On Friday, April 15, 2011, Good Sportsman Marketing, LLC (hereinafter “GSM”) and IP Holdings, Inc. filed a complaint in the U.S. District Court for the Eastern District of Texas (Civil Action No. 6:11-cv-00188) against Best Buy Co., Inc., BustBuy.com, LLC and Best Buy Stores, L.P. (hereinafter “Best Buy”) for patent infringement of U.S. D498,322.  The complaint states IP Holdings, Inc. owns the patent and GSM is the exclusive licensee of the patent.

In the complaint, GSM requests a jury trial and alleges Best Buy makes, imports, offers to sell and/or sells the RocketfishTM eReader Clip On LED light, which infringes the claimed design in U.S. D498,322.  The following is a reproduction of Chart 1 of the complaint, which shows the claimed design to the left and the alleged infringing product sold by Best Buy to the right.


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Apple is cracking down on companies selling accessories for its popular iPhone, iPod, and iPad devices, recently suing eForCity Corp. in the U.S. District Court for the Northern District of California for selling accessories for its devices without a license.  Apple also alleged that eForCity’s devices are of poor quality, noting consumer complaints about defective, battery-draining accessories.


eForCity attempted to dismiss the suit by alleging that Apple failed to identify each claim of each patent, each accused product for each asserted claim and the location where each claimed limitation is found within each accused product.


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Design Day 2011 was held on April 5 at the USPTO. Many members of our Industrial Designs group made the short walk to the USPTO and attended this annual event focused on U.S. design patents. Design Day 2011 was organized by a number of individuals, including Oblon Spivak’s Ed Tracy who is Vice-Chair of the Intellectual Property Owners Association (“IPO”) Design Rights Committee. A wide variety of speakers gave presentations, including USPTO officials, industrial designers, a judge from the Board of Patent Appeals and Interferences, and practitioners. The following article summarizes these presentations.

Robert Spear, Supervisory Patent Examiner for Technology Center 2900 ("TC 2900"), was again the Master of Ceremonies. Mr. Spear was also the Master of Ceremonies for Design Day 2010, which we discussed in a previous blog post. The theme for Design Day 2011 was “The World of Designs.”


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As a follow-on to our previous blog entry on the recent surge in the number of false marking lawsuits being filed, on March 15, 2011, the Federal Circuit in In Re BP Lubricants USA Inc., Misc. Doc. No. 960 (C.A.F.C., March 15, 2011) granted a petition for a writ of mandamus directing the United States District Court for the Northern District of Illinois to grant a motion to dismiss a complaint pursuant to the False Marking Statute, 35 U.S.C. § 292.  In granting this petition, the Federal Circuit held as a matter of first impression that the complaint did not meet Fed. R. Civ. P. Rule 9(b)’s particularity requirement.

In the complaint, Thomas Simonian, a patent attorney, had alleged that BP Lubricants USA Inc. (BP) continued to falsely mark certain CASTROL® branded bottles with design patent number D314,509 after the design patent covering the bottles had expired.  Simonian claimed that: “(1) BP knew or should have known that the patent expired; (2) BP is a sophisticated company and has experience applying for, obtaining, and litigating patents; and (3) BP marked the CASTROL products with the patent numbers for the purpose of deceiving the public and its competitors into believing that something contained or embodied in the products is covered or protected by the expired patent.”


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On February 2, 2011, VW’s European Community design registration for its second-gen modernized VW Beetle, Community Design no: 000111596-0001 (“CD’001”), was invalidated by the Invalidity Division of the Office for Harmonization in the Internal Market (OHIM), a European Union agency that oversees registration of trademarks and designs.

Figure 1 - Images from CD'001


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