The U.S. Patent and Trademark Office (PTO) is currently studying the recently-issued and much-anticipated opinion by the Federal Circuit in Therasense, Inc. v. Becton, Dickinson & Co. (Fed. Cir. 2011)(en banc), hereinafter referred to as "Therasense." On May 25, 2011, the Federal Circuit delivered its opinion, changing the criteria for establishing a defense raised in response to an allegation of inequitable conduct.

One, two, three, four! I just counted the wheels on an automobile. In counting to four, I noticed that the car had at least one wheel, at least two wheels and at least three wheels. Regardless of the particular product, many patent infringement law suits have erupted into a dispute over how many of a particular component are covered by claims in a patent for that product.

In Microsoft v. i4i, the U.S. Supreme Court confirmed that patent invalidity must be proved by clear and convincing evidence. Microsoft v. i4i, --- S. Ct. ----, 2011 WL 2224428 (June 9, 2011). The Court's unanimous decision supports strong patent rights because it maintains the heightened clear and convincing standard for proving invalidity as opposed to the lower preponderance of the evidence standard advocated for by Microsoft.

One of the biggest changes to the internet is just around the corner. The Internet Corporation for Assigned Names and Numbers ("ICANN"), who is responsible for managing the internet's domain name system, has just come one step closer to expanding the number of generic Top-Level Domains ("gTLDs") available for use. On June 20, 2011, ICANN voted to approve the "gTLD Applicant Guidebook."

Under U.S. Patent law, inventors and other individuals substantively involved with the preparation and/or prosecution of the application, such as assignees and patent attorneys, have a duty to disclose to the U.S. Patent and Trademark Office (USPTO), information which is material to patentability of the claimed invention.

The United States District Court for the Southern District of New York rejected a 2008 proposed settlement agreement (the “2008 Agreement”) between Google, Inc. and The Authors Guild and the Association of American Publishers.

Under Kentucky law there is apparently something to be said for the saying “a picture is worth a thousand words.”

On April 11, 2011 the 9th U.S. Circuit Court of Appeals ruled that Tyler and Cameron Winklevoss, co-founders of Facebook®, could not back out of a settlement deal they reached with Mark Zuckerberg (founder of Facebook) and Facebook, Inc.

As you may recall a number of years ago Mattel sued MGA Entertainment claiming MGA stole its trade secrets when it entered into an agreement with Carter Bryant, the designer of the Bratz doll.

In Costco v. Omega, the Ninth Circuit held that the first sale doctrine was not available as a defense to unauthorized importation and distribution of a U.S. copyrighted work that was first made or sold outside of the U.S. under the authorization of the copyright owner because the Copyright Act does not extend to activity outside the U.S.

Jack LaLanne passed away on Sunday, January 23, 2011. Mr. LaLanne devoted his life to health and physical fitness. When you hear his name or see his likeliness you immediately think of exercise and nutrition which is her legacy. So, it is only fitting that prior to his death he filed for trademark protection of his “image” with the United States Patent and Trademark Office. So that she would be protected.

Distance learning has become an increasingly popular means of teaching educational topics to students on-line in undergraduate, graduate and professional development venues. Such distance learning classes strive to match the face-to-face classroom learning experience, which often incorporate display of copyrighted materials,1 in particular digital formatted works, such as photographs, sound recordings and movies to supplement and fortify the learning experience.

The term “prior art” encompasses what is known to the public before a certain time, usually, what is known prior to development of an invention. Prior art includes articles, domestic and foreign published patent applications and issued patents, lectures, slide shows, books, and the like. A prior art search allows you to gain a better understanding of the state of the prior art prior to filing a patent application or releasing a new product to the market.

With over 9 million horses in the United States and over 58 million horses worldwide, many savvy entrepreneurs have sought patent protection for their equine related inventions. For example, horses can be severely bothered by flies and other insects especially when the insects fly into the horse’s eyes. The headlined photographs illustrate two examples of “fly masks” which could be used to combat such eye irritation, at least one of which was patented.

For over one hundred years, Thomas’ English Muffins has been making its english muffins with the famous “nooks and crannies.” Until this year, Thomas’ probably thought its secret to the muffin was safe. However, Chris Botticella, a former senior vice president for Bimbo Foods, the owner of Thomas’ English Muffins, is involved in a lawsuit with his former employer after he accepted a job with its competitor Hostess.

While not required under U.S. Patent law, marking is beneficial in providing constructive notice to others that the product is patented and damages for infringement may accrue from the date of constructive notice.

Section 1201 of the copyright law (17 U.S.C. §1201(a)(1)) requires every three years that the Librarian of Congress determine whether there are any classes of works that will be subject to exemptions from prohibition against the circumvention of Digital Rights Management (DRM), which is a form of technology that controls access to a copyrighted work.

In June of this year, the Supreme Court of the United States handed down the ruling in the case of Bilski v. Kapos, which as we all hoped, would have provided a clear definition, or test, of what is considered to be patentable subject matter. Unfortunately, the Bilski decision provided little guidance.

The U.S. Supreme Court recently decided a case that has a bearing on whether or not infringement claims can be brought in federal court for unregistered copyrights. Since this is an important decision, we wanted to alert our clients and friends of it.