The United States has entered into law the Defend Trade Secrets Act, federal trade secrets legislation. The legislation creates a civil cause of action for the misappropriation of trade secrets.
The United States Supreme Court has granted cert in Apple v. Samsung on the question of the apportionment of the infringers profits for design infringement.
Today, the United States Court of Appeals for the Federal Circuit issued a decision in Re: Queen’s University relating to non-attorney patent agent privilege. The Court concluded that such privilege should be recognized.
A couple of items from last week that may be of interest:
- The U.S. Court of Appeals for the Federal Circuit, in an en banc decision, held in Lexmark v. Impression held that when a product is sold with limitations on re-sale or use restrictions, this restriction prevents exhaustion of patent rights with respect to downstream sales in breach of those restrictions.
- CIPPIC and the Centre for Intellectual Property Policy at McGill University have jointly sought amicus curae status in Eli Lilly’s NAFTA arbitration relating to the ‘promise doctrine’. They have published their application and their submissions.
- “Threading the biosimilar needle: Patent lawyers walk a fine line between dosage regimes and medical treatment“, an article by my colleagues, Geoff Mowatt and Nik Purcell, was published in The Lawyers Weekly.
- My article, “Summary Resolution of Intellectual Property Cases“, was published last week in Slaw. It focuses on the 2009 summary trial and summary judgment amendments to the Federal Courts Rules and their application to IP cases.
Chief Judge George King of the Central District of California issued a decision yesterday (PDF) in favour of plaintiffs who argued that Warner/Chappel Music had no right to collect royalties for “Happy Birthday To You” in the United States. After tracing the history of the song back to the 1890s, he concluded that Warner/Chappell Music’s predecessor never acquired the rights to the Happy Birthday lyrics from the purported authors. Continue reading Happy Birthday
Today, the United States Court of Appeals for the Federal Circuit issued its latest decision in the Apple v. Samsung patent dispute. In a split decision considering, among other things, the USSC’s eBay decision and the requirement of a ‘causal nexus’ between the alleged irreparable harm and the alleged infringement, the court vacated the lower court’s decision not to award a permanent injunction and remanded . Continue reading US Injunction
Here are two recent foreign decisions that may be of interest:
- Huawei v. ZTE – The European Court of Justice issued a decision on standard essential patents (SEPs) relating to LTE technology and whether seeking an injunction on patents with FRAND terms was an abuse of dominance, stating among other things, “in order to prevent an action for a prohibitory injunction or for the recall of products from being regarded as abusive, the proprietor of an SEP must comply with conditions which seek to ensure a fair balance between the interests concerned.”
- Amgen v. Sandoz – The US Court of Appeals for the Federal Circuit issued a divided decision on the ‘patent dance’ scheme for biosimilars in the United States holding that Sandoz was not required to disclose its application to the innovator but that notice could not be given until after receiving FDA approval, extending the period of exclusivity.
There were a couple of decisions from the last several days that may be of interest:
- AstraZeneca AB & Anor v KRKA dd Novo Mesto & Anor  EWCA Civ 484 – The Court of Appeal in the UK upheld the award of £27 million damages in favour of a generic for an interim injunction that was ultimately dissolved for esomeprazole.
- Garcia v. Google – The U.S. Court of Appeals for the Ninth Circuit, in an en banc decision (PDF), reversed its earlier panel decision and held that an actor in a controversial film was not entitled to a preliminary decision removing the film from YouTube on the basis that the law and facts did not clearly favour her claim to copyright and her showing of irreparable harm.
- Commil USA, LLC v. Cisco Systems, Inc. – The United States Supreme Court held that a defendant’s belief regarding patent invalidity is not a defence to an induced infringement claim.
Today, the United States Supreme Court heard oral arguments (link) on two patent cases:
- Commil USA v. Cisco Systems (13-896) relating to whether a defendant’s belief that a patent is invalid is a defence to induced infringement; and
- Kimble v. Marvel Enterprises (13-720) relating to whether the 1964 decision in Brulotte which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se“, should be overruled.
Today, the United States Supreme Court issued its decision in Teva v. Sandoz regarding the standard of review on claim construction. A majority held that rather than a de novo review, the Court of Appeals must review claim construction for ‘clear error’.