AmiCOUR IP Group News and Opinions

Not So Fast:
Google ITA Software Deal
May Not Fly

Bed Bug Troubles:
Martha Stewart Living
Accused of Infringement

Licensing Legend:
Bad Times Hit
"University Patents"

Bow Tie Bonanza:
Brooks Brothers Ruling
Opens Marking Floodgates

Welcome to the AmiCOUR IP Blog.  We invite your comments.  Past Issues.

September 10, 2010 - The Justice Department is concerned whether Google's proposed acquisition of renowned ITA Software might harm the airline industry booking data feeds relied upon by numerous travel industry booking systems.  This blog reported on Google's announced deal in July.

September 9, 2010 - A Northbrook Illinois patent owner filed suit against Martha Stewart Living Omnimedia for allegedly manufacturing, importing and selling a 6 sided mattress cover advertised to block "dust mites and bedbugs" sold under the description "Martha Stewart Collection Allergy Wize."  JAB Distributors, LLC is seeking relief based upon alleged infringement of its patent number 7,552,489 titled "Mattress encasement for preventing bed bug escapement via a zipper opening."  While the claim language states "escapement from said mattress encasement," Stewart's product advertising claims, "blocks dust mites and bedbugs." The case seems to be a sign of the times in more ways than one, even leaving some wondering if expert entomologists and equally novel demonstratives may someday help a jury determine whether the designer bedbugs are prevented from "checking in" or "checking out." Within hours after the filing, AM radio 890 WLS ran the story, which promises to draw the attention of mainstream media and evening talk show hosts.  Bed bug problems made national news just over a week ago when pop singer Lauren Hildebrandt complained of a bed bug infestation at an unnamed luxury hotel in New York.

September 3, 2010 - Industry legend Competitive Technologies, often known to licensing pioneers as the old "University Patents," found its stock delisted and without its CEO this week. The licensing pioneer was founded over 40 years ago to help leading universities commercialize their discoveries and is  widely credited for proving the viability of the commercial technology transfer model. Its shares on the "pink sheets" closed at $1.41 today, but in prior years "CTT" stock traded at over $20 on the AMEX. Early success stories included licensing patents covering the Materna prenatal vitamin, the lasers that helped create JDS Uniphase, and the homocysteine test. A few years ago, the United States Supreme Court considered hearing a case on patentability issues surrounding homocysteine testing. During more successful times, Competitive Technologies was training ground for a number of licensing professionals who are IP industry leaders today.  Approximately three years ago, the incumbent  management team lost a hostile proxy challenge.

September 2, 2010 - The act of leaving expired patent numbers on its bow ties landed Brooks Brothers in Manhattan's Federal Court facing a hungry plaintiff seeking the up to $500 per item relator's penalty to split with the US Government. Although the clothier initially had the case dismissed, Brooks Brothers' legal standing challenge was overturned on appeal. The plaintiff in a false marking case is assigned rights from the government and only has to show that the public is harmed by a defendant's conduct. The US Court in the Federal Circuit ordered the case to proceed, all under the watchful eye of other waiting relators.
Although the ruling is significant, many false marking plaintiffs have faced challenges addressing the necessary burdens to show intent. This remains a factor in Brooks Brothers, where the ruling stated, "We remand for the court to address the merits of the case, including Brooks Brothers' motion to dismiss pursuant to Rule 12(b)(6) "on the grounds that the complaint fails to state a plausible claim to relief because it fails to allege an `intent to deceive' the public—a critical element of a section 292 claim—with sufficient specificity to meet the heightened pleading requirements for claims of fraud imposed by" Rule 9(b). Standing Op., 615 F. Supp. 2d at 251 n.1."  With public sympathy on the side of defendants who inadvertently failed to remove outdated notices, attorneys still believe the "critical" requirement to prove intent may ultimately derail the train of cases.  At least for now, anyone can make an unpatented bowtie and anyone can bring a false patent marking case under 35 USC § 292.