Spotlight on Upcoming Oral Arguments – May 2024

The following arguments will be available to the public live, both in-person and through online audio streaming. Access information will be available by 9 AM ET each day of argument at: https://cafc.uscourts.gov/home/oral-argument/listen-to-oral-arguments/.

Monday, May 6, 2024, 10:00 A.M.

In re Zeta Tau Alpha Sorority, No. 23-1104, Courtroom 203, Panel C

The Zeta Tau Alpha Sorority (“Zeta Tau Alpha”) applied for the mark “ZTA” for use on jewelry (International Class 014) and apparel (International Class 025) in Application No. 90/090,117. The Examining Attorney rejected registration based on a likelihood of confusion with the mark “ZTA” (Reg. No. 5,991,321), for use on household and kitchen goods (International Classes 002, 013, 023, 029, 030, 033, 040, 050). The Trademark Trial and Appeal Board (“the Board”) affirmed the refusal, finding that the marks are identical, the goods are offered by the same sources and through the same channels of trade to some of the same types of consumers. On appeal, Zeta Tau Alpha contends that the goods under their ZTA mark are “affinity goods” that are primarily sold only to sorority members within a niche market for sorority and fraternity goods and that the Board failed to give appropriate weight to DuPont factor (3) on the similarity or dissimilarity of trade channels. Zeta Tau Alpha further asserts that the Board erred by relying on an overly broad application of “3^rdparty uses” to support a finding that jewelry and clothing are related enough to common housewares for a likelihood of confusion to exist. The USPTO rejects Zeta Tau Alpha’s argument that “something more” is required to demonstrate a sufficient relationship between the goods beyond evidence that the goods commonly emanate from a single source under the same mark, because “something more” is restricted to cases where the relatedness of the goods is not evident, well known, or generally recognized. The USPTO further contends that the Board properly applied a presumption that the goods travel in normal trade channels for all classes of purchasers because neither Zeta Tau Alpha’s application nor the cited registration limit use to specific trade channels.

Wednesday, May 8, 2024, 10:00 A.M.

Q3 Networking LLC v. ITC, No. 22-1957, Courtroom 201, Panel F

Q3 Networking LLC (“Q3”) filed a complaint with the International Trade Commission (“the Commission”) alleging violations of Section 337 through the importation of routers, access points, controllers, network management devices, other networking products, and hardware and software that allegedly infringed claims in U.S. Patent Nos. 8,797,853 (“the ’853 patent”), 7,895,305 (“the ’305 patent”), 7,609,677 (“the ’677 patent”) and 7,457,627 (later withdrawn from complaint). This complaint was asserted against CommScope Holding Company, Inc., CommScope, Inc., Arris US Holdings, Inc., Ruckus Wireless, Inc., Hewlett Packard Enterprise Co., Aruba Networks, LLC and Netgear, Inc (collectively, “Respondents”). After a hearing on the merits, the ALJ issued an Initial Determination (“ID”) finding that the accused products did not infringe the asserted patent claims and that the domestic industry requirement (both technical and economic prongs) was not satisfied. The ID also did not find any of the asserted patent claims invalid. Q3 petitioned for Commission review of the ID on several bases, and the Commission reviewed the ID in part, deciding not to take a position on the economic prong of the domestic industry requirement and correcting non-substantive citation errors pertaining to the ID’s technical prong findings. The Commission also determined not to review the remainder of the ID, including the ALJ’s finding of no violation of Section 337. Q3 appealed the Commission’s final decision, asserting that the Commission breached the Administrative Procedure Act (“APA”) requirement that the Commission provide a reasoned explanation for its action, because the ALJ used relevant portions of the Respondents’ post-trial brief in their ID sections on infringement and the technical prong of the domestic industry requirement (which ultimately became part of the Commission’s Final Determination). In response, the Commission states that Q3 waived its APA violation argument and additional contentions for remand because Q3 did not raise these arguments in its petition for Commission review of the ALJ’s Final ID. Further, the Commission contends that Q3’s arguments fail as a matter of law because even if a tribunal copies a party’s findings verbatim, those findings are not ipso facto invalid, but remain the findings of the tribunal and are subject to the appropriate standard of review.

Thursday, May 9, 2024, 10:00 A.M.

Allergan USA, Inc. v. MSN Laboratories Private Ltd., No. 24-1061, Courtroom 201, Panel H

Allergan USA, Inc., Allergan Holdings Unlimited Company, and Allergan Pharmaceuticals International Limited (collectively, “Allergan”) received approval of a New Drug Application on an eluxadoline-based drug, VIBERZI®, that mitigates the symptoms of irritable bowel syndrome with diarrhea. Sun Pharmaceuticals Industries, Ltd. (“Sun”) and MSN Laboratories Private Ltd. (“MSN”) subsequently filed Abbreviated New Drug Applications for generic versions of VIBERZI® and paragraph IV certifications on VIBERZI®’s underlying patents. Allergan sued Sun and MSN in the U.S. District Court of Delaware for infringement of U.S. Patent Nos. 7,741,356 (“the ’356 patent”), which received a patent term adjustment (“PTA”). Relying on the recent Federal Circuit decision In re Cellect, 81 F.4th 1216, 1229 (Fed. Cir. 2023), the district court found claim 40 of the ’356 patent invalid for obviousness-type double patenting (“ODP”) over later-filed and later-issued (but earlier-expiring) U.S. Patent Nos. 8,344,011 (“the ’011 patent”) and 8,608,709 (“the ’709 patent"), pointing to the fact the PTA-adjusted expiration date of the ’356 patent fell after the expiration of the ’011 and ’709 patents even though the ’356 patent was both filed and issued first. On appeal, Allergan argues that the district court erred in applying In re Cellect, which based ODP truncation on the expiration date of a patent with PTA, to the patent family at issue because ODP cannot be applied to cut off the term of a first-filed and first-issued patent based on later-filed, earlier-expiring patents in the same family. Sun and MSN contend that the district court properly found ODP by applying In re Cellect, which, according to Sun and MSN, confirms that an earlier-filed, earlier-issued patent that expires later due to PTA can be invalidated for ODP. Sun and MSN also argue that Allergan’s reliance on filing and issuance dates for the ’356 patent fails because, according to Sun and MSN, the case law focuses on patent expiration dates, and ODP allegedly applies regardless of when patents within a family are filed or issued.