IP News
July 31, 2007
Highlights of the latest intellectual property news from around the country.
What Proves That a Mark Has Become Generic?
July 31, 2007
Generic names for goods and services may not be registered as trademarks under the Lanham Act, and registered marks that have become the generic name for the goods or services may be cancelled at any time (15 U.S.C. §14(3)). Words that were originally trademarks designating the source for particular products, such as 'escalator' and 'thermos,' have lost that status and become the generic name for all such products. Companies whose marks are in danger of losing their distinctiveness as source indicators may take steps to raise the public's consciousness and prevent their marks from becoming generic. One such well-known advertising campaign is run by Xerox Corporation to educate the public to use a 'photocopying machine' or 'to photocopy' in place of the registered trademark XEROX.
What's Obvious From KSR Int'l Co. v. Teleflex?
July 31, 2007
Since the Supreme Court's April 30, 2007 decision in <i>KSR Int'l Co. v. Teleflex Inc. et al.</i>, 127 S.Ct. 1727 (2007), the Court of Appeals for the Federal Circuit has affirmed one district court's determination of obviousness, reversed another, and denied one rehearing <i>en banc</i> concerning an obviousness determination. This second installment of our two-part series discusses three cases decided after <i>KSR</i> and examines the implications of <i>KSR</i> in the context of these decisions.
Perfect 10 v. Google: Ninth Circuit Sanctions Web Site Framing, Online Thumbnail Displays
July 31, 2007
How fast do things change in 'Internet time'? That was in substance one of the questions posed in a recent Ninth Circuit decision in <i>Perfect 10 v. Google</i>, No. 06-55405, 2007 U.S. App. Lexis 11420 (9th Cir. May 16, 2007), which considered, <i>inter alia</i>, whether a less-than-four-year-old fair use precedent validating an image search engine had been overtaken by subsequent events. Not so fast, answered the Ninth Circuit in a lengthy decision destined to provide important guidance to online enterprises on a range of Internet copyright issues.
Internet Service Provider Liability
July 30, 2007
The liability of an Internet service provider is one of the topics that has been vigorously disputed and discussed in Germany. And given the lack of borders in cyberspace, the outcome could impact e-commerce vendors in the United States and elsewhere.
IP News
June 28, 2007
Highlights of the latest intellectual property news from around the country.
Protection of Fragrances
June 28, 2007
The perfume industry is a wealthy and profitable one, generating an ever-increasing turnover worldwide. However, as do all successful industries, it attracts numerous counterfeiters and tempts indelicate competitors to copy successful perfumes. Although perfumes are expensive and sensitive products whose development requires time and sizeable investment, they are, unfortunately, hard to protect against unauthorized copies.
KSR Int'l Co. v. Teleflex Inc. et al.: Supreme Court Clarifies Obviousness
June 28, 2007
Before the Supreme Court's April 30, 2007 decision in <i>KSR Int'l Co. v. Teleflex Inc. et al.</i>, 127 S.Ct. 1727 (2007) virtually all patent attorneys were on the edge of their seats. The decision was a clear indication that the Supreme Court disfavored the current state of the law that had been developed by the Federal Circuit for determining whether a patent is invalid for obviousness under 35 U.S.C. §103. The Supreme Court pointed to numerous errors in the Federal Circuit decision and characterized as 'rigid,' 'formalistic,' 'narrow,' 'constricted,' and 'flaw[ed]' the Federal Circuit's requirement that there be proof the claimed combination of elements was arrived at due to a teaching, suggestion, or motivation to combine features from prior art references. <i>Id.</i> at 1739, 1741-42. Instead, the Supreme Court imposed a more flexible approach that sought to emphasize its earlier decisions on obviousness over tests the Federal Circuit had developed to apply the law set forth in those decisions.
Microsoft v. AT&T: The Supreme Court Grapples with How to Treat Software under '271(f) of the Patent Act
June 28, 2007
On April 30, 2007, the Supreme Court handed down its decision in <i>Microsoft Corp. v. AT&T Corp.</i>, No. 05-1056, 127 S. Ct. 1746 (2007). The <i>Microsoft</i> decision addressed the scope of §271(f) of the Patent Act, 35 U.S.C. §271(f), which provides that it is an act of infringement to 'supply' the 'components' of a patented invention from the United States for combination outside the United States.
