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In a highly publicized decision of over a year ago, Judge Swain of the U.S. District Court of the Southern District of New York ruled in favor of the luxury retailer Tiffany and Co., deciding that Costco Wholesale Corp. willfully infringed Tiffany’s trademark. Judge Swain’s initial ruling against Costco allowed Tiffany to take Costco before a jury to seek damages, including recovery of Costco’s profits from the sale of the diamond rings, statutory damages, and punitive damages. After several delays, the jury finally met at the end of September for “Phase I” of the trial during which they decided (1) the amount of Costco’s profits and statutory damages under the Federal Lanham Act, and (2) whether Tiffany was entitled to punitive damages.
The Trans-Pacific Partnership was the latest in a series of multination international agreements aimed at reducing trade barriers and promoting global free trade. However, the subject matter scope of this agreement and the secrecy with which it was negotiated have engendered deep suspicions from a variety of groups regarding whether its goal is truly free trade or whether there are more nefarious motivations behind it. And with the election of Donald Trump, these efforts have apparently amounted to nothing.
Since the Supreme Court decided Alice Corp. v. CLS Bank Int’l in 2014, patent practitioners and the courts alike have struggled to find clarity in the patent eligibility framework of 35 U.S.C. § 101. For the Federal Circuit in particular, applying the two-step framework set forth in Mayo v. Prometheus and Alice with any consistency has proven difficult, as the lines between abstract and non-abstract ideas, between step one and step two of the framework, and between eligibility (§ 101) and patentability (§§ 102, 103, or 112) have grown fainter.
September 16, 2016, marked the fourth anniversary of the effective date for the invalidity proceedings before the Patent Trial and Appeal Board created by the America Invents Act (AIA). These new AIA proceedings, particularly covered business method reviews and inter partes reviews, had an almost immediate impact on litigation defense strategies in the financial services and technology fields. The impact in the bio/pharma field was slower at the beginning, but the number of AIA petitions for review of bio/pharma patents has steadily increased over the past four years.
MBHB snippets Alert - December 6, 2016

On December 6, 2016, the Supreme Court ruled unanimously, in an opinion by Justice Sotomayor, that an award of total profits for infringing a design patent need not be calculated based only on the end product sold to an ordinary consumer. More particularly, in the case of a multicomponent product, the damages award may be calculated based on subcomponents of the end product. In Samsung v. Apple, the Supreme Court applied this rule to reverse Apple’s $400 million damages award against Samsung.
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