Virginia IP Law > Troutman Sanders LLP

#TBT Patents: Overly Revealing Fashionista Fail

No, the person in front of you has not split her pants, but what she’s wearing might have infringed this patent (had it not expired).  Granted today back in 2002, the patent is titled, “GARMENT HAVING A BUTTOCKS CLEAVAGE REVEALING FEATURE.”  The patented trousers include various see-through cutouts, labeled as 12 in the drawings below, that reveal the top portion of a wearer’s backside.  Thankfully, this wannabe fashion trend failed to catch on, and the patent was allowed to expire in 2006 due to non-payment of maintenance fees.  Good riddance!

You can see the full patent here: U.S. Patent No. 6,473,908

November 5, 2015   No Comments

Practice Tip – When does a U.S. patent expire?

One needs to check several things before one can determine when a patent will expire or has expired.

Determine the Patent term:  First, you need to determine the patent’s filing date and whether it claims priority to any earlier U.S. application.  Most utility patents today have a term that expires 20 years from the earliest filing of the patent.  However, patents that were pending at the USPTO before June 8, 1995 are subject to a dual term that makes the patent term the longer of: (1) 20 years from the patent’s earliest filing date, or (2) 17 years from the patent’s issue date.  For example, if an application’s earliest filing date is May 1, 1995, and it issued on May 1, 2000, the patent would be subject to the dual term determination.  The 20 year term calculation would lead to an expiration date of May 1, 2015, but the 17 year from issue term calculation would lead to an expiration date of May 1, 2017.  Thus, the longer 17 year term from issue would apply.  The earliest filing date can be prior to the patent’s actual filing date if it is a continuation, continuation-in-part, or divisional application of an earlier U.S. patent application.  Also, the earliest filing date could include the international filing date if the priority application was filed under the Patent Cooperation Treaty (PCT).  The earliest filing date does not include an earlier provisional filing date if the patent claims priority to the provisional.

If you are dealing with a design patent, its expiration date is determined from its date of issuance, not the earliest filing date.  See our earlier post on this subject.  In sum, design patents granted on applications filed before May 13, 2015 will have a 14 year term, and those granted on applications filed on or after May 13, 2015 will have a 15 year term.

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November 3, 2015   No Comments

Form 18: Goodbye (and Good Riddance?)

With the amendment to the Federal Rules of Civil Procedure going into effect on December 1, 2015 (absent an act of Congress to the contrary), Rule 84 and all of the accepted forms that go with it –including Form 18 for patent complaints – will be abrogated.  As many of you know and have experienced, Form 18 suggests that little more than an identification of the patent(s)-in-suit and a general assertion that the defendant infringes is sufficient to support a claim for patent infringement.  Form 18 has served as an effective shield against the heightened pleadings standards set forth in the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, as the Federal Circuit acknowledged in K-Tech Telecommunications, Inc. v. Time Warner Cable, Inc., 714 F.3d 1277 (Fed. Cir. 2013). [Read more →]

October 23, 2015   No Comments

#TBT Trademarks: Scripps National Spelling Bee

On this Throwback Thursday, here’s a mark that may bring back fond (or maybe not so fond) memories for anyone in elementary and middle school in the 1990s:


The E.W. Scripps Company administers the nation’s largest and longest-running spelling bee.  The National Spelling Bee was started in 1925 and Scripps took over sponsorship in 1941 (taking a hiatus from 1943 to 1945).  Frank Neuhauser won the very first National Spelling Bee by correctly spelling gladiolus.  In the most recent competition in 2015, co-champions took home trophies and spelling bragging rights: Vanya Shivashankar and Gokul Venkatachalam.  Their winning words were scherenschnitte and nunatak, respectively.*  Of the 93 National Spelling Bee champions (co-champions were declared five times), 45 have been boys and 48 have been girls.

On this day in 1996, the National Spelling Bee’s new logo was registered with the USPTO (No. 20009905) in Class 41 for use with “Entertainment services in the nature of spelling contests intended to promote the importance of correct spelling in primary school curricula.”

In the 90s, this updated logo replaced the former logo, which had a pretty long run (first used in 1952):


The logo developed in the 1990s is still in use now.  So what’s new since the 90s?  Now you can follow the National Spelling Bee on Instagram and Twitter and “Like” it on Facebook.

*If you’re curious (I was), scherenschnitte is the art of cutting continuous paper designs. An art form developed in Switzerland and Germany in the 1500s, it was brought to Colonial America in the 1700s by immigrants who settled primarily in Pennsylvania.  A nunatak, or sometimes called a “glacial island,” is an exposed, often rocky element of a ridge, mountain or peak within an ice field or glacier that is not covered by ice or snow.


October 22, 2015   No Comments

UVA’s Claim for Breach of a Patent License is Sent Back to Arbitration

A recent decision by Judge Glen Conrad of the Western District of Virginia is a reminder of how difficult it is to overcome an arbitration clause in a patent license. University of Virginia Patent Foundation v. DynaVox Systems, LLC, Case No. 3:15CV00015, 2015 U.S. Dist. LEXIS 134687 (W.D. Va. Oct. 1, 2015) (found here). If, as Judge Conrad held, the court cannot say with “positive assurance” that an arbitration clause does not apply, a claim will be subject to arbitration.

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October 19, 2015   No Comments

#ThrowbackThursday Trademarks: “Rummy Rumble”

On this day in 1985, International Games, Inc.’s trademark RUMMY RUMBLE registered with the USPTO (No. 1364678):


The mark was registered in International Class 28 for “equipment sold as a unit for playing a combination card and board game.”  As the game box itself says, “The Rummy Rumble Family Board Game adds new twists and turns to the ever popular Rummy card game.”  No actual rumbling involved (until little sister gets the card you need to complete your hand–then the table flies).

The registration was cancelled just seven years later and the game is no longer in production.  But if you’re feeling nostalgic, you can find some vintage boards on Amazon, ebay and Etsy.


October 8, 2015   No Comments

Practice Tip – Determining Design Patent Term

The term for utility patents is typically determined based on the filing date of the priority application, thereby limiting the term of subsequently filed “child” (e.g., continuation, divisional, and continuation-in-part “CIP”) patents.  In contrast, the term for design patents is determined based on the design patent’s issue date.  Specifically, design patents that issue after May 13, 2015 have a term of 15 years from the issue date, while design patents that issued prior to May 13, 2015 have a term of 14 years from the issue date.


Why is this seemingly minor difference in determining patent term significant for design patents?  The term of a design patent family is not limited by the filing date of the earliest application, meaning that a design patent family could live indefinitely (in theory, though other issues would likely arise in practice).  For example, an applicant may file a CIP design patent application that claims priority to a prior patent application, and the term of the CIP design patent application would be 15 years from its issue date regardless of the filing date of the prior patent application.  This is important to consider both on the front end — when strategizing to build a design patent portfolio — and on the back end — when determining non-infringement or reasonable royalties during litigation or calculating value based on potential term of a patent family during an acquisition or sale.

October 7, 2015   1 Comment

#FlashbackFriday Patents: Velcro

A patent for this handy invention was granted this week in 1955. That’s right — 60 years ago! Story has it that the Swiss inventor, George de Mestral, was inspired to create velcro when a burdock burr attached itself to his dog’s fur while on a hunting trip in the Alps. As they say, the rest is history…



You can see the full patent here: U.S. Patent No. 2,717,437

September 11, 2015   No Comments

#FlashbackFriday Patents: Doggy Dust Cover

Kicking off our new weekly series highlighting a significant, hilarious, and/or downright goofy patent filed on this day in history — #FlashbackFriday Patents.

For all the pet owners out there who love snuggies (or even have pets who live “the snug life”), check out this inspirational patent application filed today in 1963.


You can see the full patent here: U.S. Patent No. 3,150,641

September 4, 2015   No Comments

Two Recent Court Decisions Clarify “Reliance” Predicate for Hatch-Waxman Exclusivity and Patent Certification Obligations in the Context of 505(b)(2) Applications

This post is from the Troutman Sanders Advisory dated July 21, 2015 authored by Clark G. Sullivan, Sujatha Vathyam, Ph.D., and David L. Devernoe

Two lawsuits against the Food and Drug Administration (“FDA”) this year have clarified the 3-year data exclusivity and patent certification provisions that govern applications filed under section 505(b)(2) of the Food Drug and Cosmetic Act (the “FD&C Act”). In the exclusivity case, Veloxis Pharmaceuticals, Inc. v. United States Food and Drug Administration, et al., a United States District Court held that reliance on an earlier approval was not necessary for three year data exclusivity to delay the later filed 505(b)(2) application. Exclusivity arose solely because the later application was for the same drug as the earlier approval and would be approved for the same conditions of use.

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July 24, 2015   No Comments