Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report includes a comment on a petition for en banc rehearing that seeks to prevent the Patent Trial and Appeal Board from effectively overturning jury verdicts, a report on the Federal Circuit’s affirmation of a rejection of an application for a trademark on “Beast Mode Soccer,” and a comment on trends regarding use of the phrase “inequitable conduct” in the Federal Circuit’s decisions.
At IPWatchdog, Andy Schlafly commented on the perceived necessity of en banc rehearing in Chrimar Systems, Inc. v. ALE USA Inc., in which a panel of Federal Circuit affirmed a PTAB decision “invalidat[ing] the underlying patent” and “overturned the jury verdict in favor of Chrimar.” Schlafly noted that “[a]ll the victorious work by Chrimar in the federal trial court went out the window, not because of any error of law at trial, but based on interference by an agency with a judicial proceeding.” Schlafly reasoned that “[t]he Constitution established a strict separation of powers to prevent that sort of interference, particularly post-judgment reversal of a verdict rendered by a court,” and stated that “[a] jury verdict for a patent should be as robust as a jury verdict about a contract.” (We recently reported on new amicus briefs filed in support of en banc rehearing in this case, including an amicus brief written by Schlafly on behalf of Eagle Forum Education & Legal Defense Fund.)
Kyle Jahner reported for Bloomberg Law that the Federal Circuit ruled in In re Copeland-Smith that “[f]ormer NFL player Marshawn Lynch’s ‘Beast Mode’ trademark for clothing blocks a soccer coach from registering his ‘Beast Mode Soccer’ trademark on apparel. Jahner noted that “Copeland-Smith argued that the board wrongly ignored Soccer when comparing the marks, and that the word distinguished his mark,” but “the Federal Circuit said . . . descriptive or generic terms—like ‘soccer’ in a mark covering soccer coaches—carry little weight in consumers’ impressions of a mark, leaving the two marks highly similar.”
Over at PatentlyO, Dennis Crouch commented on a “totally different trend” in Federal Circuit decisions related to inequitable conduct prior to and after the Federal Circuit’s en banc decision in Therasense, Inc. v. Becton, Dickinson & Co. in 2009. Unsurprisingly—given that Therasense made it more difficult to prove both of inequitable conduct’s two requirements, materiality and intent to deceive—his charts show that the use of the phrase “inequitable conduct,” while trending up prior to 2009, have trended down since then.