The Proper Scope of Comparison Prior Art – The Federal Circuit Speaks
September 21, 2023

The analysis for design patent infringement differs from utility patent infringement, because, notwithstanding the Federal Circuit’s “Ordinary Observer” test that controls the analysis (see Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 676 (Fed. Cir. 2008) (en banc)), it can often simply seem like an exercise of “you know it when you see it.” 

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Supreme Court Vacates $96 Million Damages Award Based on Holding That Lanham Act Only Reaches Domestic Uses in Commerce
September 18, 2023

For a case in which all nine Justices agreed to vacate a jury award based on trademark infringement, the Supreme Court’s decision in Abitron Austria GmbH v. Hetronic Int’l, Inc., No. 21-1043, 2023 WL 4239255 (June 29, 2023), spawned a sharp disagreement between two camps of Justices.  The decision also leaves unanswered some key questions with which lower courts will have to grapple. 

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Supreme Court Holds That Registering to Do Business in a State Can Subject a Corporation to General Personal Jurisdiction
September 12, 2023

The Supreme Court returned this past term to a subject that it analyzes every few years: personal jurisdiction.  The wrinkle the Court wrestled with in Mallory v. Norfolk S. Ry. Co., No. 21-1168, 2023 WL 4187749 (June 27, 2023), was the constitutionality of a Pennsylvania corporate registration statute.  The law in question required a non-resident corporation that registers to do business in Pennsylvania to submit to “general personal jurisdiction” in the state for any suit brought against it, regardless of the parties’ and the case’s connection to Pennsylvania.  A sharply divided Court held that the statute did not offend due process.

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