Publications & Media

Federal Circuit Court Decisions For Week Ending November 16, 2018

ArcelorMittal v. AK Steel Corp., No. 2017-1637, November 14, 2018, precedential (3-0), U.S. Patent No. RE44,940 (“RE940”).

Key point(s): 

  • A primary issue in a collateral estoppel analysis with respect to non-infringement is whether the accused product is the same or whether it has materially changed.

WhatsApp, Inc. v. TriPlay, Inc., Nos. 2017-2549, 2017-2551, November 14, 2018, nonprecedential, U.S. Patent No. 8,874,677 (‘677).

Key point(s): 

  • When prior art references include all claim limitations, common sense may be used to supply a motivation to combine the teachings of the references.

Omaha Steaks International, Inc. v. Greater Omaha Packing Co., Inc., No. 2018-1152, November 15, 2018, precedential (3-0), U.S. TM App. No. 85/897,951.

Key point(s):

  • When determining the fame of a mark in conducting an analysis of the fifth DuPont factor, context for raw sales and marketing expenditures can be supplied by evidence of regular nationwide exposure to advertising and sales.
  • When determining similarity or dissimilarity of marks in conducting an analysis of the first and sixth DuPont factors, similarity of goods or services must be considered.

Ancora Technologies, Inc. v. HTC America, Inc., No. 2018-1404, November 16, 2018, precedential, U.S. Pat. No. 6,411,941 (‘941).

Key point(s): 

  • A technological improvement, such as improving security against unauthorized use of a program, is a non-abstract computer-functionality improvement when done by a specific technique that departs from earlier approaches to solve a specific computer problem.

Hamilton Beach Brands, Inc. v. F’Real Foods, LLC, No. 2018-1274, November 16, 2018, precedential (3-0), U.S. Pat. No. 7,520,662 (‘662).

Key point(s): 

  • It is not a violation of the Administrative Procedure Act for the PTAB to construe a term without giving parties a chance to respond when both parties previously argued similar proposed constructions.