IP Wise

Making Business Wise About Intellectual Property Litigation

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Proposition 65: Compliance Issues

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As of August 30, 2018, big changes went into effect for Proposition 65.  These changes include new warning obligations for Internet and catalog sellers, a limited “safe harbor” for certain retailers, and a great deal of ambiguity and uncertainty.  There are two issues we are seeing again and again, and which are worth special attention.

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Toxics In Packaging: Are You Protected?

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As many direct marketers wrestle with the new Proposition 65 regulations (set to go into effect on August 30, 2018), there are other state laws relating to product safety as to which they should be aware.  We address here the nineteen (19) states that have enacted so-called “toxics in packaging” laws that regulate the presence...

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B&I Wins High-Profile Alabama Tax Dispute Over “Kill Quill” Rule

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On June 14, 2018, the Alabama Tax Tribunal entered an Opinion and Final Order voiding a sales/use tax assessment issued against Newegg Inc. by the Alabama Department of Revenue under the Department’s economic nexus regulation, Ala. Admin. Code r. 810-6-2-.90.03. The regulation and Newegg’s appeal received considerable attention because the rule targeted of out-of-state retailers...

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TC Heartland Venue Argument Was Not “Available” Before TC Heartland Opinion Issued

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In this week’s episode of Patent Venue, when is a change in the law a change in the law? On May 22, 2017, the Supreme Court issued its opinion in TC Heartland, reversing the Federal Circuit and reaffirming that a corporate defendant can only be sued for patent infringement either in its state of residence...

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A Sovereign Shield

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A previously-little known loophole in the patent system, which permits Native American tribes to assert sovereign immunity as defense in inter partes review (IPR) is getting a great deal of attention these days, following an unpopular deal by Allergan to shelter its patents with the Saint Regis Mohawk Tribe. In brief, Allergan transferred a set...

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“Place of Business” Means Place of Business, Says Federal Circuit

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Previously, on Patent Venue: May 22, 2017: The Supreme Court issues its opinion in TC Heartland, returning to the rule of law that a corporate defendant can only be sued for patent infringement either in its state of residence or a judicial district in which alleged acts of infringement have occurred and the business has...

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Oil States Versus The Administrative State

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The Supreme Court has now heard from the petitioner in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC. At issue is not only the fate of inter partes review of patents by the Patent Trial and Appeal Board, but possibly the ability of administrative agencies to review and retract their own erroneous decisions....

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B&I Partners Assist Microsoft In Ending Patent Case

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Partners Stacy Stitham and Peter Brann, acting as local counsel, assisted Microsoft in obtaining a dismissal with prejudice of a patent lawsuit filed in the District of Maine. While the federal lawsuit was pending, Microsoft invalidated the patent in the Patent and Trademark Office (PTO), which was then affirmed on appeal. The plaintiff sought a...

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Understanding the Exceptional Trademark Case

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The buzz in the (IP) blogosphere this week relates to Romag Fasteners v. Fossil, Inc., in which the Federal Circuit joined the Third, Fourth, Fifth, Sixth, and Ninth Circuits in concluding that fee recovery under the Lanham Act follows the standards of the Supreme Court’s decision in Octane Fitness. Translation: The same standard governing recovery...

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Skepticism from the Heartland

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Last week we reported on the initial efforts to apply the Supreme Court’s opinion in TC Heartland, with particular interest in what impact that case may end up having on the business of patent litigation in the Eastern District of Texas. As we noted, on first read, TC Heartland seemed to herald the end of the...

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