Prepared by Cislo & Thomas LLP Attorney Mark D. Nielsen, Ph.D.
1. The Federal Circuit Court of Appeals seems to have opened the door for courts to take judicial notice of web captures from the Wayback Machine internet archive for purposes of prior art. This is good news for patent challengers. Patent owners, however, should scrutinize the captures to make sure, to the extent possible, the accuracy of the capture dates and such.
2. Over the past several years, a number of states passed laws targeting non-practicing entities sending “bad faith” patent demand letters weak on the merits and demanding money. Targets of such letters have asserted claims against the sender of the letters, and the senders have begun challenging these law as preempted by federal law, unconstitutional, or the like. In a recent opinion out of the Middle District of North Carolina, the Court upheld North Carolina’s “bad faith” patent demand letter law as constitutional (not violating the First Amendment or Equal Protection Clause) and not preempted by federal law. The takeaway is that if you represent a non-practicing entity, make sure you have facts to support your demands, and understand that these “bad faith” demand letter laws are here to stay.
3. Anytime I can talk about the intersection (cheers!) of hockey and IP law, it is a good thing! Following up on a case we previously discussed (Takeaway No. 1), Judge Staton of the Central District of California granted summary judgment to the ECHL on the San Diego Gulls’ breach of contract and misrepresentation claims. The crux of the summary judgment ruling was that it was undisputed that the ECHL did not transfer a logo to the Gulls that became the subject of a copyright lawsuit against the Gulls by the creator of the logo. The Gulls sued the ECHL did not have clear title to the logo, and it had to pay legal fees and a settlement to the creator of the logo. By finding that the logo was not part of the IP transfer from the league to the Gulls, the Gulls’ claims could not stand. To put it in hockey parlance, the Gulls (the American Hockey League affiliate of the Anaheim Ducks) were “shut out,” which as an L.A. Kings fan is fine with me.