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The Board of Patent Appeals and Interferences of the U.S. Patent and Trademark Office issued a ruling that Whirlpool Corp. had not proven that it invented the concept of a refrigerator dispenser with an extendable tray and water spigot before Finnegan client LG Electronics Inc.  Whirlpool sought the PTO Board’s ruling as part of its effort in various forums to invalidate LG’s patents directed to refrigerator dispensers.  The PTO Board agreed with LG that Whirlpool failed to prove that its prototype refrigerator worked for its intended purpose, and therefore was not a valid reduction to practice before LG’s earliest application was filed. Thus, LG’s involved patents remain valid, and the PTO Board entered judgment that Whirlpool’s pending claims are “finally refused.”

Finnegan client Fidelity National Information Services Inc. (FIS) successfully challenged four banking patents owned by its rival financial-services-technology provider Fiserv Inc. FIS petitioned the Patent Trial and Appeal Board (PTAB) for covered business method patent review (CBM). The PTAB said the four patents—directed to processing payment instructions, providing electronic biller notifications, and processing interbank fund-transfer transactions—cover abstract ideas that, in light of the Supreme Court’s decision on patentability in Alice Corp. v. CLS Bank International, are too abstract to be patentable. The PTAB decisions stem from a suit filed in January 2012, in which Fiserv subsidiaries CheckFree Corp. and CashEdge Inc. accused FIS and its subsidiary Metavante Corp. of infringing the patents. Following a Markman hearing, the court stayed the litigation while the PTAB reviewed the Fiserv patents. 

In a litigation brought by Rolls-Royce against Finnegan client United Technologies Corporation, the Eastern District of Virginia entered the parties' stipulation of dismissal of all claims and counterclaims with prejudice. The court had earlier entered summary judgment that UTC did not infringe Rolls-Royce's patent and entered final judgment, ending Rolls-Royce's quest for an injunction and almost $4 billion in damages plus increased damages for alleged willful infringement. The ruling stemmed from the court's adoption of UTC's claim construction, namely that the claims of Rolls-Royce's patent are limited to jet engine fan stages having fan blades with only three regions of sweep, while UTC's have four.  After the court entered final judgment, the parties settled the case, stipulating to the dismissal with prejudice. 

In a copyright infringement case involving an architectural work, plaintiff Humphreys & Partners Architects sued Finnegan client Lessard Design, Inc., alleging that Lessard’s apartment building infringed Humphreys’ condominium building design. Besides being high-rises, Humphreys alleged both buildings included two elevator cores connected by a fire or service corridor; a barbell-shaped floor plan thicker on the ends and thinner in the middle; corner units with diagonal entry access; and projecting elements at the cornice of the roof line. Lessard successfully moved for summary judgment for non-infringement in the Eastern District of Virginia, which found that none of the architectural elements asserted by Humphreys against Lessard were individually protectable. The court further ruled that even assuming the overall arrangement of those elements was protectable, the buildings were no more similar “than any two randomly selected high-rise multi-family projects would be based on building code regulations and industry standard practices.” Humphreys then appealed to the Fourth Circuit, which affirmed the lower court’s ruling. The Eastern District of Virginia (E.D. Va.) also granted attorneys fees and costs to Lessard as the prevailing party.

Finnegan defended Xylem in a case brought by an individual, Ron Roberts, for alleged misappropriation of an idea for a deodorizing device for marine toilets on boats.  Roberts and Xylem had executed a Non-Disclosure Agreement (“NDA”) that specifically excluded from its coverage information in the “public domain” at the time of its disclosure.  Roberts then showed Xylem his deodorizing device, and the parties engaged in licensing negotiations for some time.  Xylem eventually signed the license agreement, but Roberts never executed the agreement, and instead filed lawsuit against Xylem, claiming the license his UK lawyer negotiated on his behalf was unfair.  Roberts alleged idea misappropriation, breach of the NDA, and unjust enrichment.  Finnegan asserted that far from a trade secret, Roberts’ device was in the “public domain” at the time of its disclosure to Xylem.  Finnegan retained a prominent marine sanitation expert, known as the “Head Mistress” in the industry, who has for many years been a leading voice in the field of marine toilets/boat sanitation.  Working with the expert, Finnegan identified third-party devices for deodorizing toilets to challenge Roberts’ claim that his device/technology was novel. From the outset, Finnegan also focused on minimizing potential damages in the case.  Roberts claimed that he was entitled to a substantial reasonable royalty on future sales of his marine toilet devices.  With the help of its marine sanitation expert and Xylem’s engineers, Finnegan located various third-party devices for sanitizing toilets on boats and reached out to their makers to show that the devices were not big sellers and that Roberts’ device likewise did not have the sales potential Roberts alleged.  The case eventually settled to the client’s satisfaction.

An organization of scientists implemented Finnegan’s proposed copyright registration and enforcement strategy for its secured exams and study materials. Now, when the organization finds its study materials or exams posted on the Internet or exchanged by email, it is ready to take quick and forceful action. For example, we filed an infringement suit, which quickly concluded with a consent judgment. Our client was then able to use this enforcement effort in an advertising campaign aimed at educating the community about its rights. The registrations also allow Finnegan to quickly issue persuasive notices and subpoenas under the DMCA and to obtain the identity of infringers.

In the fields of memory technology, cryptography, and other new ventures, we help Rambus obtain patent rights from patent offices worldwide and have taken significant roles in assessing intellectual property issues as part of acquisition due diligence efforts and other strategic counseling projects. For example, in connection with Rambus’ acquisition of Cryptography Research, Inc. (CRI), Finnegan conducted an extensive IP due diligence. The deal was valued at over $350 million and involved the acquisition of the CRI and its IP assets focused on cryptographic technologies, such as protective measures against differential power analysis and other ways of protecting encrypted systems.

In a complete victory for Finnegan client Vuly Trampolines, the International Trade Commission issued a final determination of no violation in its investigation Certain Soft-Edged Trampolines and Components Thereof.  Springfree Trampolines filed its complaint alleging Vuly’s Thunder trampoline infringed its patent, just as Vuly was entering the U.S. market after a successful launch of the Thunder trampoline in Vuly’s native Australia.  After a full evidentiary hearing, the administrative law judge issued an initial determination finding no violation by Vuly.  The ITC reviewed the decision and confirmed no violation.  Of the two claims Springfree asserted against Vuly, the ITC found one claim not infringed and the other invalid.  The ITC also found that Springfree failed to establish the economic prong of domestic industry, resulting in a separate and independent basis for the finding of no violation.

The Trademark Trial and Appeal Board granted judgment in favor of Italian design house Emilio Pucci (subsidiary of luxury goods conglomerate LVMH Moët Hennessy), finding that the defendant’s mark EMIDIO TUCCI for apparel and accessories is confusingly similar to the client’s long-used EMILIO PUCCI mark for fashion products. In response to submissions showing extensive use of EMILIO PUCCI since the early 1950s on a wide variety of clothing and other goods, the Board found that the mark had developed “substantial renown” in the field of apparel and accessories and become a “well-established brand.” Pucci defeated defendant’s argument that the expensive nature of Pucci’s products limited its renown to a small group of sophisticated purchasers (mostly women) by submitting extensive evidence showing broad public recognition of the mark.

Shortly after Subaru launched its newest vehicle named the “Crosstrek,” Trek Bicycle filed suit for trademark infringement, trademark dilution, and unfair competition of its “Trek” and numerous “Trek-formative” trademarks. Trek and Subaru had been long-standing partners in a professional mountain bike team. As such, in addition to its assertions of trademark infringement and dilution, Trek also alleged that Subaru’s “Crosstrek” name breached the existing sponsorship agreement. Trek moved for a preliminary injunction. Faced with the possibility of rebranding its new vehicle, Subaru turned to Finnegan. Finnegan put together a team that could handle expedited discovery (which was virtually case-comprehensive and involved extensive ESI document discovery and many fact and Rule 30(b)(6) depositions), working with experts to conduct likelihood of confusion and dilution surveys, calculate harm and damages, and study linguistic usage of the word “trek,” as well as obtaining and managing documents produced from dozens of third-party subpoenas. Finnegan uncovered facts leading to a counterclaim for genericness, abandonment, and fraud, as well important facts undermining the alleged strength of the Trek brand. Prior to the preliminary injunction hearing date, the case was favourably settled with Subaru’s ownership, use, and registration of its “Crosstrek” trademark unfettered and unchanged.


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