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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.

Finnegan successfully represented Eli Lilly in a litigation against Genentech and the Regents of the University of California (UC) regarding Eli Lilly’s Humulin® insulin product, the first biotechnology product to be marketed in the United States. We obtained judgment, affirmed on appeal, that UC’s patents were either not infringed or invalid under the written description requirement of 35 U.S.C. § 112.

In response to litigations brought by CreateAds for a computerized “visual design” solutions patent, Google and Yahoo! asked Finnegan to file an inter partes review (IPR) petition to challenge the claims of the asserted patent. The petition addressed all 20 claims of the patent, based on seven different grounds of prior art, and included a declaration from the author of a prior art Master’s Thesis Paper deposited in the MIT library. The IPR was coordinated with the underlying CreateAds consolidated litigations, in which Finnegan also played a significant role in briefing a summary judgment motion to dispose of the patent under 35 U.S.C. 101. After limited discovery and twice rejecting CreateAds’ claim construction proposals, the Patent Trial and Appeal Board (PTAB) issued a final written decision finding all 20 claims unpatentable in view of the prior art and maintaining all seven instituted grounds advanced by the Finnegan team.

Finnegan client iFly Holdings LLC (iFly) served Indoor Skydiving Germany GMBH (ISG) with a complaint in the Eastern District of Texas, alleging infringement of its patent directed to vertical wind tunnels used for simulated skydiving. ISG then petitioned the Patent Trial and Appeal Board (PTAB) to institute an inter partes review (IPR) of iFly’s patent claims as anticipated and obvious in view of several references. Finnegan secured a total non-institution win for iFly through arguments raised in its patent owner’s preliminary response, including that ISG failed to demonstrate the references it cited against iFly’s patent were prior art printed publications, that other prior art did not teach or suggest claim features relating to the staging area of the vertical wind tunnel, and that ISG did not provide adequate reasoning to support its obviousness grounds. The PTAB denied institution on all grounds, concluding that the petition failed to show a reasonable likelihood of success that any challenged claim was unpatentable.

Finnegan client Health Diagnostic Laboratory, Inc. (HDL) served Boston Health Diagnostics Corporation with a complaint in the Eastern District of Virginia, alleging infringement of its patent directed to methods of predicting the risk of developing diabetes based on a model HDL developed using unique biomarker combinations. Boston Heart immediately petitioned the Patent Trial and Appeal Board (PTAB) to institute an inter partes review (IPR) challenging HDL’s asserted claims as anticipated and obvious in view of several prior art references. Finnegan secured a non-institution decision for HDL through arguments raised in its patent owner’s preliminary response that Boston Heart failed to demonstrate the prior art taught the diagnostic model using the claimed biomarker panels. The PTAB denied institution on all grounds, concluding that the petition failed to adequately explain how the cited references disclose the model as claimed.

On behalf of Minnesota Mining and Manufacturing Co., we provoked an interference in the PTO between 3M’s patent application and a patent issued to Adhesives Research, Inc. The subject matter was a type of transdermal drug delivery system that uses an adhesive composition, and both parties introduced evidence of actual reduction to practice. We were successful in obtaining an award of priority against the patentee in the PTO and thereafter prevailed in a Section 146 action for review of the PTO decision brought by the losing patentee in the U.S. District Court for the District of Columbia.

Finnegan defended Korea-based client SK Innovation (SKI) in a patent infringement suit against plaintiff Celgard LLC in the Western District of North Carolina, where Celgard is located. After extensive jurisdictional discovery, the court granted SKI’s motion to dismiss for lack of personal jurisdiction and denied Celgard’s motion for preliminary injunction. Finnegan also obtained relief from the court for SKI after it was discovered that Celgard sent SKI confidential information to Celgard’s Korean counsel in unrelated Korean proceedings between the parties. The relief included prohibition of further transmission of SKI confidential information to Celgard’s Korean counsel and a bar against each of Celgard’s Korean attorneys who viewed SKI confidential information from further work on the Korean proceedings. Celgard appealed the district court’s dismissal of the case to the Federal Circuit. Finnegan represented SKI in the appeal as well. After full briefing and an oral argument, the Federal Circuit affirmed the district court’s dismissal of the case, securing SKI’s victory on the issue of personal jurisdiction.

Bear Creek Technologies, Inc. filed suit in the Eastern District of Virginia against Finnegan client Verizon, along with numerous other major telecommunications companies, alleging infringement of a patent that Bear Creek claimed generally related to Voice-over-Internet Protocol (VoIP) technology. After a Markman hearing, the court transferred the case to the District of Delaware for consolidated pretrial proceedings with the other defendants in a multi-district litigation (MDL). The Delaware court decided to stay the proceedings pending a third-party reexamination of the patent-in-suit. After nearly five years of litigation, Finnegan secured a dismissal of the suit against Verizon with prejudice, without the need for dispositive motions or a trial.


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