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Jason Rantanen
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By Jason Rantanen As I mentioned a few weeks ago, next week The Sedona Conference will be presenting a major webinar entitled Patent Litigation Best Practices: A Matter for Congress or for Bench and Bar? This webinar will discuss discuss... Continue reading
Posted Jan 17, 2014 at Patent Law Blog (Patently-O)
By Jason Rantanen Nazomi Communications, Inc. v. Nokia Corp. (Fed. Cir. 2014) Download 13-1165.Opinion.1-8-2014.1 Panel: Lourie (concurring), Dyk (author), Wallach Nazomi is a small software and semiconductor development company that sued a set of large technology companies for patent infringement... Continue reading
Posted Jan 16, 2014 at Patent Law Blog (Patently-O)
By: Michael Risch, Professor of Law, Villanova University School of Law Read the whole draft here, forthcoming in the George Mason L. Rev. It is about half the length of a typical law review article, so I call it an... Continue reading
Posted Jan 14, 2014 at Patent Law Blog (Patently-O)
By Sarah Burstein, Associate Professor of Law at the University of Oklahoma College of Law Pacific Coast Marine Windshields, Ltd. v. Malibu Boats, LLC (Fed. Cir. 2014) Panel: Dyk (author), Chen, Mayer In this case, the Federal Circuit determined—as a... Continue reading
Posted Jan 13, 2014 at Patent Law Blog (Patently-O)
Guest Post by Jason J. Du Mont, Microsoft IP Fellow at the Indiana University Maurer School of Law and Mark D. Janis, Robert A. Lucas Chair of Law at the Indiana University Maurer School of Law. In Pacific Coast Marine... Continue reading
Posted Jan 13, 2014 at Patent Law Blog (Patently-O)
By Jason Rantanen First, thank you for all the terrific comments I received in response to the Top 10 Patent Cases post. There were some great ideas there and after substantial reflection I decided that my final list this year... Continue reading
Posted Dec 19, 2013 at Patent Law Blog (Patently-O)
By Jason Rantanen I teach the Introduction to Intellectual Property course each spring here at Iowa. Because this is a survey course that covers multiple areas of law that themselves each can be covered in an intermediate-level course, I always... Continue reading
Posted Dec 18, 2013 at Patent Law Blog (Patently-O)
By Jason Rantanen CBT Flint Partners, LLC v. Return Path, Inc. (Fed. Cir. 2013) Panel: Dyk, O'Malley (concurring-in-part and dissenting-in-part), Taranto (author) This is an important pair of opinions that anyone interested in the fee-shifting proposals currently pending before Congress... Continue reading
Posted Dec 17, 2013 at Patent Law Blog (Patently-O)
By Jason Rantanen The Ohio Willow Wood Company v. Alps South, LLC (Fed. Cir. 2013) Download 12-1642.Opinion.11-13-2013.1 Panel: Dyk, Bryson, and Reyna (author) There are three main isues addressed in this opinion: 1) Collateral Estoppel based on similar claims in... Continue reading
Posted Nov 19, 2013 at Patent Law Blog (Patently-O)
Guest Post by Michael Risch, Professor of Law, Villanova University School of Law Read the whole draft here, forthcoming in the Stanford Tech. L. Rev. Before I was a patent guy, I was a copyright guy, and I did much... Continue reading
Posted Nov 17, 2013 at Patent Law Blog (Patently-O)
Guest Post by Christopher A. Cotropia, Professor of Law and Austin Owen Research Fellow, University of Richmond School of Law; Jay P. Kesan, Professor and H. Ross & Helen Workman Research Scholar, University of Illinois College of Law; and David... Continue reading
Posted Nov 12, 2013 at Patent Law Blog (Patently-O)
By Jason Rantanen Lee Petherbridge and I recently completed a draft of our empirical study of Federal Circuit doctrinal uniformity, a topic that ties in nicely with the recent debate over the Federal Circuit's exclusive jurisdiction over in patent cases.... Continue reading
Posted Nov 11, 2013 at Patent Law Blog (Patently-O)
Guest Post by Megan M. La Belle, Assistant Professor at Catholic University of America, Columbus School of Law Yesterday, the Supreme Court heard oral argument in Medtronic v. Boston Scientific, the first patent case of the term. The issue before... Continue reading
Posted Nov 6, 2013 at Patent Law Blog (Patently-O)
By Jason Rantanen Intellect Wireless, Inc. v. HTC Corp. (Fed. Cir. 2013) Download 12-1658.Opinion.10-7-2013.1 Panel: Prost, Moore (author), O'Malley This opinion is notable because it involves one of the rare instances post-Therasense in which the Federal Circuit concludes that inequitable... Continue reading
Posted Oct 27, 2013 at Patent Law Blog (Patently-O)
Guest post by Jorge L. Contreras. Prof. Contreras is an Associate Professor of Law at American University Washington College of Law. As part of the global smartphone litigation between Apple and Samsung, the European Commission has been investigating Samsung’s use... Continue reading
Posted Oct 20, 2013 at Patent Law Blog (Patently-O)
By Jason Rantanen This afternoon my frequent collaborator Lee Petherbridge will be presenting Unenforceability (which we wrote with Polk Wagner) at the Houston Intellectual Property Law Association's annual IP Institute. As we were talking about the presentation, our conversation turned... Continue reading
Posted Sep 26, 2013 at Patent Law Blog (Patently-O)
By Jason Rantanen Last fall, I presented a set of data on inequitable conduct pleadings at the America Invents Act: One Year Later conference at the Indiana University Mauer School of Law. That data revealed two significant findings: first, that... Continue reading
Posted Sep 20, 2013 at Patent Law Blog (Patently-O)
Guest Post by Jonas Anderson, Assistant Professor at American University, Washington College of Law. This morning, the Federal Circuit sat en banc in the case of Lighting Ballast Control v. Philips. The case is the latest and most significant challenge... Continue reading
Posted Sep 13, 2013 at Patent Law Blog (Patently-O)
These are fun issues. If you're interested in learning more, I'd suggest reading Warner-Lambert v. John J. Reynolds, 178 F.Supp. 655 (S.D.N.Y), and reading a bit about the differences between the Restatement approach to trade secrets and the UTSA approach. But under the hypo as you initially described it, it would be very difficult to argue that the "secret" wasn't destroyed by the disclosure, which rendered it no longer a trade secret - regardless of whether one was applying the Restatement approach or the UTSA approach. I could think of ways to do it, but they would all involve modifying the hypo (for example, to involve stuff that wasn't disclosed in the patent, or changing the hypo to refer to an unpublished application rather than a published application/patent, or to have the parties enter into the contract before the secret was destroyed by disclosure).
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Guest Post By Sarah Burstein, Associate Professor of Law at the University of Oklahoma College of Law High Point Design LLC v. Buyer’s Direct, Inc. (Fed. Cir. Sept. 11, 2013) Download High Point v Buyers Direct Panel: Schall (author), O’Malley,... Continue reading
Posted Sep 12, 2013 at Patent Law Blog (Patently-O)
That's a great question, and one for which I'm not aware of a clear answer. Would be a great issue for someone to look into and write about, though. There hasn't been much (any?) scholarship on patent preemption for at least the last decade.
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Just as with misappropriation or conversion of intangibles claims, breach of an implied contract and unjust enrichment claims based on creative intangibles are rife with preemption issues. Often copyright is used as the main vehicle for preemption, since copyright has an express preemption provision in the statute. But there's also a well-established rule of implied field preemption based on patent law. Here's one excerpt from Bonito Boats v. Thunder Craft Boats (1989) (which held that a Florida law relating to boat hull designs was preempted): “At the heart of Sears and Compco is the conclusion that the efficient operation of the federal patent system depends upon substantially free trade in publicly known, unpatented design and utilitarian conceptions. … While … our decisions since Sears have taken a decidedly less rigid view of the scope of federal preemption under the patent laws, … we believe that the Sears Court correctly concluded that the States may not offer patent-like protection to intellectual creations which would otherwise remain unprotected as a matter of federal law. Both the novelty and the nonobviousness requirements of federal patent law are grounded in the notion that concepts within the public grasp, or those so obvious that they readily could be, are the tools of creation available to all. They provide the baseline of free competition upon which the patent system’s incentive to creative effort depends. A state law that substantially interferes with the enjoyment of an unpatented utilitarian or design conception which has been freely disclosed by its author to the public at large impermissibly contravenes the ultimate goal of public disclosure and use which is the centerpiece of federal patent policy. Moreover, through the creation of patent-like rights, the States could essentially redirect inventive efforts away from the careful criteria of patentability developed by Congress over the last 200 years. ” Of course, patent preemption probably won't block all of the plaintiff's claims here. For example, Heinz's alleged use of the marketing materials would presumably not be preempted by patent law (there's still copyright preemption however). But it would seem to block claiming state law protections over intangibles such as the idea of a dual-function condiment package (assuming that there is no secrecy - trade secret claims are not preempted under Kewanee Oil v. Bicron).
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The plaintiff here does not appear to be making any claims of trade secret misappropriation. If there were, the preemption issue on those claims would be much simpler (Kewanee Oil v. Bicron largely settled that issue).
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By Jason Rantanen The primary issue in this case is whether the Federal Circuit has subject matter jurisdiction over the appeal. On that issue, the court's analysis of the arguments presented by the parties is solid. However, in addition to... Continue reading
Posted Sep 10, 2013 at Patent Law Blog (Patently-O)
By Jason Rantanen Accenture Global Services, GMBH v. Guidewire Software, Inc. (Fed. Cir. 2013) Download Accenture v. Guidewire Panel: Rader (dissenting), Lourie (author), Reyna It is difficult to think of an issue that has more deeply divided the Federal Circuit... Continue reading
Posted Sep 5, 2013 at Patent Law Blog (Patently-O)