By now, most of us are familiar with the Wordle fairy tale. As recounted in The New York Times and throughout the media, Josh Wardle created the game for his partner and released it in October 2021. On November 1, 2021, ninety people were playing Wordle. Almost two months later, that number was up to 300,000. And, by the end of January 2022, millions were playing. The New York Times Company then swooped in, purchasing Wordle for “an undisclosed price in the low seven figures.”
Many patent specifications describe the prior art before setting forth the claimed invention. This “applicant admitted prior art” can be used for prior art purposes in litigation. See, e.g., PharmaStem Therapeutics, Inc. v. ViaCell, Inc., 491 F.3d 1342, 1362 (Fed. Cir. 2007) (“Admissions in the specification regarding the prior art are binding on the patentee for purposes of a later inquiry into obviousness.”).
Over the years, spirited disputes have occasionally arisen involving a family name and an alcoholic beverage. There have been cases concerning wine makers (Jordan Vineyard & Winery v. Ehren Jordan Wine Cellars, Case No. 3:01-cv-03647-WHA (N.D. Cal.); Taylor Wine Co. v. Bully Hill Vineyards, Inc., 569 F.2d 731 (2d Cir. 1978)) and bourbon distillers (National Distillers Products Corp. v. K. Taylor Distilling Co., 31 F. Supp. 611, 614 (E.D. Ky. 1940)), among others. The latest such case is being litigated in Kentucky, the heart of bourbon country, and concerns the use of a well-known name in the bourbon industry.
The Federal Circuit recently held in Novartis Pharmaceuticals Corp. v. HEC Pharm Co., Ltd et.al., (Jan. 3, 2022), over a vigorous dissent, that the written description requirement may be met by the trial testimony of expert witnesses even though the specification is silent on the claim limitation at issue. This decision is important for patent prosecutors and litigators.