Articles for attorneys and the IP-savvy about substantive IP topics

  • Analogous Art for Design Patents

    Analogous Art for Design Patents

    The Federal Circuit issued an en banc decision in LKQ Corp. v. GM Global Tech. Operations LLC that substantially altered the obviousness analysis for design patents. The so-called Rosen–Durling framework was overruled (largely sidestepping the question of its abrogation by KSR). The patentability of ornamental designs of useful articles will now be under the same…

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  • New and Upcoming Changes in U.S. Patent, Trademark, & Copyright Law for 2024

    New and Upcoming Changes in U.S. Patent, Trademark, & Copyright Law for 2024

    Important Developments As 2024 begins, some recent and upcoming changes in practice at the U.S. Patent & Trademark Office (USPTO) for patent and trademark matters and at the U.S. Copyright Office for copyright matters merit attention, along with developments from U.S. courts pertaining to those areas of intellectual property (IP) law. (Click the preceding links…

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  • Patent Marking Program

    Patent Marking Program

    Materials from a presentation by Austen Zuege about patent marking in the United States are available here: “Patent Marking: Legal Standards and Practical Issues” These downloadable materials from a past live presentation address basic marking requirements and best practices for patent marking, as well as requirements for virtual marking, alternative marking on a label or…

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  • Federal Circuit Columbia Decision Both Clarifies and Muddies the Proper Use of Comparison Prior Art

    Federal Circuit Columbia Decision Both Clarifies and Muddies the Proper Use of Comparison Prior Art

    When can prior art be used to assess alleged infringement of a design patent?  This has been an evolving area of U.S. patent law.  The question matters because looking at only the asserted patent and the accused product might not allow an ordinary observer to understand the ways in which the patented design is similar…

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  • Virtual Patent Marking Program

    Virtual Patent Marking Program

    Materials from a presentation by Austen Zuege, Grant Peters, and Bryan Wheelock about virtual patent marking are available here: “Virtual Patent Marking: Practical Considerations, Recent Court Guidance, and Ideas for Designing Your Own Virtual Patent Marking Program” This presentation and downloadable materials addresses basic requirements and best practices for virtual patent marking, as well as…

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  • Patent Assignments and Priority in an International Context

    Patent Assignments and Priority in an International Context

    Materials from a presentation by Austen Zuege and Jonathan Bench about patent assignments and rights of priority, including presentation slides and an on-demand video recording, are available here: “Patent Assignments and Priority in an International Context”

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  • New and Upcoming Changes in U.S. Patent & Trademark Law for 2023

    New and Upcoming Changes in U.S. Patent & Trademark Law for 2023

    Important Developments At the beginning of 2023, following a year in which new filings declined, some recent and upcoming changes in practice at the U.S. Patent & Trademark Office (USPTO) for patent and trademark matters merit attention. Patents Reduced official fees for small and micro entities A change in the U.S. patent laws governing fee…

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  • Assignor Estoppel for Patent Assignments

    Assignor Estoppel for Patent Assignments

    The following article is available at SSRN: “Assignor Estoppel for Patent Assignments: A Shifting Landscape” Abstract: This article provides critical analysis of the doctrine of assignor estoppel for patent assignments following the Supreme Court’s Minerva v. Hologic decision, which limited the situations in which the doctrine is available to those that involve a “contradiction” by…

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  • Willful Patent Infringement: Lingering Questions

    Willful Patent Infringement: Lingering Questions

    A version of this article previously appeared in Landslide magazine (Vol. 14, Issue 4, June/July 2022), published by the ABA Intellectual Property Law Section. Introduction What are the minimum requirements to establish enhanced damages for patent infringement after the passage of the America Invents Act (AIA) and the U.S. Supreme Court’s decision in Halo, and…

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  • Conceptualizing Negative Limitations in Design Patents

    Conceptualizing Negative Limitations in Design Patents

    Is it possible for a U.S. design patent claim to include a negative limitation? It does not appear that courts have explicitly addressed this question. That is partly due to emphasis on design patent claims and infringement analyses revolving around the design as a whole, which can lead to rather conclusory decisions. But the question…

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