Recent Developments
The Recent Developments page contains brief student-written case summaries of recent IP and anti-trust cases in Maryland, the 4th and Federal Circuit Courts of Appeal, and the U.S. Supreme Court. The page will be updated weekly.
Medrad, Inc. v. MRI Devices Corp., 401 F.3d 1313 (Fed. Cir 2005).
In a March 16, 2005 opinion, the Federal Circuit held that a patent's claim language and specification as well as expert testimony are to be used to determine the meaning of a claim. At issue was the term “a substantially uniform magnetic field” in connection with magnetic resonance imaging.
Medrad, Inc. held U.S. Patent No. 6,396,273 for overlapping radio frequency coils used in magnetic resonance imaging. The problem with using overlapping coils is that the overlap region would result in a magnetic field twice as large. The invention sought to make the magnetic field uniform over the region and would provide greater image uniformity. Medrad sued a competitor, MRI Devices Corp., for infringement of the patent.
The U.S. District Court for the Western District of Pennsylvania held that using overlapping radio frequency coils was well known and anticipated by prior art. MRI Devices' motion for partial summary judgment was granted. Medrad appealed to the Federal Circuit which affirmed the District Court's decision. In interpreting a “substantially uniform magnetic field”, the court held it to mean “a field that is sufficiently uniform to obtain useful MRI images.”
The claims were interpreted in view of one of ordinary skill in the art of MRI technology and also the patent at issue. The ordinary meaning of a term cannot be looked at in a vacuum. It must be viewed in light of the written description and patent prosecution history.
Susan Pittinger
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 380 F.3d 1154 (9th Cir. 2004)
On March 29, 2005, the campaign against illegal file sharing of music and videos was finally brought to the U.S. Supreme Court, when oral arguments were held on the Grokster case. In considering this important issue, the Supreme Court will be forced to create a balance between ensuring that service providers that knowingly and intentionally enable widespread theft of intellectual property are liable for their misconduct, and making sure not to restrain the development of legitimate products.
The Grokster case examined the issue of whether distributors of peer-to-peer file-sharing computer networking software could be held either contributorily or vicariously liable for copyright infringements by their users. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 380 F.3d 1154, 1157 (9th Cir. 2004). In affirming the district court's partial grant of summary judgment, the Ninth Circuit ultimately concluded that the defendants were not liable under either form of infringement. Id.
In peer-to-peer distribution networks, rather than making the information available for access on a central server, each computer makes information available to every other computer in the network, thus making each computer both a server and a client. Id. at 1158. The defendants utilize the "supernode" model of peer-to-peer file-sharing network, where select computers on the network are designated as indexing servers, and the user initiating a file search connects with the most easily accessible supernode, which conducts the search of its index and supplies the user with the results. Id. at 1159. Users of the software can then share digital audio, video, picture, and text files, some of which are copyrighted and shared without authorization, while others are not copyrighted or copyrighted where the copyright owners have authorized software users in peer-to-peer file-sharing networks to distribute their work. Id. at 1160.
The Copyright Owners argued that the defendants were liable for the copyright infringement of the software users under two theories of secondary copyright liability: contributory copyright infringement and vicarious copyright infringement. Id.
A defendant is found liable under the contributory copyright infringement, if there is (1) direct infringement by a primary infringer, (2) knowledge of the infringement, and (3) material contribution to the infringement. Id. The first element was undisputed here. Id. As to the knowledge requirement, the court employed the Supreme Court decision in Sony Corp. of America v. Universal City Studios, Inc., that a claim of contributory copyright infringement could be defeated if the defendant showed that the product was "capable of substantial" or "commercially significant noninfringing uses." 464 U.S. 417, 440-42 (1984). The court agreed with that district court's undisputed finding that the software distributed by each defendant was capable of substantial noninfringing uses. Grokster, 380 F.3d at 1161. Even if there were a 10% level of legitimate use, as proposed by the Copyright Owners, the volume of use would indicate a minimum of hundreds of thousands of legitimate file exchanges. Id. at 1162. In regard to the material contribution requirement, the Software Distributors could not provide the "site and facilities" for infringement, and did not otherwise materially contribute to direct infringement. Id. at 1163. The record showed that infringing messages or file indices did not reside on defendants' computers, and the defendants did not have the ability to suspend user accounts. Id. The users of the software, not the Software Distributors, were the access providers that created the file storage and index maintenance. Id.
The three elements required to prove vicarious liability for copyright infringement are (1) direct infringement by a primary party, (2) a direct financial benefit to the defendant, and (3) the right and ability to supervise the infringers. Id. at 1164. In this case, direct infringement and direct financial benefit, via advertising revenue, were undisputed. Id. The "right and ability to supervise" describes a relationship between the defendant and the direct infringer that often, though not always, is characterized by a formal licensing agreement between the two. Id. In this case, the evidence in the record does not show that either of the defendants had the ability to block access to individual users. Grokster, 380 F.3d at 1165. In addition, none of the communication between defendants and users provided a point of access for filtering or searching for infringing files, since infringing material and index information do not pass through defendants' computers. Id. Furthermore, the court held that evidence of the right and ability to supervise the network does not automatically make one liable for vicarious copyright infringement. Id. at 1165-66.
Lastly, the Copyright Owners attempted to use the “blind eye” theory, asserting that Software Distributors, such as Grokster and StreamCast, should not be able to escape vicarious liability by turning a "blind eye" to the infringement of their users, and such behavior should give rise to liability. Id. at 1166. The court determined that because there is no separate "blind eye" theory or element of vicarious liability that exists independently of the traditional elements of liability, this claim should be included in the vicarious copyright infringement claim, and should fail for the same reasons. Id.
With a Supreme Court ruling on this case expected to occur sometime in July, it will be interesting to see whether the Court will follow in the footsteps of the Sony decision and rule in favor of the service providers or find a way to put its foot down on the illegal downloading of copyrighted material without harming innocent companies that create useful products.
Ryan Saltzman
Adventis, Inc. v. Consolidated Property Holdings, Inc
Consolidated Property Holdings, Inc. ("CPHI") is the owner of a national chain of “Big Lots” discount stores which registered the word mark “BIG LOTS” in August of 1997. In June of 2001, Adventis, Inc. registered “The BIG Lot!” to identify its online used car classifieds service. At approximately the same time, CPHI began using two new marks, “BIG LOTS!” and “BIG !LOTS”, in a new advertising campaign. However, the U.S. Patent and Trademark Office denied the registration of these new marks, citing a likelihood of confusion with the Adventis mark. CPHI sent a cease and desist letter to Adventis, who then filed suit in U.S. District Court claiming federal and common law trademark infringement. CPHI counter-claimed for federal and common law trademark infringement, dilution, unfair competition and false designation of origin.
During discovery, both parties admitted that their respective marks were likely to cause confusion and each submitted motions for summary judgment. To the surprise of the parties, the District Court found that the marks in question were not confusingly similar and denied both motions as to the federal infringement claims. In ignoring the parties' admissions of similarity, the Court found no infringement under the federal act by either party. The Court did not consider the other claims and the summary judgement order was certified for interlocutory appeal.
On appeal, the Fourth Circuit reversed the summary judgement order. In its reasoning the Court first stated that to show federal trademark infringement a party must show 1) that it has a valid trademark and 2) the competing mark is likely to cause confusion among consumers. The Court stated that it traditionally regarded questions dealing with likelihood of confusion as a factual determination. Furthermore, courts are typically bound by the factual admissions of the parties; therefore the District Court erred in producing a judgment that was inconsistent with the parties' factual admissions. In effect, the District Court was limited to determining which party had priority of use of a valid trademark.
This decision allows parties in a federal trademark infringement suit to force the trial court to consider only one of the two elements of infringement. This will allow for a further narrowing of the issues to be tried, which could save litigation time and expenses. In addition there may be strategic advantages to admitting to a likelihood of confusion. This limiting of the court forces the outcome to be all or nothing -- one party will get exclusive control over the mark. This could cause some parties to gamble on priority of use instead of battling over an often hard to prove likelihood of confusion.
Bill Blake
Thatcher and Deckers Outdoor Corp. (Successor in Interest to Mark Thatcher) v. Kohl's Department Stores, Inc., 397 F. 3d 1370 (Fed. Cir. 2005).
The Federal Circuit, in an opinion by Judge Mayer, affirmed that a patent owner's successor-in-interest, not named in a consent judgment arising from a patent infringement claim, does not have standing to claim patent infringement damages under the consent judgment.
Mark Thatcher owned patents for developing the TEVA ® sandal. In 1997, Thatcher sued Kohl's Department Store (“Kohl's”) and Associated Footwear, Inc., Kohl's supplier of Bay Area Trader Sandals, for “patent infringement, copyright infringement, trade dress infringement, and unfair competition by Kohl's.” Thatcher and Kohl's entered into a consent judgment agreeing that Kohl and its successors-in-interest were permanently enjoined from selling sandals employing the TEVA ® trade dress. Neither Thatcher's complaint nor the consent judgment made reference to Thatcher's successor-in-interest.
In November 2002, Deckers Outdoor Corporation (“Deckers”) acquired all intellectual property rights for TEVA ® patents and trade dress, including the right to all judgements related to the intellectual property assets. In 2003, Decker discovered Kohl violated the 1997 consent judgment and filed a claim, as Thatcher's successor-in-interest, “seeking to: (1) impose sanction for civil contempt; (2) coerce obedience to the consent judgment; and (3) compensate Deckers for losses.” The District Court for the Northern District of Illinois, following U.S. v. Armour & Co., held Deckers did not have standing. 402 U.S. 673 (1971) (reasoning that a consent judgement is not enforceable by those who are not parties to it).
The issue before the Court of Appeals was whether Thatcher could assign his right of enforcement of the consent judgment to another party in the absence of express language to do so. Deckers argued that the consent judgment should be freely assignable to the successor-in-interest if the consent judgment language does not expressly prohibit such assignment. The Court of Appeals, applying 7th Circuit and Illinois contract law, focused on the writing within the four corners of the consent judgment. See Ferrell v. Pierce, 743 F.2d 454, 461 (7th Cir. 1984) (holding that a consent judgment is a form of a contract); see also Air Safety v. Teachers Realty Corp., 185 Ill. 2d 457 (holding that an agreement, when reduced to writing, must be presumed to speak the intention of the parties who signed it). Yet, the unique circumstances under which parties agree to a consent judgment make consent judgments different from contracts. See Armour, 402 U.S. at 681-82. (explaining that hostile litigants compromise their contested legal positions when forming a consent judgment).
Both Thatcher and Kohl's chose the consent judgment over litigation; giving up something each party might otherwise have won in litigation in the interest of time- savings. Therefore, the consent judgment must be evaluated for assignments only within its four corners. Thatcher did not expressly extend his rights under the consent judgment to a successor-in-interest, yet the defendants expressly extended their obligations under the consent judgment to their successors-in-interest. Thatcher's silence equates to an express intent to exclude assignment language in the consent judgment. The Court of Appeals, therefore, affirmed the District Court's judgment in denying Decker standing in a suit arising from Thatcher's consent judgment.
Linda Sigillito Hutchison
Philips v. ITC
Industry standards are, in principle, a good idea. The premise is that an industry's leaders come together in order to devise a standard way of dealing with a common industry problem. Examples are all around us: the U.S. electric plug, Fire Safety Standards, and Recordable Compact Discs (“CD-R”). Frequently, the standards developed read on one or more patents belonging to the industry leaders. Under such circumstances, all patent holders typically agree to combine all relevant technologies under a common license, which will have reasonable and non-discriminatory terms (a “RAND” license). Therefore, an industry player may license all the technology involved in a standard by agreeing to the RAND license, and paying a reasonable royalty fee. However, there is an important antitrust question regarding whether all the patents required to license a standard are essential (or relevant) to implementing that standard. Furthermore, a patent holder involved in the standard making process, may be subjected to the affirmative defense of patent misuse when trying to assert an infringement claim on a patent that reads into the standard in question. This is precisely what happened to U.S. Philips Corporation of Tarrytown, NY.
A case currently before the Federal Circuit, Philips v. ITC, is the latest incarnation of Philips' long struggle to defeat a patent misuse defense and hold a patent infringer liable for it's actions. The case began in 2002, when Philips appealed to the ITC to take action with regard to 19 identified companies for violating six U.S. patents. In response, the 19 respondents to the Philips complaint asserted patent misuse as a defense. The respondents' theory was that the RAND license for building the CD-R media included non-essential patents, which has antitrust ramifications, and therefore the patent holder is liable for patent misuse. The Administrative Law Judge (“ALJ”) agreed, in a 333 page opinion, with the respondents. Philips appealed to the ITC Commission, which confirmed the ALJ conclusion that the asserted patents were unenforceable by means of patent misuse.
With oral arguments occurring within the past few weeks, Philips and the legal community do not yet have closure on this very important issue. Industries seem to be moving towards standardization. Economists generally agree that this is a good move for the world's rapidly expanding commercial fronts. However, if the patent misuse defense continues to be upheld on appeal, the trend of standardization may begin to reverse itself. Only time will tell.
David Moore
In re Klopfenstein, 380 F.3d 1345 (Fed. Cir. 2004)
The case is of particular importance since it lays out a simple test to determine whether a display or other non-traditional presentation constitutes a “printed publication” under 35 U.S.C. § 102(b), barring the grant of a patent. This is especially important with respect to new display mediums, such as the Internet.
Applicants filed a patent application on October 30, 2000, for a method for preparing foods comprising extruded soy cotyledon fiber (SCF). It was known in the art at that time, that consuming SCF foods lowers serum cholesterol while raising HDL cholesterol levels. However, applicants had discovered that a double extrusion process increased this effect and yielded stronger results. In October 1998, over one year prior to the filing of their patent application, applicants along with a colleague exhibited a printed slide presentation detailing the enhancement at two different occasions to variety of persons including those having a background in the art of cereal chemistry and agriculture. The slide show presentation included fourteen slides printed and pasted onto a poster board, which was displayed for a total of three days. No copies were distributed to the public nor any statements that the information was not to be copied or reproduced included with the slides.
During prosecution, the examiner rejected the claims under 35 U.S.C. § 102(b), relying on applicant's slide show presentation as a “printed publication.” The PTO Board of Patent Appeals and Interferences affirmed the Examiner. Applicants appealed the Board's decision to the Court of Appeals for the Federal Circuit. The crux of applicants' arguments is that to be a “printed publication” under 102(b) it must have disseminated by the distribution of copies and/or indexed in a library or database, neither of which occurred.
The Federal Circuit affirmed the Board, holding that while distribution and indexing are often relied on for determining public accessibility they are not the only factors to be considered. The court reasoned that the slide show presentation was analogous in nature to a billboard, which is neither distributed nor indexed, but nonetheless would be regarded as a “printed publication.” The key inquiry, the court remarked, is “whether or not a reference had been made ‘publicly accessible.'” The court promulgated that the other factors to be considered are: 1) the length of time the display was exhibited, 2) the expertise of the target audience, 3) the existence (or lack thereof) of reasonable expectations that the material displayed would not be copied, and 4) the simplicity or ease with which the material displayed could have been copied.
Applying the facts to the case, the court concluded that the slide show presentation was a “printed publication” under 102(b). In discussing each of these factors, the court noted with respect to the display time that the more the display is transient the less likely it is to be a “printed publications.” The court concluded that displaying the slides for three days was sufficient display time. As too the audience's expertise, the court recognized that an audience having a degree of expertise in the field would more easily retain the displayed material. In this case, some viewing the slides had expertise and background in the art. With respect to expectation that the material would no the copied, the court discussed taking protective measure, e.g., licensing and non-disclosure agreements, and simply disclaimers discouraging copying, would be reasonable measures to ensure the displayed material will not be copied. The court noted that applicant's took none of these steps to ensure the materials would not be copied. Lastly, as to the ease of which a display could be copied, the court acknowledged that the simpler a display is, the more likely members of the public could take notes adequate for later reproduction. The court found that the fourteen slide presentation presented the invention, including the enhancement over the prior art, in a simply concise manner, which someone could easily have copied.
Eric Compton
KP Permanent Make-Up, Inc. v. Lasting Impressions I, Inc., et al., 125 S.Ct. 542 (2004)
On December 8, 2004, Justice Souter, writing for the Supreme Court held “a plaintiff claiming infringement of an incontestable mark must show likelihood of consumer confusion as part of the prima facie case... while the defendant has no independent burden to negate the likelihood of any confusion in raising the affirmative defense that a term is used descriptively, not as a mark, fairly, and in good faith.”
The petitioner was KP Permanent Make-Up, Inc. (KP). The respondents were Lasting Impressions I, Inc, and its licensee, MCN International, Inc. (Lasting). In 1993, the PTO registered “Micro Colors” in white letters separated by a green bar within a black square to Lasting. That mark became incontestable in 1999. In 1999, KP used the term “microcolor” in large stylized typeface in an advertisement. Lasting demanded that KP stop using the term. KP sued Lasting in the Central District of California seeking a declaratory judgment that it had not infringed. Lasting countersued alleging, inter alia, that KP infringed Lasting's “Micro Colors” trademark. KP sought summary judgment on a fair use defense. The district court entered summary judgment for KP. Lasting appealed.
The Court of Appeals for the Ninth Circuit held “no use could be recognized as fair where any consumer confusion was probable....” Since there were some facts in dispute relevant to assessing likelihood of confusion, summary judgment was reversed, and the case was remanded. The Supreme Court granted KP's petition for certiorari and vacated the judgment of the Court of Appeals.
The Court took note of two statutory points. First, the Trademark Act places the burden of likelihood of confusion on the party charging infringement. Second, Congress did not include “likelihood of confusion” when setting out the elements of fair use. “[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (quoting Russello v. United States, 464 U.S. 16, 23 (1983)).
In rejecting Lasting's claim that “used fairly” is incorporated into the likelihood of confusion test developed in common law for unfair competition, the Court stated that an assessment of the likelihood of consumer confusion alone is not dispositive. In fact, some degree of confusion is tolerated from use of descriptive words contained in another's trademark.
When considering the course of litigation, the Court stated that it would be incoherent to place the burden of nonconfusion on the defendant. It is only after the plaintiff has shown likelihood of confusion that the defendant would have the need of an affirmative defense. It makes no sense to put forth an affirmative defense of nonconfusion and good faith because the defense is entitled to a judgment by merely rebutting the claim of confusion. To counter this, Lasting argued that since Congress did not add the provision that an incontestable mark is “subject to proof of infringement” until 1988, there was no requirement on the plaintiff to prove likelihood of confusion prior to that date. Lasting stated that prior to that date, there was a requirement to show absence of confusion when using the fair use defense. When the burden of proof of confusion was placed on the plaintiff in 1988, there was a failure to relieve the defendant of its burden to prove absence of confusion in fair use. The Court rejected this argument calling it highly suspect and based on the false premise that the plaintiff had no need to show likelihood of confusion prior to 1988.
Although the Court recognized that some risk of confusion is tolerated under fair use particularly when dealing with descriptive marks, the Court did not rule out the relevance of the degree of consumer confusion. Likewise, accuracy of the use of the descriptive term would be a consideration in assessing fair use.
Julie D. Gover
Marketing Products Management, LLC et al. v. Healthandbeautydirect.com, Inc. et al., 333 F.Supp.2d 418 (D. Md. 2004).
In a September 7, 2004 opinion, Judge Davis writing for the United States District Court, District of Maryland, held that a marketing company's continued use of an inventor's image in an infomercial after termination of a joint marketing agreement did not violate Section 43(a) of the Lanham Act.
Plaintiff, Christopher Ludin was the joint inventor and designer of the LandRider, a bike having gears that shifted automatically. In June of 2000, Ludin acquired the exclusive right to market and sell the LandRider. Co-Plaintiff, Marketing Products Management, LLC later obtained the LandRider marketing rights from Ludin. Prior to the airing of an infomercial which the Plaintiffs based their false endorsement claim, on January 1, 2001 the Plaintiffs entered into a joint marketing agreement to facilitate international sales of the LandRider with the Defendant, Brian Fraidin (Healthbeautydirect.com, Inc). Subsequently, Fraidin created Venture Cycle as a parent brand name to market the LandRider. During the agreement which terminated on December 31, 2001, Ludin appeared in two infomercials for Venture Cycle, marketing the LandRider. However, after termination of the agreement, Fraidin produced and aired a third infomercial, an edited version of the two prior infomercials.
Plaintiffs, Marketing Products Management, LLC and Chris Ludin alleged that the third infomercial committed false endorsement of Chris Ludin for Venture Cycle after Ludin ceased involvement with the company. Specifically, the Plaintiffs claimed that representations made by the Defendant that Ludin was “a member of the Design Team,” depicting Ludin wearing a Venture Cycle T-shirt and “touting” the benefits of the LandRider were “literally false and/or misleading” to the public. The Plaintiffs contended that the infomercial created the false impression that Ludin was still involved and still endorsed Venture Cycle's marketing of the LandRider. In support of his claim, Ludin asserted that he never executed a written consent for the use of his image in the infomercials, and his reasonable expectation was that his image was only to be used during the agreement, when he was benefiting from LandRider profits.
In dismissing Ludin's false endorsement claim, the court stated that a false endorsement claim under Section 43(a) does not rest on whether a plaintiff executed or withdrew consent for the use of his image in the continued airing of an infomercial, but whether the representation made by the alleged defendant was “false on its face” or “although literally true, likely to mislead and to confuse customers given the merchandising context.”
The court held that the representation made by Fraidin in the third infomercial was not false on its face. The court concluded that the contested statement that Ludin was “a member of the Design Team” was literally true. Judge Davis reasoned, this was true whether or not Ludin was “still employed or consulting with Fraidin,... He was part of the LandRider Design Team.” Conversely, Judge Davis held although the statement was literally true, it did not cause a likelihood of confusion among the public as to any continuing endorsement by Ludin. “The only 'impression' that the infomercial leaves on the viewer is that Ludin was part of the LandRider Design Team and that he believes that LandRider is a desirable product for biking enthusiasts.”
Judge Davis clarified that Ludin “participated in the creation of the infomercial in which he allowed himself to be filmed wearing a Venture Cycle T-shirt.” Ludin, subsequently donated his image to the marketing of the LandRider, in which he would be the beneficiary of any increased profits. Judge Davis cautioned that the court would not “create or impose such an agreement where one does not exist” when “one donated his image for commercial purposes in electronic media without an agreement containing conditions or limitations as to such use” (emphasis in original).
The court analogized unauthorized use of one's image to that of unauthorized use of a trademark. The court concluded, a cause of action cannot exist under the Lanham Act for trademark infringement for the “sale of genuine goods bearing a true mark, even if the sale is without the mark owner's consent” (quoting NEC Electronics v. CAL Circuit Abco, 810 F.2d 1506 (9th Cir.). Thus, Ludin was unsuccessful in challenging Fraidin's representations of Ludin's involvement in the infomercial under Section 43(a), because the representations were genuine facts.
Judge Davis concluded that the Plaintiffs' remedies existed within state law claims of invasion of privacy (right to publicity), misappropriation and/or unjust enrichment not the Lanham Act. (The court further dismissed the Plaintiffs' racketeering claim under RICO.)
Todd Christopher Jones
Irdeto Access, Inc. v. Echostar Satellite Corp., 383 F.3d 1295 (Fed. Cir. 2004).
The Federal Circuit, in an opinion by Judge Michel, held that a term within a patent claim will be construed only as broadly as the patent itself allows. Furthermore, the patentee bears the burden of providing a precise definition for the term at issue.
Petitioner Irdeto held the patent on a system for controlling broadcast of multiple digital information signals through the use of three levels of complementary encryption and decryption keys, known as “service keys,” “group keys,” and “box keys.” These keys would allow the distributor of the digital information to segregate the signal(s) according to various criteria, such as geography or subscriber taste.
Irdeto sued Echostar for infringement of the Irdeto patent by its use of “Control Words” in a way corresponding to Irdeto's use of “service keys.” While neither party disputed the pertinent facts, Echostar asserted that the word “group key” in the Irdeto patent claim should be defined for infringement purposes as it is used in the patent itself. The District Court for Colorado agreed, granting Echostar's request for summary judgment for non-infringement.
On appeal, the Federal Circuit affirmed, holding that, if a disputed term in a patent claim has no previous meaning to someone of ordinary skill in the art, its meaning may be implied from the terms of the patent. Judge Michel wrote that, “[a] reasonable competitor reading the patent could only understand “group” to refer to a subset of all subscribers (and not all subscribers to the digital information system as Irdeto alleged).”
When a disputed patent term lacks an accepted meaning in the art, a patentee may not rely on the “heavy presumption” of that term's ordinary meaning being applied in an infringement suit.
Michael S. Fuller