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Logos and the Ordinary Observer Test

Logos and the Ordinary Observer Test

The Federal Circuit recently held in Columbia Sportswear North America, Inc. v Seirus Innovative Accessories, Inc. that logos may be considered in the ordinary observer test.[1]  Seirus Innovative Accessories (“Seirus”) makes and sells cold weather gear, and a lower court had ruled on summary judgment that U.S. Patent No. D657,093 to Snyder was infringed by Seirus’s gloves and glove liners:  The Federal Circuit reversed the summary judgement in part because the lower court improperly disregarded Seirus’s logo in the ordinary observer test. The ordinary observer test is used to determine whether a claimed design is infringed and provides that an accused product infringes a claimed design if the two designs are substantially the same in the eye of an ordinary observer.   In this case, Seirus’s gloves and glove liners included a logo that repeatedly interrupted a wave design, and Seirus argued that?due to the logos?the gloves and glove liners were… Continue Reading

Reminder of Annual Reporting and IRS Filing for ISO Exercises and ESPP Stock Transfers

This is a reminder for sponsors of equity incentive plans and tax-qualified “employee stock purchase plans” (“ESPPs”) of their year-end information reporting requirements under Section 6039 of the Internal Revenue Code with respect to stock issued to employees or former employees upon the exercise of “incentive stock options” (“ISO”) or transferred under an ESPP. The IRS has issued two forms that companies must use to satisfy the return and information statement requirements: (i) Form 3921, which is required when an employee (or former employee) exercises an ISO, and (ii) Form 3922, which is required when a company records the first transfer of legal title of shares acquired under an ESPP when either (a) the purchase price of the shares was less than the stock’s fair market value on the date of grant or (b) the purchase price of the shares was not fixed or determinable on the date of grant.… Continue Reading

“Consisting Essentially Of” Claims Nixed at Federal Circuit

“Consisting Essentially Of” Claims Nixed at Federal Circuit

Michael Tobin Associate Haynes and Boone, LLP In HZNP Medicines LLC v. Actavis Laboratories UT, Inc. (Fed. Cir. 2019)[1], the Federal Circuit affirmed the district court’s holding that the transitional phrase “consisting essentially of” was indefinite as used in several claims of patents owned by HZNP Medicines LLC and Horizon Pharma USA, Inc. (“Horizon”).[2]  Slip Op. at 2, 33.  Horizon’s patents cover its PENNSAID® 2% product, which is a Non-Steroidal Anti-Inflammatory Drug (NSAID) and the first FDA-approved twice-daily topical diclofenac sodium formulation for the treatment of pain of osteoarthritis of the knees.  Claim 49 of U.S. Patent No. 8,252,838 (the “‘838 patent”) is illustrative of Horizon’s formulation patents and recites: A topical formulation consisting essentially of: 1–2% w/w diclofenac sodium; 40–50% w/w DMSO; 23–29% w/w ethanol; 10–12% w/w propylene glycol; hydroxypropyl cellulose; and water to make 100% w/w, wherein the topical formulation has a viscosity of 500–5000 centipoise. Prior to… Continue Reading

DOL Issues Proposed Regulations for Electronic Delivery of ERISA-Required Retirement Plan Disclosures

The DOL recently issued proposed regulations which provide a “Notice-and-Access” safe harbor for the electronic delivery of ERISA-required disclosures. Under the proposed regulations, plan administrators can fulfill their obligation to provide these disclosures by making the information accessible online and by sending a notice of Internet availability (“Internet Availability Notice”) of the disclosures to participants’ e-mail addresses. The Internet Availability Notice must include a brief description of the document being posted online, a website address where the document is posted, and instructions for requesting a free paper copy of the disclosures or electing paper delivery of such disclosures in the future. Although the Internet Availability Notice must generally be sent each time a disclosure is posted online, the proposed regulations would allow a plan administrator to combine such notices in certain circumstances. The proposed regulations only apply to retirement plans, not health and welfare plans, and a plan administrator must… Continue Reading

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