Latest 3 Cases This Week: Ezaki Gliko Kabushiki Kaisha v. Lotte International America Corp. (3d Cir.), AntennaSys, Inc. v. AQYR Technologies, Inc. ...

“Might as Well Carry a Purse with That Mask, Joe”: COVID-19, Toxic Masculinity, and the Sad State of National Politics

JOANNA L. GROSSMAN, LINDA C. MCCLAIN

SMU Dedman School of Law professor Joanna L. Grossman and Boston University law professor Linda C. McClain comment on COVID-19, toxic masculinity, and the state of national politics today. Grossman and McClain contrast President Trump’s reckless bravado that endangers the lives of Americans with the empathy of Democratic presidential nominee former Vice President Joe Biden’s in asking people to be patriotic by doing their part by wearing masks to protect other Americans.

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Should Department of Justice Lawyers Defy William Barr?

AUSTIN SARAT

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on an open letter addressed to the 100,000 professionals working in the U.S. Department of Justice and published by Lawyers Defending Democracy. In the letter, more than 600 members of the bar from across the United States call on their DOJ colleagues to refrain from “participating in political misuse of the DOJ in the elction period ahead.” Sarat argues that the letter rightly recognizes that Attorney General Barr’s blatant partisanship endangers the integrity of the DOJ itself and its role in preserving the rule of law.

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Ezaki Gliko Kabushiki Kaisha v. Lotte International America Corp.

Court: US Court of Appeals for the Third Circuit

Docket: 19-3010

Opinion Date: October 8, 2020

Judge: Bibas

Areas of Law: Business Law, Intellectual Property, Patents, Trademark

Ezaki, a Japanese confectionery company, makes and sells “Pocky,” thin, stick-shaped cookies that are partly coated with chocolate or flavored cream. The end of each is left partly uncoated to serve as a handle. In 1978, Ezaki started selling Pocky in the U.S. and began registering U.S. trademarks and patents. It has two Pocky product configurations registered as trade dresses and has a patent for a “Stick Shaped Snack and Method for Producing the Same.” In 1983, the Lotte confectionery company started making Pepero stick-shaped cookies partly coated in chocolate or flavored cream. Pepero “looks remarkably like Pocky.” In 1993-1995, Ezaki sent letters, notifying Lotte of its registered trade dress and asking it to cease and desist. Ezaki took no further action until 2015, when it sued, alleging trademark infringement and unfair competition, under the Lanham Act, 15 U.S.C. 1114, 1125(a)(1)(A). Under New Jersey law, it alleged trademark infringement and unfair competition. The Third Circuit affirmed summary judgment in favor of Lotte, holding that because Pocky’s product configuration is functional, it is not protected as trade dress. Trade dress is limited to features that identify a product’s source. Patent law protects useful inventions, but trademark law does not.

AntennaSys, Inc. v. AQYR Technologies, Inc.

Court: US Court of Appeals for the Federal Circuit

Docket: 19-2244

Opinion Date: October 7, 2020

Judge: O'Malley

Areas of Law: Intellectual Property, Patents

Two named inventors of a patent, directed to portable antenna positioners, assigned their interests to their respective employers, AntennaSys and Windmill. Windmill acquired an exclusive license to AntennaSys’s one-half interest in the patent. Windmill formed GBS to hold its interests in the patent and agreed to pay AntennaSys a royalty; if Windmill fails to meet certain minimum sales requirements, its exclusive license to AntennaSys’s interest becomes non-exclusive. The agreement provides that, if Windmill loses its exclusivity, either party may commence a lawsuit against “third-party” infringers. Windmill failed to meet those requirements; its license to AntennaSys’s one-half interest is now non-exclusive. AntennaSys sued AQYR, Windmill’s wholly-owned subsidiary, for infringement. Following claim construction, AntennaSys conceded that it could not prevail. The court entered judgment for the defendants. The Federal Circuit vacated. On remand, the district court should resolve factual issues pertaining to AntennaSys’s ability to bring its infringement claim against AQYR: whether Windmill waived the right to object to AntennaSys’s failure to meet 35 U.S.C 262's prerequisite that each joint owner of a patent may make, use, offer to sell, sell, or import the patented invention, without the consent of or accounting to other owners; whether GBS or Windmill holds or retains an ownership interest in the patent; and whether AntennaSys’s infringement suit is barred because of an express or implied license from the real patent owner to AQYR.

GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc.

Court: US Court of Appeals for the Federal Circuit

Docket: 18-1976

Opinion Date: October 2, 2020

Judge: Pauline Newman

Areas of Law: Drugs & Biotech, Intellectual Property, Patents

GSK’s 067 patent for “carvedilol” issued in 1985. The FDA initially approved carvedilol for treating hypertension; the product was marketed with the brand name Coreg®. Scientists continued to study carvedilol. In 1997, the FDA approved carvedilol for the additional treatment of congestive heart failure. GSK’s 069 patent issued in 1998, describing and claiming treatment with a combination of carvedilol and an angiotensin-converting enzyme (ACE) inhibitor, a diuretic, and digoxin. The patent was listed in the FDA’s Orange Book. In 2003, the FDA approved this Coreg® combination for use by patients suffering from left ventricular dysfunction following myocardial infarction. In 2002, Teva applied for FDA approval of generic carvedilol, certifying in the ANDA that its product would not be launched until the 067 patent expired and that the 069 patent was “invalid, unenforceable, or not infringed.” Teva received FDA tentative approval “for treatment of heart failure and hypertension,” to become effective in 2007. GSK, in 2003, sought reissue of the 069 patent, 35 U.S.C. 251. The 000 patent issued in 2008. In 2011 the FDA required Teva to amend its carvedilol label to be “identical in content to the approved [GSK Coreg®] labeling.GSK sued for infringement. A jury found the 000 patent valid and infringed, assessed damages, and found the infringement willful. The district court granted Teva judgment of non-infringement as a matter of law. The Federal Circuit reinstated the jury verdicts as supported by substantial evidence.