustained Flex’s opposition. The Federal Circuit vacated. The Board erred in analyzing conceptual strength under the first DuPont factor, the similarity of the marks, rather than the sixth DuPont factor. The existence of third-party registrations on similar goods can bear on a mark’s conceptual strength. Third-party registrations containing an element that is common to both the opposer’s and the applicant’s marks can show that that element has “a normally understood and well-recognized descriptive or suggestive meaning.” Flex failed to show that the identical marks for identical goods were not used in the marketplace, but on remand, should be allowed to make such a showing. The Board also erred by comparing FL FLEX to FLEX PLUS rather than the relevant mark. View "Spireon, Inc. v. Flex Lrd." on Justia Law

In this copyright action involving ownership rights to the board game, "The Game of Life," the First Circuit affirmed the decision of the district court denying attorney's fees sought from the unsuccessful plaintiffs, holding that the district court did not err in denying fees and that this Court declines to award fees for the appeal.This case stemmed from a dispute between Rueben Klamer, a toy developer who came up with the initial concept of the game before it was introduced in 1960 by the Milton Bradley Company, and Bill Markham, a game designer that Klamer recruited to design and create the actual game prototype. Markham's successors-in-interest sued Klamer and other defendants seeking a declaration that they possessed "termination rights" under the 1976 Copyright Act. The district court granted judgment for Defendants but denied fees. Defendants appealed and moved for appellate attorney's fees. The First Circuit denied relief, holding (1) the district court did not err in denying fees; and (2) this Court declines to award fees for the appeal. View "Markham Concepts, Inc. v. Hasbro, Inc." on Justia Law

NuVasive, Inc. manufactures medical products and equipment to treat spinal diseases. In central Florida, NuVasive sold its products through an exclusive distribution agreement with Absolute Medical, LLC. Under the agreement, Absolute Medical employed independent-contractor sales representatives who marketed and sold NuVasive’s products to doctors and medical practices in the region. NuVasive sued Absolute Medical, Soufleris, AMS, and two of Absolute Medical’s sales representatives who began working for AMS for breaching the exclusive. The district court enforced a dispute resolution clause in the agreement, ordering NuVasive and Absolute Medical to arbitrate NuVasive’s breach-of-contract claim seeking money damages. Absolute Medical, Soufleris, AMS, and the sales representatives appealed the district court’s order granting NuVasive’s motion to vacate the arbitration panel’s final award.   The Eleventh Circuit affirmed. The court held that the district court did not err by equitably tolling the three-month filing deadline and considering NuVasive’s motion as timely. The court explained that the district court’s findings of fact were not clearly erroneous, and they supported the district court’s conclusion that NuVasive satisfied both prongs of the equitable tolling analysis. Defendants’ conduct presented extraordinary circumstances, and NuVasive was diligent once it learned that there was reason to pursue vacatur. Further, the court held that the district court did not err by vacating the final award. The district court correctly concluded that the fraud was materially related to that issue. Finally, the court held that the district court did not abuse its discretion by declining to direct a rehearing by the arbitration panel. View "Nuvasive, Inc. v. Absolute Medical, LLC, et al." on Justia Law