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Fish & Richardson Litigation Blog

Welcome to the Fish & Richardson blog, a community site where our intellectual property, commercial, and white collar litigators share information on nationwide litigation developments and trends. Join the conversation!

Look who’s striking it rich in the oil fields: Energy company pay practices excite wage & hour lawyers and Department of Labor

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For the past several years, the nation’s oil and gas industry has boomed, creating multitudes of new millionaires. oil field200pxThe growing wealth achieved by the industry has attracted some new actors with designs on grabbing their own piece of the oil/gas money pie—but these actors aren’t focused on what’s in the ground, but rather, who’s taking it out of the ground.  Specifically, plaintiffs’ wage and hour lawyers, the Department of Labor (“DOL”), and other regulators are applying ever-increasing scrutiny to the use by oil and gas companies of independent contractors and day rates to pay laborers.

While it may seem desirable to use independent contractors to eliminate overtime issues, our experience has taught us that this practice carries big risks. Continue Reading »

AIA revisions to false marking statute not unconstitutional

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Fed. Cir. affirms dismissal of qui tam false marking case, filed before AIA enactment, for lack of standing.

Stauffer v. Brooks Brothers Grp., Inc., ___F.3d ___ (Fed. Cir. July 10, 2014) (Lourie, SCHALL, Moore) (S.D.N.Y.: Stein) (1 of 5 stars)

Mr. Stauffer argued for unconstitutionality of the AIA provisions permitting marking with expired patent numbers, eliminating the false-marking statute’s qui tam provision, and doing so for all pending cases.  He had standing under Lujan to present such an appeal: Continue Reading »

Recent decision underscores claim construction uncertainty at Federal Circuit

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The Federal Circuit’s recent decision in Hill-Rom Services, Inc. v. Stryker Corp. shows the continued existence of diverging claim construction philosophies at the Court.  (The Hill-Rom opinion is nicely summarized here by my colleagues, Craig Countryman and Joanna Fuller.)  The Court tried to harmonize its then-competing claim construction approaches in the 2005 en banc Phillips decision, but many believe it was unsuccessful.  And, although the Court’s composition has evolved significantly in recent years, as Hill-Rom reveals, continued uncertainty remains.

“Proceduralist” v. “Holistic”

By the early 2000s, most Federal Circuit’s claim construction decisions could be categorized as either proceduralist or holistic.  “Proceduralist” constructions are those where the “primary focus [is] on ‘ordinary meaning’ of claim language; [finding the] specification only useful if it provides a clear definition . . . .’” Polk Wagner & Lee Petheridge, Did Phillips Change Anything?  Empirical Analysis of the Federal Circuits Claim Construction Jurisprudence (Oct. 27, 2006).

The “holistic” approach, on the other hand, Continue Reading »

Federal Circuit orders district court to stay litigation pending CBM review

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In interlocutory order, Fed. Cir. reverses denial of defendants’ joint motion to stay patent case pending CBM review, and remands with instructions to grant the motion.

The Fed. Cir. first declined to determine the applicable standard of review.  Reversal was warranted even under VirtualAgility’s abuse of discretion standard.

VirtualAgility Inc. v. Salesforce.com, Inc., ___F.3d ___ (Fed. Cir. July 10, 2014) (Newman (dissenting), MOORE, Chen) (E.D. Tex.: Gilstrap) (5 of 5 stars) Continue Reading »

A new bonanza for trade secret plaintiffs in Texas: Eastern District of Texas grants future royalties in place of a permanent injunction

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Permanent injunctions have long been difficult to obtain in patent infringement cases involving parties who are not competitors.  Law gavel on a stack of American money.In lieu of an injunction, many courts impose the payment of future royalties. Given the subject matter similarity between cases involving patent infringement and trade secret theft, one might wonder whether Texas courts will permit/require a similar remedy-scheme in cases alleging trade secret theft.  That is, may a trade secret plaintiff obtain the remedy of future royalties in lieu of a permanent injunction? Continue Reading »

No disclosure of algorithm for performing claimed function renders MPF limitation indefinite

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Fed. Cir. affirms summary judgment of no infringement and invalidity for indefiniteness in favor of Yahoo! and affirms summary judgment of infringement and no indefiniteness on Yahoo’s counterclaims.

Augme Technologies, Inc. v. Yahoo! Inc., ___ F.___ (Fed. Cir. Jun. 20, 2014) (MOORE, Schall, Reyna) (N.D. Cal., Spero) (2 of 5 stars) Continue Reading »

TTAB blitzes football powerhouses

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First the Redskins, and now the Giants.  The New York Football Giants, Inc. (“Giants”) applied to register their nickname G-MEN for “Shirts; T-shirts; Tops” in Class 25.GMEN NY Giants-100px   GMAN Sport-100pxThe Patent and Trademark Office (“PTO”) refused registration of the G-MEN mark based on a likelihood of confusion under Section 2(d) of the Trademark Act with the prior registered mark GMAN SPORT and Design for “Boxer shorts; Socks; T-shirts; Tank tops,” also in Class 25.  The Giants threw out the red flag and challenged the PTO’s ruling to the Trademark Trial and Appeal Board (“TTAB”), arguing that its G-MEN mark is so famous for its football team that, when applied to football related merchandise, it has a unique and singular meaning for a distinct set of products that will avoid a likelihood of confusion with the prior registered GMAN SPORT and Design mark.  In assessing likelihood of confusion, the Giants argued that the PTO should not limit its analysis to the marks and identifications of goods claimed in the application, but rather must take into account “marketplace realities” even if those marketplace realities are not reflected in the contested application.  Continue Reading »

You wore THAT to work???—New EEOC guidelines protect employee attire and grooming choices made on basis of religious beliefs

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The EEOC recently published guidelines describing how federal antidiscrimination laws apply to religious garb and grooming in the workplace.  Close up of long beard and mustache manWhile attire and grooming choices are often a matter of personal preference, employers should be aware that some forms of attire and grooming, including wearing skirts, long hair, dreadlocks, tattoos, facial hair, headcoverings, jewelry, and even carrying knives can be religious practices protected under Title VII.

The guidelines make clear that the definition of a religious practice is very broad and includes “religious beliefs that are new, uncommon, not a part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others.”  Continue Reading »

The future of attorneys’ fee awards in patent cases

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When Congress next addresses patent litigation legislation, it will need to consider whether the Octane Fitness (see what we wrote here and here) decision in April 2014 has adequately overcome the perceived obstacles to awarding attorneys’ fees under 35 U.S.C. § 285 in patent cases. If a need for further change is perceived, we suggest that Congress consider conforming Section 285 to the statutory language of the attorneys’ fee section of the Copyright Act and endorsing that section’s interpretation by the Courts. That section simply states that “the court may also award reasonable attorney’s fee to the prevailing party as part of the costs.” 17 U.S.C. § 505. See Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). Continue Reading »