#itc patent litigation

[alwaysbewoke]

Earlier this year, the US International Trade Commission (ITC) ruled that Apple had infringed on two patents from medical device maker Masimo. As a result, the ITC said it would impose an import ban on the Apple Watch Series 9 and Ultra 2 starting December 26th. At the time it was hard to believe that this would actually come to pass: Apple gets sued all the time, and even when it loses, how often does it actually face dramatic consequences? Well, now would be one of those times. Experts say that, barring a Christmas miracle, it’s unlikely that Apple will find a way to escape the ban. Case in point, the company shocked everyone yesterday when it decided to preemptively pull the watches from its online store starting December 21st at 3PM ET. And after the 24th, they’ll disappear from Apple Stores, too. “I think Apple sees the writing on the wall and they’re preparing themselves,” says Ben Levi, a partner at Levi Snotherly & Schaumberg, which has experience litigating ITC disputes. It’s rare to see Big Tech lose — and with such tangible consequences at that. There are still ways that Apple can keep the watches on sale, but it’ll likely take a lot of waiting or a lot of money to make it happen.

[maruf123]

Many businesses believe that receiving a patent offers complete protection against contravention. However, when a patent is threatened, patent holders should take more forceful measures to protect their interests.

[design-law]

Does this sofa infringe this design patent? An ITC ALJ recently ruled that it does not (and that the patent is invalid per § 112).

[infinitylegalsolutions]

What Legal Services do Law Firms Provide near Netherlands?

The legal industry is the collection and integration of sectors that supply legal goods and services within the economic system.

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Among the services provided by the legal industry are the following:

Legal representation of one party's interests against another, whether or not before courts or judicial bodies, by members of the Bar or under their supervision

In civil situations, legal assistance and representation are available.

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On behalf of the government, legal advice and representation are provided.

The following legal papers require general counselling, advising, and/or preparation:

Articles of incorporation, partnership agreements, or other documents related to the formation of a business

Copyrights and patents

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Other civil law activities of notaries public Notaries, bailiffs, arbitrators, examiners, and referees are all examples of professionals who work in the legal field.

Courts of civil and criminal law, military tribunals, and the legal system's administration and operation

Execution of judgements and legal interpretations

Civil cases are arbitrated.

What are examples of legal services Netherlands

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Intellectual property

What's unique about our practise is that we're at the forefront of not just the high-tech, biotech, pharmaceutical, or new media industries, but also patent litigation, ITC Section 337 investigations, copyright, trademark, privacy, and domain names.

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Since the area's creation, our lawyers have been involved in crafting legislation, developing regulation, and assisting clients on contentious and non-contentious situations. We are also involved in thought leadership aspects of data protection and privacy, including study of legal and industry developments in the data protection and privacy sectors and their influence on our clients and our practise, with the help of our professional assistance lawyers. This has resulted in articles being published, webinars being held, and clients receiving strategic counsel.

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Legal and Compliance by Design

We understand that our clients are under growing resource constraints and need to simplify and streamline their processes. Our Legal Process Design professionals assist in the development of better, leaner process solutions for the management of legal services.

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Companies in the industrial manufacturing, insurance, financial services, and pharmaceutical/life science industries are among the sectors that are advised.

Our law firms in Amsterdam Netherlands have extensive experience working for regulators and in academics, and they have extensive knowledge of competition law. Cartels, merger control, commercial arrangements, compliance, EU sanctions, trade rules/export control, state aid, free movement, competition litigation, regulated sectors, and government and regulatory affairs are among the issues we handle in Netherlands Law Firms.

[agilenano]

Agilenano - News: Four Lawsuits, Corporate "Bullying," and an Alleged Pattern of Rampant Copying: The History of Nike v

Skechers image: TFL In the $62.5 billion-plus global sneaker market, the competition is fierce, the costs associated with the intensive research and development that goes into designing and manufacturing footwear are high, and the revenues that can be generated from single styles collections can race past the $1 billion mark for standouts like Nike’s Flyknits or adidas’ Stan Smith and the Superstar models. This means that the stakes are high amongst the market’s key players, and the chance that litigation will come into play among them is even higher.  Nike and adidas have long made headlines in connection with their history of legal battles, centering on their respective knitted technologies, for instance, which spawned an international battle beginning at the very same time as he London Olympics in 2012, and while there is likely no end in sight to the fights they wage against one another in their quest to outfit consumers across the globe, another rivalry has been spilling over into the courts: Nike versus Skechers.  In the lawsuit that it filed against Skechers in a federal court in California in September, Nike told the judge that the case was not the first of its kind, just as it was “not the first time Skechers has infringed its intellectual property rights.” Accusing Skechers of copying a number of its sneaker designs and thereby, infringing two of its utility patents, counsel for Nike declared that the case is actually “the fourth in a series of lawsuits that Nike, and its subsidiary Converse Inc., have filed against Skechers asserting a range of intellectual property rights.”  In filing suit against Skechers this fall, Nike has escalated another relatively recently-initiated fight against its Southern California-based rival, and added yet another matter to a larger – and clearly still growing – list of proceedings that Nike has said stem from Skechers’ larger pattern of allegedly “copying its competitors’ designs and using innovative technologies developed by others to gain market share instead of innovating its own designs and technologies.”  In Skechers’ mind, Nike’s latest litigation was the latest attempt by the $150 billion-plus sportswear giant to “stifle competition” and “bully” its rivals. This is what Skechers asserted in an open letter that it posted to social media in the fall of 2019. A timeline of their respective lawsuits – and other legal proceedings –  is as follows …  October 2014 Nike-owned Converse sued Skechers (and 30 or so other companies, including New Balance, Walmart and Ralph Lauren, among others, in individual cases) in federal court in Brooklyn, New York – in which it sought injunctive relief and monetary damages – and in an International Trade Commission (“ITC”) proceeding, seeking an order barring the defendants from importing the allegedly infringing footwear into the U.S. In both sets of cases, Converse alleged that the more than 2 dozen companies, including Skechers, were “mass-producing, distributing or selling sneakers that knock off the look of [its] iconic Chuck Taylor,” thereby running afoul of its trademark rights. As for Skechers, adidas claimed that the company’s Twinkle Toes and BOBS designs infringed its trademark – or more specifically, its trade dress – rights in various elements that make up the design of its famed Chuck Taylor sneakers, from its “distinctive” toe caps and toe bumpers to its striped midsoles. While the majority of the footwear companies on the opposite end of adidas’ civil suits and the ITC proceeding have settled quietly, the matters against Skechers are still underway.   January 2016 Nike knitted sneaker (left) & Skechers knitted sneaker (right) In the patent infringement suit that it filed in federal court in Portland, Oregon in early 2016, Nike asserted that a number of Skechers’ footwear – including its “Burst, Women’s Flex Appeal, Men’s Flex Advantage, Girl’s Skech Appeal, and Boy’s Flex Advantage” shoe styles – infringe at least eight of its Flyknit-specific design patents given that the "overall appearance of the designs of the Nike patents and the corresponding designs of Skechers' infringing shoes are substantially the same.”  According to its 14-page complaint, which was supplemented with nearly 200 pages of exhibits, counsel for Nike alleged that “Skechers intended to copy the designs covered by [its] patents” and did so to the point that “an ordinary observer would will perceive” the design of the two parties’ respective shoes to be the same. To prove its point, Nike cited an article from menswear site Complex, which “describes the Skechers’ Burst shoes as having ‘ripped off’ Nike’s ‘Flyknit’ design.’”  That case, which was transferred from a federal district court in Oregon to the U.S. District Court for the Central District of California in November 2017, is still underway, with Skechers filing its answer, as well as counterclaims of its own, early this year, asking the court to declare that it did not infringe Nike’s patents, and to declare that 12 of Nike’s patents are invalid “for failing to comply with the patent law provisions” of the Patent Act.  April and May 2016 In the wake of Nike’s design patent infringement lawsuit, Skechers retaliated against the Beaverton-based sportswear giant by filing inter partes review (“IPR”) petitions with the U.S. Patent Trial and Appeal Board (“PTAB”) in order to invalidate the eight design patents that Nike claims Skechers infringed in the aforementioned lawsuit. The basis for these filings? The individual patents do not meet the requirements for patentability (i.e., the inventions are not novel and/or non-obviousness).  In September and November 2016, the PTAB – which has the ability to refuse to institute an IPR proceeding if it finds that the challenger’s request lacks substantive merit – denied each of Skechers petitions, including one that pointed to Italian fashion brand Missoni’s zig-zag print designs, which date back to the 1950s, as existing long before Nike created its Flyknit designs and filed its corresponding patent applications, making it so that Nike’s knit-centric creations are not all that novel. (Novelty is a critical requirement for patent protection).  January 2017 Skechers filed several additional IPR petitions, including ones challenging Nike’s design patent-protected knitted “shoe uppers.”  This time around, while the PTAB again refused the majority of Skechers’ petitions, it agreed to consider two of them, both of focused on the validity of Nike’s design patents for sneaker soles (D723,781 and D723,783). Skechers claimed that the two “shoe sole” patents were invalid because they were “obvious” as a result of Nike’s own prior filings, including a European Community Design registration and two previously-filed utility patent applications. In June 2018, a 3-judge panel for the PTAB rejected Skechers invalidity challenges and upheld the validity of Nike’s patents.  September 2019 In a design patent infringement complaint filed in the fall, Nike upped the ante on the parties’ existing fight, and called foul on Skechers’ continued practice of allegedly manufacturing “Skecherized versions” of Nike sneakers, including blatant replicas of its VaporMax and Air Max 270 designs, paying specific attention to its rival’s alleged hijacking of its Air Sole technology, which Nike says that it spent decades creating.   According to its 37-page complaint, which was filed on September 30 in the U.S. District Court for the Central District of California, Nike alleges that in selling its Skech-Air Atlas, Skech-Air 92, Skech-Air Stratus, and the Skech-Air Blast models, among others, Skechers has “made, used, offered for sale, sold, and/or imported into the U.S.” shoes that have “the same overall appearance [as those protected by its] VaporMax patents,” and that infringe the some of the patents it holds for its Air Max 270 designs.  Skechers’ allegedly infringing sneakers “are substantially the same” as Nike’s patent-protected sneakers, the footwear titan asserts, so much so that “an ordinary observer will perceive the overall appearance of … the VaporMax [and the Air Max 270] shoes and the corresponding designs of the [Skechers] shoes” to be virtually the same.  In its January 7, 2020 response to Nike’s suit, Skechers denies that it has infringed Nike’s patents and asserts that even if it did, Nike’s patents are invalid, and thus, unenforceable. In counterclaims of its own, Skechers is seeking a formal judgment from the court declaring that the patents that Nike cites in its complaint are invalid and that it has not infringed the patents at issue. October 2019 In a separate patent lawsuit that it filed against Skechers just weeks later, Nike claims that Skechers is also on the hook for infringing two of its utility patents. According to Nike, Skechers’ Skech-Air Jumpin’ Dots and Skech-Air Mega shoes infringe claims contained in two of its utility patents – one that protects “an article of footwear” with an emphasis on the cushioning cavity that exists in the midsole of the shoe (Patent No. 10,098,412), and another that covers the “sole component [of a sneaker] and a method of manufacturing the sole component” (Patent No. 7,401,420).   “Without Nike’s authorization, Skechers has made, used, offered for sale, sold, and/or imported into the U.S.” shoes that infringe a number of claims protected by the 412 and 420 patents, according to Nike, as they include the same “sole structure incorporating a fluid-filled bladder and a reinforcing structure secured to the bladder,” “a cavity disposed between the upper and the outsole,” and a “plurality of protrusions [that] progressively decrease in height from the first protrusion to the forward-most edge of the article of footwear,” among other things.

Agilenano - News from Agilenano from shopsnetwork (4 sites) https://agilenano.com/blogs/news/four-lawsuits-corporate-bullying-and-an-alleged-pattern-of-rampant-copying-the-history-of-nike-v

[duaneodavila]

Sensible Settlement In The Patent World

(Photo by Justin Sullivan/Getty Images)

Recent events have reminded us that a sensible settlement can be reached in even the most high-stakes IP disputes. Last week, as two of the country’s leading IP trial lawyers delivered their opening statements in perhaps the most valuable (in terms of money at stake) IP-driven case in history, a surprise settlement was announced. Mid-opening statements, in a case with so much media (and investor) interest that the presiding judge had already temporarily banned tweeting from his courtroom during proceedings. Despite the courtroom drama, the companies involved — Apple and Qualcomm — had been negotiating behind the scenes for some time. In fact, the parties released a statement about the settlement almost immediately after it was first announced by the media. All in all, it was an amazing denouement to the latest contender for trial of the century in the IP world.

So what does this surprising turn of events have to teach us as IP lawyers? First and foremost in my view is that a sensible settlement can be reached in every case — no matter how involved, or how far along — at any time. Yes, I know that the best way to reach a favorable settlement is to prepare the case as if it were going to trial. At the same time, however, it is also important to realize that even the thorniest disputes can become ripe for settlement at any point, sometimes for reasons that have very little to do with the legal or factual issues in the dispute. This Apple-Qualcomm settlement is a case in point.

Some background first for readers who may be less familiar with the issues the parties were grappling with. For many years, Apple was a faithful Qualcomm customer, buying Qualcomm chips and paying a discounted patent licensing fee as a result. More recently, Apple started to balk at Qualcomm’s royalty rates, and partnered with Intel to make a competing chip for use in the iPhone. Faced with the prospect of losing its best customer — with respect to both chips and patent royalties — Qualcomm found itself forced to litigation against a recalcitrant Apple. Considering the stakes, it is not surprising that the situation devolved into a worldwide battle, across numerous forums including courts in Germany and China, as well as the ITC, PTAB, and district court in the U.S.

As the cases unfolded, some interesting things came to light. For one, Qualcomm was unafraid to bolster its cases by bringing patents acquired from other technology companies into the fray. For its part, Apple refused to back down at any stage, filing a host of IPRs against any patents asserted against it. Likewise, Apple demonstrated its resolve by refusing to blink when Qualcomm was successful in one trial in San Diego. At the same time, Qualcomm continued to persevere, even in the face of an FTC case complaining of improper licensing practices that also went to trial (and remains pending a decision) where Qualcomm itself was the defendant.

These events were all a prelude to the trial last week, where Apple and its contract manufacturers were prepared to square off against Qualcomm by putting Qualcomm’s licensing model and practices before a jury, for a determination of whether those practices were proper. As we now know, however, Apple faced a conundrum of a technical nature at the same time, one that threatened Apple’s ability to release a next-generation (5G) iPhone in a timely manner. More than anything else, the uncertainty around whether Apple’s chip partner Intel could make a 5G chip that would match Qualcomm’s offerings seems to have driven this settlement.  In fact, Intel announced it was suspending its 5G chip development efforts once the settlement was announced, as it became clear that Apple was back to partnering with Qualcomm for at least the next design cycle.

While the details of the settlement remain a bit murky, there is enough information out there to suggest that it was a win-win for all sides. For Apple’s part, it seems safe to assume that the pressure it put Qualcomm under allowed it to negotiate favorable financial terms for itself — at least more favorable than it would have gotten absent litigation. Further, Apple can proceed to finalize and release future iPhones free of the uncertainty of continued litigation with Qualcomm. Making things even better is the fact that Apple once again proved itself a dogged and formidable patent litigation opponent, enhancing the already-substantial deterrent effect created by Apple’s past patent litigation exploits.

On the other side, Qualcomm needed a settlement in the worst way. No business wants to lose its best customer, especially if the customer is also creating a roadmap for other companies to also back away from their existing relationship. As such, Qualcomm is undoubtedly cheering the fact that it brought Apple back into the fold, while also demonstrating to the rest of the industry that it itself is a litigation powerhouse. Especially important on that front is the fact that Qualcomm was able to get a trial win on its non-standard essential patents, giving weight to a portfolio that is less difficult to value than the company’s sizable SEP portfolio. Unsurprisingly, Qualcomm investors have reacted jubilantly to the settlement news, sending the company’s share price rocketing. While there is still some uncertainty for Qualcomm around the FTC case, as well as with respect to the post-settlement period relationship with Apple, for now the mood is a good one around the company vis a vis the stock market.

Ultimately, this latest patent battle between industry titans reinforces the fact that to every litigation problem there is a solution that makes sense for both sides. Sometimes arriving at that solution can take a lot of time and expense, but that does not diminish the possibility of eventually reaching a settlement that both sides can live with. Put another way, Apple-Qualcomm reminds us that sensible settlements are almost always available.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

Sensible Settlement In The Patent World republished via Above the Law

[technoeconomics1-blog]

The United States International Trade Commission (USITC) building in Washington, DC.  Enabling The Future (TM).  Technoeconomics (TM)

[ruthsulivan]

ITC Probes Altria Following R.J. Reynolds Complaint

Complaint Prompted International Investigation Into The Two Tobacco Giants

Unfortunately, the global vaping industry is under constant attack from big-tobacco titans, as they take massive market shares via aggressive marketing campaigns and hostile takeovers of smaller companies. Thankfully rather than continue on a sustained campaign to dismantle what was primarily a grassroots industry, these industry giants are starting to set their sights on each other.

The United States International Trade Commission has announced they will be launching an investigation into Altria and Philip Morris International. The probe comes following a previous complaint filed by competitor R.J. Reynolds months prior.

The complaint and subsequent investigation are the results of a patent dispute between the two nicotine behemoths. R.J. Reynolds alleges that certain elements used in Altria/PMI’s IQOS devices infringe on patents held for their own Glo vaporizer.

R.J. Reynolds is seeking a cease-and-desist against their competitor in an attempt to halt sales of the infringing product. The injunction would bar the import and sale of the product within the United States and would help establish a case and precedent for additional trials in international markets.

Cease And Desist

In what has been dubbed the opening shots fired in the great vape wars by tobacco titans, R.J. Reynolds is seeking an injunction against competing behemoth Altria over an alleged patent dispute. Analysts have speculated the action may be the result of larger cross-licensing negotiations between the two giants.

In the dispute, R.J. Reynolds is accusing Altria’s IQOS heat-not-burn device of infringing on patents used in their Glo vaporizer. Specifically, the complaint alleges that the IQOS device infringes on at least five copyrights pertaining to certain tobacco heating elements and other components used in the Glo vaporizer.

If awarded, the limited exclusion and cease-and-desist orders would bar Altria from importing and selling the product within the United States. In response to the allegations, the company has stated that the claims hold no merit, and the company is fully prepared and positioned to defend itself.

R.J. Reynolds is a subsidiary of British American Tobacco, which had recently filed its own lawsuit against Altria and Philip Morris International. The lawsuit, filed in federal court in Virginia, is similar in nature, although BAT is seeking preliminary and permanent injunctive relief in addition to treble damages.

Vaping Facts

Every year, the smoking epidemic is responsible for the deaths and illnesses of millions of people throughout the world. According to data from the Centers for Disease Control, there are currently an estimated 38 million smokers in the United States alone, of which over 16 million live with some form of smoking-related illness or disease.

Vaping continues to prove itself as the greatest tool we have at our disposal in combating the deadly worldwide smoking epidemic. According to a study published in the New England Journal of Medicine, researchers found that vaping was more effective than traditional nicotine-replacement therapies in helping people both quit smoking and remain tobacco-free.

Vaping is already responsible for saving thousands, and potentially millions, of lives throughout the world each year. According to a study from University College London, researchers found that vaping was responsible for helping up to 70,000 British smokers quit in a single year alone.

Not only has vaping been proven as an effective cessation aid, but it has also been demonstrated as a safer, reduced harm alternative to tobacco as well. Landmark research carried out by the UK Royal College of Physicians found that vaping is staggeringly 95% safer than smoking. Public Health England, the country’s top health agency, has routinely touted and defended this fact and advocates vaping as an effective form of smoking cessation.

There has also been no evidence of long-term risk to users of vapor products. According to a study published by the National Academy of Sciences, researchers found that not only is vaping less harmful than smoking, but there are no known long-term health effects associated with prolonged usage as well.

Conclusions

These legal disputes represent some of the last dying breaths of former tobacco titans. Rather than focus on innovation, these antiquated nicotine behemoths opt to focus on litigation instead.

It remains uncertain whether British American Tobacco, through R.J. Reynolds, will be successful in court. The U.S. International Trade Commission issued a statement saying that it has not made any decision on the merits of the case at this time and that the investigation is ongoing.

What are your thoughts regarding the International Trade Commission’s investigation into Altria? Do you believe R.J. Reynolds’ complaint has merit? Let us know what you think in the comments below, be sure to like us on Facebook and follow us on Twitter to receive all the latest vaping news!

(Image Credit – Pixabay – https://pixabay.com/images/id-945619/)

The post ITC Probes Altria Following R.J. Reynolds Complaint appeared first on ChurnMag.

[vapehk1]

British American Tobacco Initiates Patent Litigation against iQOS

British American Tobacco (BAT) said on Thursday that it has sued PMI’s companies in the US and Germany, alleging that the tobacco heating technology used in its iQOS device infringes its own patents.

British American Tobacco said it has filed two patent infringement lawsuits against PMI in the United States, one through the International Trade Commission (ITC) and the other in the United States…

[coulter67666129]

via Trademark Law

[neptunecreek]

The International Trade Commission Is Opening the Door to Abusive Patent Owners and Endangering U.S. Businesses

The International Trade Commission, or ITC, is a forum that’s meant to protect U.S. industries from unfair trade practices. But in recent years, the prime beneficiaries of the sprawling ITC haven't been American manufacturers, but patent owners, patent lawyers, and—you guessed it—patent trolls. 

The ITC is a quasi-judicial agency, that has the power to act a lot like a court. An administrative judge decides disputed issues, including allegations of patent infringement. When patent owners show imported items infringe, the ITC can ban those products from coming into the U.S., with “exclusion orders” that stop further importation.  

The ITC has been steadily expanding its patent enforcement powers for some years now. Patent owners have been treating it as a kind of super-powered patent court, because the exclusion orders they can get are so valuable. That's especially true now, since court injunctions that stop products from reaching consumer markets have become very hard to get in district courts.

Now, the ITC is expanding its powers again. That's why we've joined with R Street to file an amicus brief [PDF] telling the Supreme Court to stop the ITC from getting involved in domestic patent disputes that have nothing to do with foreign trade. 

In a recent case between Rovi and Comcast, the Commission ruled that it can issue exclusion orders against companies that don’t import anything at all. The ITC has held that Comcast's set-top boxes can infringe Rovi’s software patents, and be subject to an exclusion order—even though they’re imported by another company, and don’t infringe when they’re imported. What's more, to infringe the patent, Comcast users would have to be using a (non-imported) mobile app.

This case never should have gone to the ITC. It's a dispute between two U.S. companies about activities that occur in the U.S.—the installation and use of mobile apps on Comcast set-top boxes. It has nothing to do with unfair trade practices. Yet, the ITC could issue a sweeping exclusion order affecting millions of products.

If the Supreme Court doesn’t take up this case and reverse it, more patent owners—including patent trolls—will be able to drag U.S. companies into expensive ITC investigations for using basic computer and networking technology. Those companies could face exclusion orders forcing them to stop building and selling products and services that U.S. consumers want and need.

Increasingly, patent trolls are coming to the ITC, because they’re looking for the leverage they no longer can get from district court injunctions. In 2007, the Supreme Court decided eBay v. MercExchange [PDF]. That decision essentially stopped patent trolls that don’t make or sell anything from getting court injunctions that remove products from shelves. The business of patent trolling has continued since eBay, but because the high court put an end to automatic injunctions in patent cases (as EFF and others argued they should), trolls lost a huge amount of leverage.

Opening the ITC to patent trolls has been disastrous. It allows them to get extortionate leverage over U.S. consumers by getting within striking distance of powerful ITC exclusion orders, and thus allows them to get around limits that the Supreme Court imposed in eBay. Right now, the ITC is letting an Ireland-based patent troll move forward with a case that seeks to ban the importation of 80% of Android tablets, 86% of Windows tablets, more than 50% of Android smartphones, and 97% of premium Android smartphones. 

People who make, use, and sell basic computer equipment are already plagued by the threat of weak software patents. The last thing users and small businesses need is yet another venue where they can be subject to spurious, but expensive, patent claims. Patent owners shouldn’t be able to drag companies into an international trade court for purely domestic activities, like installing and using software. 

We hope the Supreme Court takes this case, and stops the ITC from wildly expanding its authority. After that, it’s high time for Congress to consider legislation that could actually fix this outdated, out-of-control trade court. Since 2010, ITC judges have held that patent trolls and their patent-licensing activity constitute a “domestic industry” eligible for protection and ITC action. That's right—the U.S. "industry" they're protecting is, in some cases, pure litigation.  That’s distorted markets while hurting productive businesses and their consumers. As we have said for years, Congress should reform the ITC to kick out patent trolls. 

from Deeplinks https://ift.tt/2OuNCaR

[agilenano]

Agilenano - News: Four Lawsuits, Corporate "Bullying," and an Alleged Pattern of Rampant Copying: The History of Nike v. Skechers

image: TFL

In the $62.5 billion-plus global sneaker market, the competition is fierce, the costs associated with the intensive research and development that goes into designing and manufacturing footwear are high, and the revenues that can be generated from single styles collections can race past the $1 billion mark for standouts like Nikes Flyknits or adidas Stan Smithand the Superstar models. This means that the stakes are high amongst the markets key players, and the chance that litigation will come into play among them is even higher.

Nike and adidas have long made headlines in connection with their history of legal battles, centering on their respective knitted technologies, for instance, which spawned an international battle beginning at the very same time as he London Olympics in 2012, and while there is likely no end in sight to the fights they wage against one another in their quest to outfit consumers across the globe, another rivalry has been spilling over into the courts: Nike versus Skechers.

In the lawsuit that it filed against Skechers in a federal court in California in September, Nike told the judge that the case was not the first of its kind, just as it was not the first time Skechers has infringed its intellectual property rights. Accusing Skechers of copying a number of its sneaker designs and thereby, infringing two of its utility patents, counsel for Nike declared that the case is actually the fourth in a series of lawsuits that Nike, and its subsidiary Converse Inc., have filed against Skechers asserting a range of intellectual property rights.

In filing suit against Skechers this fall, Nike has escalated another relatively recently-initiated fight against its Southern California-based rival, and added yet another matter to a larger and clearly still growing list of proceedings that Nike has said stem from Skechers larger pattern of allegedly copying its competitors designs and using innovative technologies developed by others to gain market share instead of innovating its own designs and technologies.

In Skechers mind, Nikes latest litigation was the latest attempt by the $150 billion-plus sportswear giant to stifle competition and bully its rivals. This is what Skechers asserted in an open letter that it posted to social media in the fall of 2019.

A timeline of their respective lawsuits and other legal proceedings is as follows

October 2014

Nike-owned Converse sued Skechers (and 30 or so other companies, including New Balance, Walmart and Ralph Lauren, among others, in individual cases) in federal court in Brooklyn, New York in which it sought injunctive relief and monetary damages and in an International Trade Commission (ITC) proceeding, seeking an order barring the defendants from importing the allegedly infringing footwear into the U.S.

In both sets of cases, Converse alleged that the more than 2 dozen companies, including Skechers, were mass-producing, distributing or selling sneakers that knock off the look of [its] iconic Chuck Taylor, thereby running afoul of its trademark rights. As for Skechers, adidas claimed that the companys Twinkle Toes and BOBS designs infringed its trademark or more specifically, its trade dress rights in various elements that make up the design of its famed Chuck Taylor sneakers, from its distinctive toe caps and toe bumpers to its striped midsoles.

While the majority of the footwear companies on the opposite end of adidas civil suits and the ITC proceeding have settled quietly, the matters against Skechers are still underway.

January 2016

Nike knitted sneaker (left) & Skechers knitted sneaker (right)

In the patent infringement suit that it filed in federal court in Portland, Oregon in early 2016, Nike asserted that a number of Skechers footwear including its Burst, Womens Flex Appeal, Mens Flex Advantage, Girls Skech Appeal, and Boys Flex Advantage shoe styles infringe at least eight of its Flyknit-specific design patents given that the "overall appearance of the designs of the Nike patents and the corresponding designs of Skechers' infringing shoes are substantially the same.

According to its 14-page complaint, which was supplemented with nearly 200 pages of exhibits, counsel for Nike alleged that Skechers intended to copy the designs covered by [its] patents and did so to the point that an ordinary observer would will perceive the design of the two parties respective shoes to be the same. To prove its point, Nike cited an article from menswear site Complex, which describes the Skechers Burst shoes as having ripped off Nikes Flyknit design.

That case, which was transferred from a federal district court in Oregon to the U.S. District Court for the Central District of California in November 2017, is still underway, with Skechers filing its answer, as well as counterclaims of its own, early this year, asking the court to declare that it did not infringe Nikes patents, and to declare that 12 of Nikes patents are invalid for failing to comply with the patent law provisions of the Patent Act.

April and May 2016

In the wake of Nikes design patent infringement lawsuit, Skechers retaliated against the Beaverton-based sportswear giant by filing inter partes review (IPR) petitions with the U.S. Patent Trial and Appeal Board (PTAB) in order to invalidate the eight design patents that Nike claims Skechers infringed in the aforementioned lawsuit. The basis for these filings? The individual patents do not meet the requirements for patentability (i.e., the inventions are not novel and/or non-obviousness).

In September and November 2016, the PTAB which has the ability to refuse to institute an IPR proceeding if it finds that the challengers request lacks substantive merit denied each of Skechers petitions, including one that pointed to Italian fashion brand Missonis zig-zag print designs, which date back to the 1950s, as existing long before Nike created its Flyknit designs and filed its corresponding patent applications, making it so that Nikes knit-centric creations are not all that novel. (Novelty is a critical requirement for patent protection).

January 2017

Skechers filed several additional IPR petitions, including ones challenging Nikes design patent-protected knitted shoe uppers.

This time around, while the PTAB again refused the majority of Skechers petitions, it agreed to consider two of them, both of focused on the validity of Nikes design patents for sneaker soles (D723,781 and D723,783). Skechers claimed that the two shoe sole patents were invalid because they were obvious as a result of Nikes own prior filings, including a European Community Design registration and two previously-filed utility patent applications. In June 2018, a 3-judge panel for the PTAB rejected Skechers invalidity challenges and upheld the validity of Nikes patents.

September 2019

In a design patent infringement complaint filed in the fall, Nike upped the ante on the parties existing fight, and called foul on Skechers continued practice of allegedly manufacturing Skecherized versions of Nike sneakers, including blatant replicas of itsVaporMax and Air Max 270 designs,paying specific attention to its rivals alleged hijacking of its Air Sole technology, which Nike says that it spent decades creating.

According to its 37-page complaint, which was filed on September 30 in the U.S. District Court for the Central District of California, Nike alleges that in selling its Skech-Air Atlas, Skech-Air 92, Skech-Air Stratus, and the Skech-Air Blast models, among others, Skechers has made, used, offered for sale, sold, and/or imported into the U.S. shoes that have the same overall appearance [as those protected by its] VaporMax patents, and that infringe the some of the patents it holds for its Air Max 270 designs.

Skechers allegedly infringing sneakers are substantially the same as Nikes patent-protected sneakers, the footwear titan asserts, so much so that an ordinary observer will perceive the overall appearance of the VaporMax [and the Air Max 270] shoes and the corresponding designs of the [Skechers] shoes to be virtually the same.

In its January 7, 2020 response to Nikes suit, Skechers denies that it has infringed Nikes patents and asserts that even if it did, Nikes patents are invalid, and thus, unenforceable. In counterclaims of its own, Skechers is seeking a formal judgment from the court declaring that the patents that Nike cites in its complaint are invalid and that it has not infringed the patents at issue.

October 2019

In a separate patent lawsuit that it filed against Skechers just weeks later, Nike claims that Skechers is also on the hook for infringing two of itsutility patents. According to Nike, SkechersSkech-Air Jumpin Dots and Skech-Air Mega shoes infringe claims contained in two of its utility patents one that protects an article of footwear with an emphasis on the cushioning cavity that exists in the midsole of the shoe (Patent No. 10,098,412), and another that covers the sole component [of a sneaker] and a method of manufacturing the sole component (Patent No. 7,401,420).

Without Nikes authorization, Skechers has made, used, offered for sale, sold, and/or imported into the U.S. shoes that infringe a number of claims protected by the 412 and 420 patents, according to Nike, as they include the same sole structure incorporating a fluid-filled bladder and a reinforcing structure secured to the bladder, a cavity disposed between the upper and the outsole, and a plurality of protrusions [that] progressively decrease in height from the first protrusion to the forward-most edge of the article of footwear, among other things.

Agilenano - News from Agilenano from shopsnetwork (4 sites) https://agilenano.com/blogs/news/four-lawsuits-corporate-bullying-and-an-alleged-pattern-of-rampant-copying-the-history-of-nike-v-skechers

[angrycollectordaze-me-blog]

Essay代写：337 surveys in the United States

下面为大家整理一篇优秀的essay代写范文- 337 surveys in the United States，供大家参考学习，这篇论文讨论了美国的337调查。337调查是指美国国家贸易委员会根据美国《1930年关税法》第337节，对不公平的进口行为进行调查，并采取制裁措施的做法。现行337条款历经了内容修订和完善，ITC的权力不断扩大，337调查规制的范围逐步明确，对权利人的保护作用有所加强，其救济措施也更加多样化。

"337 investigation" refers to the practice of the us national trade commission investigating unfair import practices and imposing sanctions under section 337 of the us customs act of 1930. "Section 337", a total of over current tax law "America 1930 years ago, the trade reform act of 1974, the trade agreements act of 1979, tariffs and trade law in 1984, the comprehensive trade competition law in 1988 and the 1994 Uruguay round agreements for revising and improving the content, increasing the power of the ITC," 337 investigation ", gradually clear the scope of the regulation on the protection of the right holder was strengthened, the remedies are more diverse. As the threshold for 337 investigations continues to be lowered, more and more American companies are using it to contain imports and hurt competitors. The amendment of section 337 makes it an important legal means for the United States to control import trade.

The 337 investigation launched by the us against China has the following characteristics: first, the products involved are gradually concentrated in high-tech products. As of 2018, the most investigated products filed by Chinese companies against the us are mechanical and electrical patented products. Second, light industrial products; Pharmaceutical and medical equipment, steel and chemical industry products are also involved. Specific speaking, in a 2018 survey of 337 products involving Chinese enterprises fail mugs, solid-state drives, fuel pump, rope skipping, ink cartridges, LED lighting, LED display, blood cholesterol detector, all receive the arrow box, headset earpiece, water purifiers, carburetor, socket cover plate, height adjustable desk, unmanned aerial vehicles, strength training system, LTE and compatible with 3 g mobile communication equipment, electronic cigarettes, electronic cigarette smoke bombs, etc. Second, patent infringement is the main complaint, but in some cases, it creatively puts forward such rare points as anti-monopoly, anti-circumvention and trade secret. Third, the number of enterprises actively responding to lawsuits is increasing. A total of 84 Chinese companies were brought to the ITC in 2018; Of these, 39 Chinese companies have chosen to respond. Due to the complex litigation procedures, expensive lawyers and the great differences between the relevant legal system of 337 investigation in the us and China, most of the Chinese enterprises involved in the early stage chose to give up the litigation and their products were excluded from the us market by the USITC. With the increase in the number of china-related 337 investigations and the accumulation of experience in responding to lawsuits, Chinese enterprises are fully aware of the serious consequences of losing the 337 investigation, and the number of enterprises actively responding to lawsuits is gradually increasing. From 2015 to 2018, the proportion of Chinese companies responding to lawsuits increased year by year.

The "337 investigation" in the United States interfered with the normal production of domestic enterprises, and the enterprises suffered heavy losses. Due to the relatively weak foundation of China in the industrial fields with high value-added rate of science and technology, the lack of innovation ability, and the weak awareness of intellectual property rights, the United States could easily file lawsuits against China in the relevant fields. If the ruling is lost, companies suffer huge losses as a result of the bulk of their exports being stockpiled at ports or held up at American customs.

Chinese companies' response to the 337 survey should start from their own perspective. First of all, to improve the probability of success, it is necessary to master the patent weapon and enhance the enterprise's intellectual property awareness. In recent years, though, many domestic enterprises increasingly attach importance to the core technology research and development, and invest a large amount of manpower and material resources and financial resources, but due to the neglect of intellectual property rights and related legal issues is not yet clear, the core of the current our country patent still few, relatively backward technology, there are not enough attach great importance to the protection of patent application and problems of enterprise, by a foreign company registered patent and trademark events are occurring, and Chinese companies in such events shown inadequate experience to cope with the situation, and the weakness of the law on congenital, make Chinese enterprises frequently "337 investigation" by the United States. Secondly, to do a good job before the export of relevant preparations. Specifically, in the design and manufacture products for export before, to fully understand the current situation of protection of intellectual property rights in the field of industry, and to avoid infringing the existing patent property rights, possible should any infringement be found, it shall immediately take measures to use the replacement of generic methods to avoid involving infringement problems. In addition, when selling products in the exporting country, patent search should be carried out in advance to fully understand the current situation of competitors in the exporting country, pay attention to the market dynamics and consumer demand in the exporting country and region, and be ready to deal with various emergencies at any time. Thirdly, when responding to litigation, "public interest" can be reasonably used as a relief means. The "337 investigation" provides that when the ITC decides whether or not to grant injunctive relief to the plaintiff in the 337 investigation, the public interest shall by law be taken into account. The ITC may withhold injunctive relief from the plaintiff if it adversely affects the public interest. The following several kinds of typical case occurs, enterprise can consider increasing the legal defense, based on public interests for the ITC or court deny or adjust ban: when the product is diversified products, the function of the patents involved in the cover only a tiny part of the products involved ban will lead to excessive relief, will be involved in multiple products and the products in a large number of legal part out of the market, is not conducive to competition in the market and damage the interests of consumers. Faced with patent cockroaches and a host of companies being sued, an injunction would drive many out of business, severely weaken competition and threaten the entire industry. SEP holders improperly use the ITC or court to demand the sale of an injunction, prevent competitors from entering the market, and harm fair competition and consumer interests. In the above cases, enterprises should not only carefully prepare legal defense, but also attach importance to public relations and lobbying work, and pay attention to the logic of language and the infectivity of story in terms of skills. These approaches and skills will play an important role in seeking public interest relief. As the public interest relief is still in the stage of development and improvement, Chinese enterprises should consider comprehensive support strategies when dealing with complicated situations involving intellectual property issues. For example, they should take the initiative through domestic intellectual property litigation and anti-monopoly investigation to facilitate the reconciliation between the two parties.

As for the government, the Chinese government can launch a dialogue mechanism on issues related to the 337 investigation, and through consultation, modify unreasonable factors in article 337 to reach a consensus on reducing and solving the 337 investigation on Chinese enterprises. Since the introduction of article 337, it has been questioned by the international community. Up to now, many Chinese and foreign scholars believe that the establishment of article 337 and its procedures go against the principles of free trade, national treatment and prohibition of abuse of power in the agreement on trade-related aspects of intellectual property rights. Therefore, as a member of the WTO, the Chinese government can deeply study the trade discriminatory factors in article 337, actively use the WTO dispute settlement mechanism to safeguard its own interests, and file a complaint against the discriminatory trade practices of article 337 to force the United States to modify article 337. At the same time, it actively seeks mutual assistance and cooperation with other WTO member states, resource sharing and discussing countermeasures, and seeks solutions to restrict the effectiveness of article 337. If necessary, a WTO dispute settlement appeal may be attempted.

From the third aspect, it can be considered that relevant departments and industry associations can take the lead to establish an alliance organization with key industries of leading enterprises that may be sued in the future to deal with possible intellectual property disputes. The alliance shall have the following functions: take the alliance as the leading role, study the related intellectual property rights involved in the industry, lay a foundation for the layout of intellectual property rights of enterprises in the industry, and supervise and guide enterprises to respond to lawsuits well; Take the alliance as a whole to conduct related intellectual property negotiations with foreign enterprises or related organizations. The alliance comes forward to carry out patent authorization negotiation, patent exchange or cross-licensing negotiations with enterprises with patents. With the alliance as the core, we will strengthen the patent layout of related industries, focus on carrying out targeted research and development activities, and provide leverage for the ongoing patent authorization, licensing and exchange negotiations of the alliance.

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[ruthsulivan]

BAT Sues PMI, Claims Patent Infringement

Lawsuit The Latest In Ongoing Dispute Between Big Tobacco Giants

Big tobacco has desperately attempted to adjust to an ever-changing and evolving marketplace over the last decade, to mixed results. Between acquisitions of established vapor companies, to the research and development of new smokeless technologies, these companies are doing all they can to remain viable in a market that’s rapidly moving away from combustible tobacco.

British American Tobacco (BAT) has filed a legal challenge against Philip Morris International (PMI) over patents covering their respective “heat-not-burn” devices, Glo and IQOS. BAT alleges that PMI is using patented technology from its Glo device in PMI’s new IQOS product.

PMI has previously sued BAT back in 2018 over an alleged patent breach in Japan, although this lawsuit remains ongoing. The company claimed that BAT’s Glo product infringed on two of their Japanese patents and sought an injunction against the sale of their product in Japan, as well as damages of nearly $1 million.

Meanwhile, BAT filed two patent infringement claims against PMI in the U.S., one with the International Trade Commission, and one in Virginia federal court, seeking an injunction against importing IQOS as well as remedies for any potential damages caused. PMI launched IQOS in the United States back in late 2019, vowing to vigorously defend itself against any potential litigation.

Patent Infringement

British American Tobacco has filed a series of legal challenges against fellow big tobacco giant Philip Morris International, over an alleged patent infringement regarding their respective “heat-not-burn” devices, Glo and IQOS. BAT alleges that PMI used Glo’s patented heating blade technology in the IQOS device, and is seeking an order to halt the import of the product as well as remedies for damages caused.

The company filed two separate patent infringement claims in the United States, one through the International Trade Commission, and one in the Virginia federal court. The two cases will run separately, and the courts’ decisions are independent of one another.

“If we win we may be able to get an ITC exclusion order blocking the importation of IQOS into the U.S. by Philip Morris unless they agree to take a license to our patents,” said BAT spokesman Will Hill. “We have seen media reports that BAT has filed legal actions but have not had the opportunity to evaluate its allegations. We can say, however, that we will vigorously defend ourselves,” a Philip Morris spokesperson responded.

Unlike vaporizers, the Glo and IQOS heat-not-burn devices utilize tobacco-filled sticks that when heated, generate an aerosol containing nicotine. Phillip Morris had launched the IQOS device in the U.S. last year, and recently announced plans to roll out the product in Germany as well. IQOS currently remains the market leader in the heat-not-burn sector.

Vaping Facts

Vaping may be the greatest tool we have at our disposal to help combat the deadly worldwide smoking epidemic. According to a study published in the New England Journal of Medicine, researchers found that vaping was more effective than traditional nicotine-replacement therapies in helping people quit smoking and remain tobacco-free.

Vaping is already saving thousands, and potentially millions, of lives throughout the world each year. Research from University College London found that vaping was responsible for helping up to 70,000 British smokers quit in a single year alone.

Not only is vaping an effective cessation aid, but it has also been demonstrated as a safer, reduced harm alternative to tobacco. Landmark research carried out by the UK Royal College of Physicians found that vaping is staggeringly 95% safer than smoking.

Not only is vaping an effective smoking cessation aid and proven reduced harm alternative to tobacco, but there has been no evidence of long-term risk to users of vapor products. Research from the National Academy of Sciences found that vaping is not only less harmful than smoking but that there are no known long-term health effects associated with prolonged use as well.

Moving Forward

These lawsuits represent the latest in a series of desperate moves by dying multinational corporations who failed to adapt to clearly defined trends in the marketplace over a decade’s time. Much like big alcohol, big tobacco failed to respond to shifts in consumers’ tastes and preferences, opting instead to squeeze as much profit out of their remaining customer base as possible.

These once powerful companies are now scrambling to adapt, turning to hastily enacted and poorly timed acquisitions of established companies and engaging in frivolous litigation among themselves, much like big alcohol. As the market rapidly continues to move away from tobacco and toward vapor products, these once-grand companies will continue to flounder and deserve every moment of their slow demise.

What are your thoughts regarding the lawsuit brought against PMI by BAT? How do you believe the ongoing legal dispute between these two companies will ultimately pan out? Let us know what you think in the comments below, don’t forget to like us on Facebook and follow us on Twitter to receive all the latest vaping news as well!

(Image Credit – Pixabay – https://pixabay.com/images/id-1223280/)

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