Prepared by Cislo & Thomas LLP Attorney Mark D. Nielsen, Ph.D.
1. Nowadays, it is not unusual, especially in patent litigation, for litigation funding entities to pay legal fees for a patent owner pursuant to a litigation funding agreement. Typically, the litigation funding entity will also conduct extensive analysis of the merits of the case before deciding to provide funding. As would be expected, adversaries in litigation often attempt to obtain discovery about litigation funding agreements and related documents. In a recent decision from the Southern District of California, the Court held that litigation funding agreements may be relevant, but are protected from disclosure by the work product doctrine.
2. In a summary order by the Second Circuit in a trademark case, the Court affirmed a grant of summary judgment in favor of Apple and found that Apple’s ION-X trademark for its glass hardened screens on its Apple Watch did not infringe a glass company’s IONEX trademark for glass strengthening services. The Court found that the IONEX mark was weak because it described a glass strengthening process involving “ion exchange.” The Court determined that the goods/services were not the same – consumer products versus glass strengthening services. The Court also emphasized that Apple’s use of ION-X was typically done with the Apple name nearby as well, which would alleviate a likelihood of confusion. One takeaway from this opinion may be the concept that a “house mark” could help avoid infringement when the “house mark” is used in proximity to an allegedly infringing mark.
3. In a methodical Alice opinion out of the Northern District of Ohio, the district court declined to construe a claim term on a motion to dismiss, and ultimately determined that the patents-in-suit were directed to an abstract idea and did not claim patentable subject matter. The patents were directed to mathematical algorithms used to analyze DNA samples from multiple sources (referred to as probabilistic genotyping software). The plaintiff’s argument that the statistics and mathematical calculations were not solvable by humans and overcame a problem in the field of DNA analysis was rejected by the Court.
