Case Update on 3M Co. v. Performance Supply

As an update to our earlier blog post, Judge Preska asked the defendant Performance Supply why she should not make the temporary restraining order permanent and ordered them to appear before her in person on May 4, 2020. They failed to show up, and the temporary restraining order is now a preliminary injunction.

3M has also filed suit in the Eastern District of California, two suits in the Middle District of Florida, one suit in the Northern District of Florida, one suit in the Southern District of Indiana, and one suit in the Northern District of Texas.

An Important Option to Consider for Filing Patent Applications in the COVID-19 Era

We may be living in uncertain times right now but that does not mean the end of technological innovations. In fact, many individuals, companies, and even entire industries are innovating more than ever now—intentionally or not—as they strive to adapt to the changing needs of users and consumers due to the ongoing pandemic. However, because companies are generally wanting (or needing) to spend less money and may be cutting back on various expenses such as for pursuing patent protection on their innovations, they may find themselves regretting those choices down the road. The cost of obtaining a patent is not insignificant but what people and companies need to understand—now more than ever—is that there is a lower cost option for securing priority and patent protection down the road: provisional patent applications. Continue Reading

Stop Price Gouging Using Trademark Law? 3M Says Yes and Court Agrees

In early April, 3M filed a lawsuit against Performance Supply LLC of New Jersey for violating trademark law because they were reselling N95 masks they had purchased from 3M at more than a 500% markup (3M Co. v. Performance Supply LLC, SDNY No. 1:20-cv-0249, 04/10/20.)

Normally, when someone buys products from a manufacturer, they can resell them without trademark issues under the “first-sale doctrine.” Imagine buying a pair of Nikes at a store not owned by Nike, and then Nike suing the store. What? No store would be in business except those that exclusively sold their own products! Continue Reading

U.S. Patent and Trademark Office Increases Extensions to Deadlines under the CARES Act

As a further update to earlier posts (“How the USPTO is Responding to the Coronavirus Outbreak” and “USPTO and Copyright Office Announces Extensions to Deadlines”) regarding recent actions taken by the United States Patent and Trademark Office (USPTO) due to the COVID-19 pandemic, the USPTO announced this week an increased extension of time for the filing of various patent and trademark-related documents and payment of certain fees. USPTO Director Andrei Iancu signed into effect separate patent-specific and trademark-specific Extended Waiver of Timing Deadline Notices that supersede the previously-issued notices. Continue Reading

Supreme Court Reinforces Position That the Patent Office Has the Final Say on Whether to Initiate an Inter Partes Review

On April 20, 2020, the U.S. Supreme Court decided that the USPTO’s decision to institute inter partes review, even after the one-year statutory time limit for requesting the review, is not appealable. In other words, the USPTO has the final say for all questions that are closely tied to its decision whether to initiate inter partes review. The case is Thryv, Inc., FKA Dex Media, Inc. v. Click-To-Call Technologies, LP, et al., No. 18–916 (S. Ct. April 20, 2020). Continue Reading

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