Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:
- an article expressing the opinion that the Federal Circuit’s effort to clarify design patent law in LKQ Corporation v. GM Global Technology Operations LLC “utterly failed”; and
- an article suggesting a Federal Circuit case is “set to shape false advertising law.”
Former Federal Circuit Chief Judge Randall Rader wrote an article for IPWatchdog expressing his opinion that the Federal Circuit’s effort to clarify design patent law in LKQ Corporation v. GM Global Technology Operations LLC “utterly failed.” Rader argues the effort to clarify the obviousness inquiry in design patent law “failed because it was the wrong topic for en banc clarification.” Rader suggests that clarification “was completely unnecessary.” He believes that the Federal Circuit should have simply adjusted the Rosen-Durling test instead of wiping the slate clean and “starting from scratch.” Finally, Rader contends the effort failed because the new “ruling will make it more difficult to protect designs” as a whole. Check out our summary of the underlying opinion.
Michael Shapiro wrote an article for Bloomberg Law suggesting a Federal Circuit case is “set to shape false advertising law.” In the article, Shapiro argues that the case, Crocs, Inc. v. Effervescent, Inc., turns on whether Crocs Inc. can be “liable for false advertising after describing its foam technology as ‘patented’ over several decades when the company didn’t actually have such a patent.” Shapiro includes in his article a quote from Michael Mattioli, a professor at the Indiana University School of Law: “There’s this risk of misleading advertisements deceiving consumers or making consumers feel or think the government put its stamp of approval on a product and they think it’s safer or more effective than it is.” This case was argued in April, and afterwards we posted an argument recap.