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.
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.
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.
Recent Blog Posts
- Judge Andrews Grants Defendant’s Motion to Dismiss Certain Patent Counterclaims after Finding the Subject Patents Claim Abstract Ideas By Memorandum Opinion entered by The Honorable Richard G. Andrews in D&M Holdings Inc. et al. v. Sonos, Inc., Civil Action No. 16-141-RGA (D.Del. April 18, 2017), the Court granted Defendant’s Motion to Dismiss Plaintiff’s First and Third Counterclaims for Patent Infringement after finding that the asserted claims in the patents that are the subject of those counterclaims are drawn to abstract ideas and do not provide an inventive concept. Specifically, the Court found that U.S. Patent No. 7,343,435 (“the... More
- What Does the FDA Regulate Anyway? The U.S. Food and Drug Administration (“FDA”) requests that consumers report any issues they experience with FDA-regulated products so that the FDA can further protect the public health. But it isn’t always clear which products the FDA regulates and which products it doesn’t. Generally, the FDA regulates the following product categories: certain foods, drugs, biologics, medical devices, electronic products that give off radiation, cosmetics, veterinary products, and tobacco products. Within each category is a number of products subject to the... More
- The Honorable Gregory M. Sleet to Take Senior Status On April 13, 2017, the United States Court for the District of Delaware announced that The Honorable Gregory M. Sleet will take senior status as of May 1, 2017. Judge Sleet has served as a District Judge for the District of Delaware since 1998. He served as Chief Judge for the District of Delaware from 2007 to 2014. The Court’s announcement notes that Judge Sleet has handled one of the busiest, most complex dockets in the nation during his nearly 19 years on the... More
- FTC Closing Letters Show Continued Vigilance on “Made in USA” and Leniency for Cooperation Last week the FTC issued three letters closing three separate investigations of advertising practices by three different businesses. The letters are notable for the two common themes present in each. First, each investigation centered on allegedly unsupported “Made in the USA” claims, demonstrating the FTC’s continued vigilance on this issue–a point that has been the topic of past posts. Second, each investigation was closed without further action due to, at least in part, the advertisers’ willingness to cooperate and take... More
- Judge Sleet Grants Defendant’s Motion to Dismiss Induced Infringement Claims But Denies Motion as to Direct Infringement Claims By Memorandum Opinion entered by The Honorable Gregory M. Sleet in IP Communication Solutions, LLC v. Viber Media (USA) Inc., Civil Action No. 16-134-GMS (D.Del. April 5, 2017), the Court granted in part Defendant’s motion to dismiss complaint for failure to state a claim. Specifically, the Court granted Defendant’s motion to dismiss as to Plaintiff’s claim of induced infringement but denied Defendant’s motion as to Plaintiff’s claim of direct infringement. Id. at *7 and 9. In denying Defendant’s motion to dismiss... More
- Tips for non-disclosure agreements with Chinese companies In a previous post on IP Spotlight, I provided a few tips for negotiating non-disclosure agreements. In the post, I noted that a “form” NDA should only be considered a starting point. The parties should modify it as appropriate to fit the business situation and the type of information that is being disclosed. Here’s an additional tip if the other party to the NDA is not a U.S. company: if the other party breaches the agreement, you may be able sue that... More
- When is a Price Not Just a Price But a Matter of Speech Protected by the First Amendment? A New York case decided this week by the U.S. Supreme Court involving a state prohibition on credit card surcharge fees would not, at first blush, seem to involve “speech,” let alone “speech” that needs to be protected by the First Amendment. Indeed, a credit card surcharge fee – such as, for example, a nondescript warning stating “3% added for credit cards” – hardly seems to be in the same league as The Pentagon Papers, or Fanny Hill, or even... More
- Beware trademark renewal notice scams At some point in time, most trademark registrants will receive an official-looking invoice from a so-called “trademark registration service” that purports to require payment of a fee to maintain the trademark registration. My colleague Erika Koster recently published an alert about scams like this. For Erika’s article on the Fox Rothschild “Above the Fold” blog, click here. In the meantime, if you receive a trademark renewal notice and it is not from the law firm that is helping you apply for or maintain the... More
- Federal Circuit finds credit reporting patent ineligible; calls it the “height of abstraction” A recent Federal Circuit decision illustrates the high eligibility hurdles that fintech software patents continue to face in view of the Supreme Court’s 2014 Alice v CLS Bank decision. In Clarilogic, Inc. v. FormFree Holdings Corp. (Fed. Cir. Mar. 15, 2017), the court addressed the eligibility of U.S. Patent 8,762,243, which was directed to methods for electronic account certification and credit reporting. The representative claim of the patent was: 1. A computer-implemented method for providing certified financial data indicating financial risk about an individual, comprising: (a)... More
- SCOTUS: No laches in patent infringement cases; six-year limit on damages is the rule A recent Supreme Court decision may make it easier for patent holders to assert older patents, as the decision significantly restricts the availability of laches (i.e., unreasonable delay) as a defense to a patent infringement claim. The doctrine of laches allows a court to deny a claim if the plaintiff delayed filing the suit and the delay was unreasonable and prejudicial. The Patent Act also includes a six-year limit on the recovery of damages for patent infringement activities. Until now, most courts interpreted these two... More
- Supreme Court: useful articles such as clothing can include copyrightable elements A new Supreme Court decision helps to clarify the extent to which copyright law can protect design elements of a useful article, such as an article of clothing. The Copyright Act states that “useful articles” are generally not eligible for copyright protection. Because an article of clothing is useful, many courts have limited copyright protection for clothing to elements such as fabric prints. However, in Star Athletica, L.L.C. v. Varsity Brands, Inc., the Court ruled that a design element incorporated into clothing (or... More
- The FTC Takes “Made in the USA” Advertising Claims Seriously Copyright: lifeking / 123RF Stock Photo In the last two months, the Federal Trade Commission (“FTC”) has reached two settlements related to complaints it initiated against companies regarding “Made in the USA” advertising claims. First, in February, the FTC announced that it had reached a settlement with a Georgia-based water filtration systems company named iSpring Water Systems, LLC. According to the FTC, iSpring advertised its water filtration systems on its website and through third parties as “Built in USA” (and other similar claims). The FTC found... More
- Judge Andrews Denies Defendants’ Motion for Judgment on the Pleadings Asserting Lack of Patent-Eligible Subject Matter By Memorandum Opinion entered by The Honorable Richard G. Andrews in Sonos, Inc. v. D&M Holdings Inc. et al., Civil Action No. 14-1330-RGA (D.Del. March 13, 2017), the Court denied Defendants’ Motion for Partial Judgment on the Pleadings for Lack of Patent-Eligible Subject Matter under Section 101 of the Patent Act, 35 U.S.C. § 101. The patents at issue in the motion were U.S. Patent Nos. 8,588,949 (“the ‘949 patent”), 7,571,014 (“the ‘014 patent”), 9,202,509 (“the ‘509 patent”), and 9,219,959... More
- Can a patent expire before it issues? In certain situations, yes. Ordinarily, the term of a patent begins on the grant date and ends twenty years after the filing date of the patent. If the patent claims priority to an earlier-filed nonprovisional patent application, then the twenty-year term is calculated from the filing date of the earlier-filed application. However, an unusual situation can arise if a patent claims priority to a patent application that was filed more than twenty years ago. A recent court decision from the Eastern District... More
- Chief Judge Stark Grants Defendants’ Motion for Summary Judgment of Non-Infringement in ANDA Action By Memorandum Opinion entered by The Honorable Leonard P. Stark in Reckitt Benckiser LLC v. Aurobindo Pharma Ltd., Civil Action No. 14-1203-LPS (D.Del. March 6, 2017), the Court granted Defendants’ motion for summary judgment of non-infringement of the asserted claims of U.S. Patent No. 6,955,821 (“the ‘821 patent”) and U.S. Patent No. 7,838,032 (“the ‘032 patent”) with respect to Defendants’ proposed generic version of Mucinex® DM, an extended-release tablet that contains dextromethorphan hydrobromide and guaifenesin. The claim limitations of the... More