Above the Fold

The increasingly scrutinized area of advertising and marketing has a wealth of legal hurdles. When creating content, advertising professionals and companies often find themselves in hot water with various regulatory agencies, such as the Federal Trade Commission. In this blog, our team of seasoned media and trademark attorneys address emerging trends and issues in this complex area.
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Delaware Intellectual Property Litigation Blog

Wilmington attorney Gregory B. Williams explores the decisions issued by the U.S. District Court of Delaware in the areas of antitrust and intellectual property law.
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IP Spotlight Blog

Intellectual property is often the lifeblood of a company. As an experienced IP and registered patent attorney, Jim Singer keeps you up-to-date with the legal and business aspects of intellectual property and other intangible assets on his IP Spotlight blog. Covering topics such as licensing, due diligence, acquisition, compliance and risk management associated with patents, trademarks, copyrights and trade secrets, IP Spotlight provides insight, commentary and tips regarding recent legislation and developments in the industry.
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Recent Blog Posts

  • Chief Judge Stark Denies Motion to Stay in Kraft v. Heartland Infringement Action Pending Ruling on Venue by U.S. Supreme Court By Memorandum Order entered by The Honorable Leonard P. Stark in Kraft Foods Group Brands LLC v. TC Heartland, LLC et al., Civil Action No. 14-28-LPS, the Court denied the Heartland defendants’ motion to stay all case-dispositive matters in the patent infringement action, including dispositive pre-trial rulings and the trial, pending the ruling by the U.S. Supreme Court on the venue issue before it through its granting of the Heartland defendants’ petition for a writ of certiorari on December 14,... More
  • Anticipated Oral Argument Finally Heard This morning, the United States Supreme Court heard the long-anticipated oral argument in the Lee v. Tam trademark dispute. The issue in the case, as reported on the SCOTUS blog, is as follows: “Whether the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a), which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it ‘[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or... More
  • DOJ and FTC release new Antitrust Guidelines for Licensing of Intellectual Property Updating policies that had been on the books for more than two decades, the U.S. Department of Justice and the Federal Trade Commission recently issued new Antitrust Guidelines for the Licensing of Intellectual Property. The new Guidelines include several updates that reflect changes in the law since the 1995 guidelines were issued. For example, the new Guidelines now permit intellectual property license agreements to explicitly include provisions on resale price without being per se illegal. (Instead, price restraints in licensing agreements will now be analyzed... More
  • Chief Judge Stark Grants Defendants’ Motion for Partial Summary Judgment of No Willful Infringement By Memorandum Opinion entered by The Honorable Leonard P. Stark in Vehicle IP, LLC v. AT&T Mobility LLC, et al., Civil Action No. 09-1007-LPS (D.Del., December 30, 2016), the Court granted defendants Telecommunication Systems, Inc., Networks in Motion, Inc., and Cellco Partnership (collectively, the “TCS Defendants”) motion for partial summary judgment of no willful infringement and denied a number of other motions to exclude and motions for summary judgment or partial summary judgment filed by the parties. In evaluating the TCS... More
  • Federal Circuit: obviousness requires a clear and explicit explanation The Federal Circuit recently vacated a Patent Trial and Appeals Board (PTAB) decision that found obvious several claims of a patent application relating to methods for re-configuring icons on a touch-sensitive display. In In re Van Os (Fed. Cir. Jan. 3, 2017), the court’s decision focused on the PTAB’s failure to provide sufficient reasoning for the rejection, rather than the question of whether or not the claims were in fact obvious. The claims related to a user interface for a touch-sensitive display that would enter... More
  • How long does it take for the USPTO to issue a patent or register a trademark? (2016 edition) At the end of each fiscal year, the USPTO releases a Performance and Accountability Report, with statistics about patent and trademark allowance rates, average pendency, and other details. The USPTO recently released its Performance and Accountability Report for Fiscal Year 2016. This means that it’s time for IP Spotlight’s annual review of the question:  “how long does it take to receive a patent or trademark registration?” To answer that question, here are a few highlights from the USPTO’s FY 2016 report: Patents:  The USPTO continued a five-year trend of... More
  • Happy Holidays! Happy Holidays!... More
  • FTC’s Order on “All Natural” Advertising Copyright: farakos / 123RF Stock Photo Earlier this month, the Federal Trade Commission (“FTC”) issued a decision against California Naturel, Inc. related to its advertising of “all natural” sunscreen on both its website and the product packaging itself. On its website, California Naturel was not only advertising its sunscreen as “all natural” but was describing the sunscreen as containing “only the purest, most luxurious and effective ingredients found in nature.” The FTC found that this advertising conveyed that California Naturel’s sunscreen... More
  • Judge Robinson Grants Takeda’s Motion to Alter or Amend Judgment and Resurrects Previously Dismissed Patent Infringement Action By Memorandum Order entered by The Honorable Sue L. Robinson in Takeda Pharmaceuticals U.S.A., Inc. v. West-Ward Pharmaceutical Corp., Civil Action No. 14-1268-SLR (D.Del., December 14, 2016), the Court granted plaintiff Takeda Pharmaceuticals U.S.A., Inc.’s motion filed pursuant to Rules 59(e) and 15(a) of the Federal Rules of Civil Procedure seeking to (1) reopen the judgment of dismissal of the action previously entered under Rule 12(b)(6) for failure to state a claim and (2) to amend the complaint. In evaluating Takeda’s... More
  • Who should be listed as inventors in a patent application? 49458832 – inventor This is a question that all patent applicants must answer before filing a patent application. However, applicants often answer the question without fully understanding the criteria for “inventorship.” Applicants often simply presume that the inventors listed on an invention disclosure, or the authors of a publication, will be the inventors. This is not necessarily the case, since inventors of an invention and the authors of a document can be (and often are) different. The consequences of failing to correctly identify the... More
  • The First Amendment and Trademark Licensing at Public Universities: NORML Rules Apply Next week (12/14/2016), in a marble tiled courtroom in frosty St. Paul, Minnesota, a panel of judges of the Eighth Circuit Court of Appeals will wrestle with a question that is both as new as the campaign to legalize marijuana and as old as the First Amendment: When can a public university protect its brand, and its valuable trademarks, from being associated with viewpoints or messages that it rejects? In the case of Gerlich v. Leath (8th Cir., No. 16-1518), a... More
  • What Happens in Vegas Stays in…Albany, NY? Trademark Office Rejects New NHL Team’s Nickname as a Trademark The newest NHL franchise, set to debut in Las Vegas next year, might be considering other names for the team after the United States Patent and Trademark Office (USPTO) rejected the hockey team’s proposed trademark, “VEGAS GOLDEN KNIGHTS”. In an Office Action issued this week (Dec. 7, 2016), an examining attorney preliminary rejected the mark “VEGAS GOLDEN KNIGHTS” because it was too similar and likely to be confused with the mark used by the College of Saint Rose, “GOLDEN KNIGHTS OF... More
  • Judge Andrews Construes Two Phrases in Dispute in Patent-in-Suit and Finds Dependent Claim Invalid Under 35 U.S.C. § 112 By Memorandum Opinion entered by The Honorable Richard G. Andrews in Amgen Inc. v. Hospira, Inc., Civil Action No. 15-839-RGA (D.Del., November 30, 2016), the Court issued its claim constructions for the two phrases in dispute in claims 1 and 8 of U.S. Patent No. 5,856,298 (“the ‘298 patent”) and found that claim 8 of the ‘298 patent is invalid under 35 U.S.C. § 112 because it is a dependent claim that contradicts a limitation of the claim from which... More
  • It’s December 1: time to update your DMCA agent designation 14240670 – copyright If you operate a website that accepts user-generated content, it’s time to contact the Copyright Office. Many online service providers (OSPs) accept user-generated content. Examples include e-commerce websites that accept product reviews, news sites that publish user comments on posted articles, social media sites that permit users to share photos or videos, and even blogs who post comments from other users. It can be very difficult for an OSP to determine whether user-generated content was created by the user who posted it, or whether... More
  • What’s in a Name? Not a Trademark Registration, At Least Christopher P. Beall writes: Although a rose “by any other name would smell as sweet,” (Romeo & Juliet, Act II, sc. 2, ln 48), there just aren’t any trademark registrations to be had in a person’s name, at least not without the person’s written consent.  So the U.S. Patent and Trademark Office recently reminded a trademark applicant who had applied for a trademark registration for the mark “LOVE TRUMPS HATE,” in connection with clothing. Copyright: silvia / 123RF Stock Photo In an Office... More