Week Ahead in Intellectual Property: August 2, 2021 – Reuters

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(Reuters) – Here are some upcoming events of interest to the intellectual property law community. Unless otherwise noted, all times are local, and court appearances are virtual due to the COVID-19 pandemic.

Monday, August 2

8:30 a.m. – U.S. District Judge Susan Illston will preside over a jury trial in San Francisco on Dr. Martens subsidiary AirWair International Ltd’s claims that Spanish fashion-retailer Inditex’s ITX USA LLC sells shoes that copy Dr. Martens footwear. AirWair sued ITX in 2019 for trademark infringement, trademark dilution, and unfair competition. ITX denied the claims, and argued among other things that the Dr. Martens trade dress isn’t eligible for trademark protection because the design is functional, generic, and doesn’t identify AirWair as its source.

The case is AirWair International Ltd v. Pull & Bear Espana SA, U.S. District Court for the Northern District of California, No. 3:19-cv-07641. For AirWair: Alexandra Whitworth of Bryan Cave Leighton Paisner. For ITX: Allan Anderson of Arent Fox.

10 a.m. – The U.S. Court of Appeals for the Federal Circuit will hear oral arguments in a dispute between Apple and Qualcomm. Apple is appealing decisions from the Patent Trial and Appeal Board denying its requests to invalidate parts of Qualcomm patents related to mobile technology, arguing they were obvious based on prior art. Qualcomm argues that the board’s decisions were supported by substantial evidence, and that Apple lacks standing because the parties already settled the underlying patent dispute.

The cases are Apple Inc v. Qualcomm Inc, U.S. Court of Appeals for the Federal Circuit, Nos. 20-1683, 20-1763, and 20-1827. For Apple: Lauren Degnan of Fish & Richardson. For Qualcomm: Jonathan Franklin of Norton Rose Fulbright US.

10 a.m. – The Federal Circuit will also hear oral arguments in a patent dispute between Adapt Pharma, Opiant Pharmaceuticals, and Teva about Adapt and Opiant’s narcotic overdose treatment Narcan. Teva successfully challenged the validity of patents covering the spray in New Jersey federal court last year in a lawsuit over Teva’s bid to create a generic version. Adapt and Opiant argue the patents shouldn’t have been found invalid as obvious because, among other things, the court failed to explain why an ordinary inventor would have been motivated to combine the prior art to come up with the treatment.

The case is Adapt Pharma Operations Ltd v. Teva Pharmaceuticals USA Inc, U.S. Court of Appeals for the Federal Circuit, No. 20-2106. For Adapt: Cate Stetson of Hogan Lovells US. For Opiant: Jessica Mackay of Green Griffith & Borg-Breen. For Teva: John “J.C.” Rozendaal of Sterne Kessler Goldstein & Fox, Liza Walsh of Walsh Pizzi O’Reilly Falanga.

Tuesday, August 3

10 a.m. – The Federal Circuit will also hear oral arguments on Apotex, Fresenius Kabi, and Mylan’s bid to invalidate patents covering Teva and Eagle Pharmaceuticals’ Bendeka chemotherapy drug. A Delaware federal court rejected claims that the patents were invalid last year in a dispute over a planned generic version. The appellants argue that the relevant parts of the patents are indefinite and obvious.

The case is Cephalon Inc v. Slayback Pharma Ltd, U.S. Court of Appeals for the Federal Circuit, No. 20-2134. For Teva’s Cephalon: David Berl of Williams & Connolly. For Eagle: Daniel Brown of Latham & Watkins. For Mylan: Nicole Stafford of Wilson Sonsini Goodrich & Rosati. For Fresenius Kabi: Imron Aly of Schiff Hardin. For Apotex: Steven Feldman of Hahn Loeser & Parks.

Wednesday, August 4

12 p.m. – The 9th U.S. Circuit Court of Appeals will hear Nomadix Inc’s challenges to rulings in its dispute with Guest-Tek Interactive over patent licensing. Nomadix sued Guest-Tek in Los Angeles federal court, alleging it underpaid for a license to Nomadix’s computer networking patents that they agreed to after resolving earlier litigation. Guest-Tek appealed the lower court’s decision to award Nomadix over $1 million in attorneys’ fees after finding that Guest-Tek’s request to invalidate the patents at the PTAB violated their licensing agreement, as well as its determination that the PTAB case was barred by the agreement’s forum-selection clause.

The cases are Nomadix Inc v. Guest-Tek Interactive Entertainment Ltd, 9th U.S. Circuit Court of Appeals, Nos. 20-55439 and 20-56008. For Nomadix: Douglas Muehlhauser of Knobbe Martens Olson & Bear. For Guest-Tek: Tom Warren of Warren Terzian LLP.

Thursday, August 5

9 a.m. – The 9th Circuit will also hear oral arguments in a copyright dispute between two meditation centers over a painting of nineteenth century spiritual philosopher Dasira Narada. Divine Dharma Meditation International accused the Institute of Latent Energy Studies of unlawfully copying its drawing of Narada in the painting, but a California federal jury found the painting made fair use of the drawing, and U.S. Magistrate Judge Douglas McCormick okayed the verdict. DDMI argues on appeal that the district court wrongly deferred to the jury’s findings, and that fair use “does not protect a defendant who copies a work to use in the same manner as the copyright holder, and to promote an organization that competes with the copyright holder’s.”

The case is Divine Dharma Meditation International Inc v. Institute of Latent Energy Studies, 9th U.S. Circuit Court of Appeals, No. 19-55264. For DDMI: Eric Boorstin of Horvitz & Levy, David Stroud of the David Stroud Law Office. For ILES: Kenneth Gross and Tom Shambaugh of the Law Offices of Kenneth I. Gross & Associates.

Know of an event that could be included in an upcoming Week Ahead in Intellectual Property? Contact Blake Brittain at blake.brittain@thomsonreuters.com

Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets. Reach him at blake.brittain@thomsonreuters.com

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