Here’s the latest.

Trademark Next Hot Area of IP Law, Federal Circuit Judge Says

Reported by Perry Cooper at Bloomberg Law

Judge O’Malley spoke at a webinar hosted by the Intellectual Property Law Association of Chicago. Perry Cooper recaps the remarks where Judge O’Malley a rise in the interest in trademark law.

“I believe trademark is going to be the hot area of IP law in the next year or year and a half,” [Judge] O’Malley said. “I think things are exploding and there have been lots of changes.”

Judge O’Malley pointed to the recent Trademark Modernization Act which allows trademark plaintiffs to secure preliminary injunctions more easily and the TTAB’s move towards bright line rules which the Supreme Court disfavors. The Federal Circuit judge also discussed a need for either Congress or the World Intellectual Property Organization to address artificial intelligence.

The IP law system isn’t prepared to deal with issues of artificial intelligence “because it wasn’t anticipated,” O’Malley said. “The Supreme Court has often said the law can adapt to some changes but we can’t just decide to change the law because we didn’t anticipate some scientific change.”

US Says Oil Companies’ WWII-Era Cleanup Cost Claims Barred

Reported by Juan Carlos Rodriguez at Law360

The federal government petitioned the Federal Circuit this week to vacate the damages awarded to Shell Oil and other oil companies by the Court of Federal Claims. Juan Carlos Rodriguez covered the opening brief by the government which argued that a previous case which had already awarded approximately $100 million in damages and previously affirmed by the Federal Circuit covered the claims presented in the current case.

“The Shell I trial court asserted jurisdiction over the entire complaint and issued a final and conclusive judgment,” the government said. “Thus, any future costs that the oil companies were seeking were either contained in that judgment or, specifically regarding the future costs the oil companies currently seek, were extinguished when the Shell I judgment became final.”

The claims arise from the cleanup of pollution near Fullerton, California caused by the production of aviation fuel during World War II. The oil companies had asked for and received $1.6 million for the incurred costs since the previous case, but the government argues that res judicata applies to the claims and precludes recovery.

Olaplex, L’Oréal Lose Federal Circuit Appeals Over Haircare Patent

Reported by Rory O’Neill at World Intellectual Property Review

The Federal Circuit issued an opinion on Wednesday affirming the PTAB’s decision to invalidate Olaplex’s patent claims as obvious but leave the other claims of the patent untouched. Rory O’Neill summarizes the case where Olaplex sought to have the invalidation of the claims reversed, but L’Oréal also appealed to have the remaining claims also invalidated.

Olaplex and L’Oréal have been wrapped up in litigation over patents covering types of keratin treatments since early 2017. So far, Olaplex has had the upper hand—the dispute has already seen high-profile judgments in the startup’s favour issued by the UK Supreme Court, as well as a $50 million award from a Delaware district judge.

The Federal Circuit determined that the PTAB’s decision to invalidate was supported by “substantial evidence” and that L’Oréal did not satisfy its burden of demonstrating the unpatentability of the remaining claims.

For more information, see our coverage.