Archive: February 2022

1
Does Reputation Ensure Distinctive Character of a Trade Mark? Not Necessarily
2
F45 Cops a Punch in Further Australian Decision on Patents for Computer Implemented Inventions
3
Name and Shame On Instagram – The ASA’s New Tactic For Non-Compliant Influencers
4
Federal Circuit Rules AAPA in Challenged Patent Does Not Qualify as Prior Art Under 35 U.S.C § 311(b) but Signals AAPA Can Play Role in §103 Analysis

Does Reputation Ensure Distinctive Character of a Trade Mark? Not Necessarily

The General Court of the European Union (EGC) handed down its decision on the invalidity proceeding brought against the well-known Moon Boot 3-D trade mark registration. The GC took a close look into the distinctiveness of 3D signs, providing new guidance on the subject.

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F45 Cops a Punch in Further Australian Decision on Patents for Computer Implemented Inventions

The scorecard against computer implemented inventions being patentable in Australia took another hit this week when the Federal Court revoked two innovation patents from global fitness giant, F45 in F45 Training Pty Ltd v Body Fit Training Company Pty Ltd (No 2) [2022] FCA 96. Justice Nicholas of the Federal Court held that F45’s innovation patents, which involved a computer implemented system for configuring and operating one or more fitness studios, were invalid and even if they were valid, rival fitness franchise Body Fit Training did not infringe them.

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Name and Shame On Instagram – The ASA’s New Tactic For Non-Compliant Influencers

In June 2021, the UK’s Advertising Standards Authority (ASA) began naming and shaming certain influencers for “consistently failing to disclose ads on their Instagram accounts, despite repeated warnings and help and guidance on sticking to the rules” on their website (see here).

The name and shame list was created as a result of the ASA Influencer Monitoring report, which found inconsistent ad disclosure by influencers on Instagram through Stories, posts and Reels, with the disclosure rules being followed only 35% of the time (see here). The influencers listed on the webpage are subject to enhanced monitoring and remain on there for a minimum of three months.

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Federal Circuit Rules AAPA in Challenged Patent Does Not Qualify as Prior Art Under 35 U.S.C § 311(b) but Signals AAPA Can Play Role in §103 Analysis

On 1 February 2022, the Federal Circuit released its decision in Qualcomm v. Apple1 providing guidance on the treatment of Applicant Admitted Prior Art (AAPA) under 35 U.S.C § 311(b) in Inter Partes Review (IPR) proceedings. In doing so, the Federal Circuit vacated two IPR decisions2 of the Patent Trial and Appeal Board (PTAB) where the PTAB had found several claims of U.S. Patent No. 8,063,674 (“the ’674 patent”) unpatentable under 35 U.S.C. § 103. In doing so, the Federal Circuit remanded the case to allow the PTAB to address the specific issue of whether the AAPA cited by Apple improperly formed the “basis” of Apple’s § 103 challenge or was simply ancillary.

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