@design_law@mastodon.social
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design_law

@design_law@mastodon.social

Art major turned law professor. Teaching #Patents, #DesignLaw & #CivPro at #SuffolkLaw.

Researching & writing about #DesignPatents. Currently thinking a lot about the #ScheduleA phenomenon.

Trying to make #PatentFedi happen.

Coauthor of Patent Law: An Open-Access Casebook https://patentlawcasebook.com/

When I'm not thinking about law, I'm usually studying languages (#español, #français & #svenska), reading novels, or watching Netflix.

#tfr

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design_law, to random
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Oof, no, two days is not enough notice. https://storage.courtlistener.com/recap/gov.uscourts.ilnd.458024/gov.uscourts.ilnd.458024.29.0.pdf

The answer is clearly no. Like in Granny Goose Foods, the time gap between the court’s decision to grant Plaintiff’s Motion for Entry of a Preliminary Injunction and the delivery of Notice of this motion for Defendant was less than two days. In addition, Defendant’s counsel was just retained on May 20, 2024, and no sufficient time was provided for him to gather and digest necessary information of the case. It was extremely challenging for both Defendant and its counsel to prepare for an opposition to this motion within such short period of time. Moreover, both the Defendant and its counsel had already established an expectation based on the received Notice of Case Motion that a hearing would be held on May 23 for presentation of the Motion for Entry of a Preliminary Injunction, and this expectation was completely shattered when they received the court’s order on May 22.

design_law, to random
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In copyright case (before Judge Kennelly) a group of defendants accuses the plaintiff of all kinds of misconduct, including bad faith withholding of TRO documents and judge shopping:

https://storage.courtlistener.com/recap/gov.uscourts.ilnd.457543/gov.uscourts.ilnd.457543.44.0.pdf

design_law,
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First, these defendants say that the plaintiff refused, in bad faith, to give them sealed docs until two days before a hearing:

design_law,
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Next, the defendants say the plaintiff engaged in judge shopping: "[T]his case is a refiled case of 24-cv-02910. Plaintiff failed to disclose this crucial information because Plaintiff dismissed the 24-cv-2910 case and refiled it as the current case as soon as that case was assigned to Judge Seeger."

design_law,
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This motion also includes a very interesting transcript from a May 20 hearing before Judge Kennelly: https://storage.courtlistener.com/recap/gov.uscourts.ilnd.457543/gov.uscourts.ilnd.457543.44.2.pdf

design_law,
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First, Judge Kennelly wants to know who the plaintiff is:

"[I]t's like you're saying your name is John Doe and you ain't going to tell me what your real name is. It doesn't work that way. So who is the plaintiff?"

THE COURT: So we're going to go back to my question because I don't have a -- it's like you're saying your name is John Doe and you ain't going to tell me what your real name is. It doesn't work that way. So who is the plaintiff? MR. MANGANO: Exactly, your Honor. If we have not provided that document, we can refile that immediately. THE COURT: Yeah, so you're telling me you haven't, because I couldn't find it. MR. MANGANO: Well, your Honor, we filed -- this is the tenth or eleventh case we filed, and this is the only time that this issue has been raised by anyone, so I'm assuming -- THE COURT: Yeah, well, maybe the other people didn't -- maybe the other judges didn't look at them carefully and maybe I don't always look at them carefully, but I did on this one, and it was largely because a bunch of defendants came in and appeared. So I'm having a kind of basic problem. If nothing else, we're not just talking about whether this case proceeds under seal. We're talking about whether I grant you a preliminary injunction. I'm not going to grant a preliminary injunction to somebody I don't know the name of, and I don't have a document that I can find, unless you can tell me right now where it is on the docket, that names the plaintiff in this case.

design_law,
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Then, the judge wants to know more about the asserted copyrights:

design_law,
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[Side note: There is no such thing as a "common law copyright" in the U.S., don't know what's going on there]

design_law,
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This part is interesting:

design_law,
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"Somebody didn't vet this stuff carefully enough. And honestly, I'll just be blunt about it, it was me when I granted the TRO."

design_law,
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Oof.

design_law, to random
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Bloomberg Law on , featuring some quotes from yours truly:

https://news.bloomberglaw.com/ip-law/new-design-patent-test-creates-uncertainty-over-whats-obvious

design_law,
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Another example of :

design_law,
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For those who don't know, design patent infringement is not the same as--nor inextricably linked with--counterfeiting.

See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4549909

design_law, to random
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Margin notes without context:

design_law, to random
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Look, if In re Rosen (1982) isn't too old to overrule, then neither is In re Zahn (1980).

design_law, to random
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Just out of curiosity, I looked up when the last Federal Circuit en banc design patent case, , was argued (6/2/08) and decided (9/22/08).

If were to follow the same timeline, we could expect a decision around late May.

design_law, to random
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Some more assorted thoughts on :

design_law,
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  1. I still don't get why some of the judges are all worked up about analogous arts. Or what the new approach really changes vis-a-vis Glavas.
design_law,
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  1. It amuses me to see the anti-KSR vitriol this decision has inspired in some utility patent dudes.
design_law,
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  1. One silver lining: At least the Federal Circuit didn't buy into the idea that we should just apply utility patent tests to design patent cases (because, among other reasons, we can't). See https://patentlyo.com/patent/2023/07/design-patent-exceptionalism.html
design_law,
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  1. In case this wasn't obvious from my previous writings: The way 103 was being applied to design patents (before yesterday) was bad.

Whether LKQ will make things better remains to be seen.

design_law,
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  1. One interesting question that remains is:

LKQ x CurviSil = ???

In other words, how does/should the fact that design patents protect applied designs (not designs per se) affect the scope of § 103 prior art, if at all?

design_law, to random
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Okay, so I don't use the f-word lightly but:

This is a shockingly frivolous design patent infringement claim:

https://storage.courtlistener.com/recap/gov.uscourts.ilnd.457552/gov.uscourts.ilnd.457552.36.0.pdf

Yes, it's in a case.

The TRO documents are still under seal so I don't know what the other claims look like.

But this is not inspiring confidence.

design_law,
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The test for design patent infringement asks whether the accused product has the same shape. NOT whether it embodies the same idea or larger design concept.

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