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SerendIPity: Dykema's Intellectual Property Law Blog

Intellectual Property Law Blog

News and Analysis of Legal Issues Affecting Intellectual Property



Supreme Court’s Ruling on Damages Creates Uncertain Future for Design Patents

In an opinion handed down on December 6th, 2016, the Supreme Court continued its tradition of unanimously overruling the Federal Circuit while chipping away at the power of patents. While the decision itself was brief and uncomplicated, it characteristically left the most difficult questions to be debated in the lower courts. Read More ›

Effective Immediately, DTSA Creates Private Trade Secret Right of Action

On May 11, 2016, President Obama passed into law the Defend Trade Secrets Act (“DTSA”) after a successful bipartisan effort to pass the bill through the House and the Senate, previously reported by Dykema HERE. Effective immediately, the new federal law permits courts to grant injunctive relief, statutory and punitive damages, and in extraordinary circumstances, civil seizure of misappropriated trade secrets. Read More ›

Senate Approves Bill to Expand Federal Trade Secret Misappropriation Statute to Private Parties

On April 4, 2016, the Senate unanimously passed a bill to amend 18 U.S.C. § 1836 to create a federal private cause of action for trade secret misappropriation and misuse. See S. 1890, 114th Cong. (2d Sess. 2016). The proposed “Defend Trade Secrets Act of 2016” (the “Bill”) would transform Section 1836, which currently criminalizes trade secret misappropriation and economic espionage, to provide remedies for trade secret misappropriation related to any product or service involved in interstate or foreign commerce. The new Bill would also allow the “civil seizure” of any misappropriated trade secret matter on an ex parte basis. Read More ›

Another Patent Survives Motion to Dismiss Amid §101 Skepticism

Following a wave of decisions previously covered by Dykema, Judge Robinson of the United States District Court for the District of Delaware issued another decision holding that a software-based patent passes muster post-Alice. In Treehouse Avatar LLC v. Valve Corp., Civ. No. 15-427-SLR (D. Del. Mar. 22, 2016, Order), Judge Robinson opined on the trajectory of software patents and cautioned how Section 101 analysis might be going too far at the pleadings stage.  Read More ›

Not So Fast: Pushback to Invalidate Patents Absent Further Review May be a Growing Trend

In March 2016, a number of district courts have expressed hesitation to decide 35 U.S.C. § 101 patentability too soon. Although each court offered its own interpretation of how to proceed, the underlying message was clear: there is growing concern some courts have ruled on the validity of certain software and other computer-implemented technologies prematurely post-AliceRead More ›

Law360: 3 Reasons IP Cases Still Need General Trial Lawyers

Dykema trial lawyer Aaron Charfoos was recently interviewed by IPLaw360 on the continuing role of the generalist trial attorney in patent litigations. The article can be found at

Court Rules Humor is Not Louis Vuitton’s Bag

On January 6, 2015, the United States District Court for the Southern District of New York awarded summary judgment against self-described “active and aggressive” trademark enforcer Louis Vuitton, and in favor of My Other Bag, Inc. (“MOB”), a producer of canvas tote bags which parody luxury handbags. In doing so, the Court admonished Vuitton and other prominent trademark owners to “take a joke.” Read More ›

The Federal Circuit Rules § 2(a) of the Lanham Trademark Act is Unconstitutional

Coming as no surprise to anyone who attended or read the transcript of the en banc oral argument hearing in the case of In re Tam, No. 14-1203 (Fed. Cir. Dec. 22, 2015), the Federal Circuit Court of Appeals has ruled § 2(a) of the Lanham Trademark Act of 1946 violates the First Amendment on its face. The nine-judge majority limited its holding to § 2(a)’s prohibition on the registration of marks which “may disparage… persons, living or dead, institutions, beliefs or national symbols.” In doing so, the Court expressly overruled its longstanding precedent to the contrary, In re McGinley, 660 F.2d 481 (C.C.P.A. 1981). Two judges would uphold the constitutionality of § 2(a) in its entirety, and another would hold that § 2(a) is facially constitutional, but as applied to Mr. Tam in this particular case, violated his First Amendment rights. Read More ›

Judge Gilstrap’s New Standing Order Eliminates Requirement to Seek Leave Prior to Filing Alice Motions, Introduces New Certification Requirement

On November 10, 2015, Judge Rodney Gilstrap of the United States District Court for the Eastern District of Texas issued a new standing order eliminating the requirement to seek leave before filing motions to dismiss on grounds that a patent is invalid under 35 U.S.C. § 101. A significant influx of these so-called “Alice motions” were filed in the Eastern District of Texas following the Supreme Court’s decision in Alice Corp. Pty Ltd. V. CLS Bank Int’l, 134 S. Ct. 2347 (2014). Judge Gilstrap’s previous Docket Control Order required that parties file letter briefs prior to filing Alice motions. Read More ›

The Storm Before the Calm Part II

On October 30, 2015, in our post “The Storm Before the Calm,” we predicted that the number of patent infringement suits filed in district courts would be way up in November. We believed that we would see this spike, in part, as plaintiffs rushed to file their lawsuits ahead of the December 1, 2015, changes to the Federal Rules. These changes eliminated Form 18, the bare bones patent litigation complaint, that patent plaintiffs have heavily relied on in recent years. From now on, plaintiffs will need to include enough detail to ensure that their claims are “plausible.” Read More ›