Virginia IP Law > Troutman Sanders LLP

Supreme Court Holding Emphasizes Risks in Modernizing Trademarks

When brand owners such as Wendy’s fast food restaurants decide to modernize a logo to appeal to changing consumer tastes, the focus is usually on branding and image consultants. However, a decision by the Supreme Court earlier this week served as a reminder that trademark laws need to be factored into the decision to modernize or modify a brand.
Companies regularly modernize or modify brands to freshen them to appeal to changing consumer tastes or send new messages to the public. The goal is to retain the recognition and good will in the existing brand while creating a new vision for that brand. For example, a review of the evolution of the famous Prudential “Rock of Gibraltar” shows a vivid graphic depiction of the physical “Rock” that evolved into a highly stylized logo.

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January 23, 2015   No Comments

Troutman Sanders Federal Circuit Review Special Issue – January 22, 2015

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Each week, Troutman Sanders’ Federal Circuit review summarizes the Federal Circuit precedential patent opinions from the prior week.   

Special Issue – Important Supreme Court Case

This week:

  • Supreme Court Applies “Clear Error” to Subsidiary Factual Findings in Federal Circuit’s De Novo Claim Construction. 
  • Court Remands Patent Prosecution Malpractice Case to State Court. 
  • Federal Circuit Reverses Rejection of Trademark Utilizing Geographically Descriptive Term. 

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January 23, 2015   No Comments

SCOTUS: Tacking a Question for the Jury

Justice Sotomayor delivered the unanimous decision of the Supreme Court in Hana Financial, Inc. v. Hana Bank, et al, 574 U.S. __, No. 13-1211 (Jan. 21, 2015), holding that whether tacking is available to a trademark owner in a given case is question of fact that should be determined by a jury.  The full opinion is available here. [Read more →]

January 22, 2015   No Comments

Troutman Sanders Federal Circuit Review – January 16, 2015

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Each week, Troutman Sanders’ Federal Circuit review summarizes the Federal Circuit precedential patent opinions from the prior week.   

This week:

  • Unaffiliated third party use must be publicly accessible to invalidate later-filed patents under 102(b).
  • Federal Circuit applied the de novo standard of review to the objective prong of the willfulness inquiry and affirmed the district court’s finding of willfulness.

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January 20, 2015   No Comments

District Court Denies Motion to Seal Trial Transcript

As we have written before, patent litigants can easily protect confidential proprietary and trade secret information produced in discovery or submitted with pre-trial motions through the use of protective orders and motions to seal, but it is far more difficult to keep trial testimony and exhibits out of the public record. A recent decision from Judge Morgan denying a patent defendant’s motion to seal the portions of a trial transcript that revealed the “specific cocktail of ingredients” used in the defendant’s products demonstrates just how narrowly the EDVA applies the standards for sealing trial testimony. LifeNet Health v. LifeCell Corp., Case No. 2:13cv486, 2014 U.S. Dist. LEXIS 179930 (E.D. Va. Jan. 9, 2015) (found here).

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January 14, 2015   No Comments

Troutman Sanders Federal Circuit Review – January 9, 2015

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Each week, Troutman Sanders’ Federal Circuit review summarizes the Federal Circuit precedential patent opinions from the prior week.   

This week:

  • Federal Circuit Affirms Patent Ineligibility of Myriad BRCA Claims, Leaves Open Potential Patentability of Methods to Screen for Newly Discovered Gene Mutations
  • Court Reverses Premature Dismissal of Trade Secret Misappropriation Claims at the Complaint Stage
  • Reasonable Royalty Encompasses What an Infringer Would Have Paid in a Hypothetical Negotiation And Is Not Limited by What the Infringer Actually Earned from his Unilateral Infringement Discount
  • Prior Art Is Available and Not Abandoned When Delays Are Consistent With an On-going Commitment and When A Prior Inventor Resumes Work Before A Later Inventor Conceives The Invention; Broadening Reissue Patents May Be Granted Even When Filed in View of Market Developments

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January 9, 2015   No Comments

FDA’s POCA Scoring System for New Drug Names

In spite of FDA’s best efforts, medication errors continue to burden our health care system. These errors can occur for a variety of reasons, ranging from pharmacists incorrectly interpreting the letters or words on a hand-written prescription, to nurses incorrectly interpreting physician instructions for hospitalized patients, and are estimated to cause approximately 7,000 deaths each year in the United States alone.

The United States Food and Drug Administration (“FDA”) recently unveiled a new initiative to reduce medication errors by evaluating product names using a Phonetic and Orthographic Computer Analysis (“POCA”).  In a May 2014 Draft Guidance, entitled Best Practices in Developing Proprietary Names for Drugs, FDA notes that its intentions are “to develop proprietary names that do not cause or contribute to medication errors or otherwise contribute to the misbranding of the drug.”

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January 8, 2015   No Comments

EDVA Holds That Providing an Expert’s Resume to a Court is Fair Use

The case of Devil’s Advocate, LLC v. Zurich American Ins. Co., Case No. 1:13CV1246, 2014 U.S. Dist. LEXIS 174309 (E.D. Va. Dec. 16, 2014), found here, tells the story of an expert fee dispute that turned into a case of copyright infringement.

The story begins when the defendant sought to retain the plaintiff, a legal fee management and consulting company, as an expert on legal fees in a civil case, but the parties could not agree on a fee. During the course of negotiations, an attorney for the defendant, with the knowledge and acquiescence of the plaintiff, filed an expert designation naming the plaintiff as defendant’s expert witness. While it was not required, the attorney also attached the plaintiff’s resume´ to the designation.

When the fee negotiations broke down, the plaintiff sent the defendant an invoice for services rendered and ultimately filed suit, alleging, among other things, that the submission of the resume´ to the court infringed the copyright in the resume.

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December 22, 2014   Comments Off

Troutman Sanders Federal Circuit Review – December 18, 2014

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Each week, Troutman Sanders’ Federal Circuit review summarizes the Federal Circuit precedential patent opinions from the prior week.   

This week:

  • Specific Claim Limitation That Uses “Comprising” in an Unpredictable Art May Not Be Enabled; and “Active Inducement” Under § 271(f)(1) Does Not Require a Third Party 
  • Goods and Services Not Generally Recognized as Having a Common Source of Origin Requires “Something More” Than a Showing That They Are “Used Together” to Establish Relatedness

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December 22, 2014   No Comments

Troutman Sanders Federal Circuit Review – December 11, 2014

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Each week, Troutman Sanders’ Federal Circuit review summarizes the Federal Circuit precedential patent opinions from the prior week.   

This week:

  • Lawsuit Seeking Declaratory Judgement to Shield Drug from Patent Is Premature When Brought Prior to Filing for FDA Approval 

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December 12, 2014   No Comments