March 12, 2015

Federal Circuit Court Decisions for the Week Ending March 6, 2015

Warsaw Orthopedic, Inc. v. NuVasive, Inc., Nos. 2013-1576 and 2013-1577, March 2, 2015 (precedential)(3-0); Patent Nos. 5,860,973, 6,945,933, and 7,470,236

Key point(s):

  • A claim referring to dimensions of the human vertebrae is not indefinite when the parties stipulated that the average dimensions of the human vertebrae are well-known, easily ascertainable, and well-documented in the literature.
  • A patent owner is not entitled to lost profits when the patent owner does not practice the patented technologies but instead (1) licenses the technologies to related companies and (2) manufactures and sells “fixations” to a related company for profit when the “fixations” are not functionally related to the patented products.

Couture v. Playdom, Inc., No. 2014-1480, March 2, 2015 (precedential)(3-0); Trademark Reg. No. 3,560,701

Key point(s):

  • The offering of a service, without the actual provision of a service, is not sufficient to constitute use in commerce under the Lanham Act § 45, 15 U.S.C. § 1127.
  • For a service mark to be used in commerce, the mark must be both displayed in the sale or advertising of services, and the services must be rendered.

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