Illinois

Judge Dow Orders New Trial Due to Unreliable Consumer Confusion Survey

Order Granting Motion for New Trial, The Black & Decker Corp., et al. v. Positec USA, Inc., et al., N.D. Ill. (September 11, 2017) (Judge Robert M. Dow, Jr.)

Trademark litigants often submit survey evidence to prove that there is (or is not) a likelihood of consumer confusion between two trademarks. Parties hoping to rely on such surveys should be careful, however, to mimic market conditions as closely as possible—for instance, ensuring that the emulated market conditions include an appropriate context reflecting how purchases actually are made. Parties also should heed professional survey research in constructing survey designs, so that the results are considered trustworthy and directed to the relevant issue. READ MORE

Alice Strikes Again: Patent for Biometric Identification and Verification System Invalidated as Directed to a “Well-Known” Idea “Humans Have Always Performed.”

Order Granting Motion to Dismiss, IQS US, Inc. et al. v. Calsoft Labs, Inc., et al., N.D. Ill. (August 18, 2017) (Judge Joan H. Lefkow)

Late last month, we reported on an Order from the Southern District of Texas invalidating identify theft prevention software under Alice as being directed to an abstract idea and lacking a sufficiently inventive concept.  There, Magistrate Judge Palermo found that the idea of preventing identity theft was an idea that has “existed since the dawn of civilization” and compared the claimed invention to the age-old practice of signature comparison and the more recent practice of identification cards.  In a similarly-reasoned order, Judge Lefkow of the Northern District of Illinois recently invalidated a patent for a biometric identification and verification system by finding that the patent claimed the idea of comparing known information about an individual to a second set of information for the purposes of confirming an individual’s identity—a “well-known concept that humans have always performed.” READ MORE

TC Heartland – One Month Later Delaware, Texas, California and Illinois Courts Most Popular Venues

We previously reported on the early impact of the Supreme Court’s decision in TC Heartland based on the first few weeks of new filings. (For a summary of the TC Heartland opinion and its implications, click here.) It has now been one month, and based on the filing data for the month since TC Heartland as well as historical data since the beginning of 2016, we now have a better sense of how things have changed and how things may look in the future. Using data obtained from Docket Navigator, we compared filings in the month since TC Heartland came down on May 22 with filings earlier this year and also for all of 2016. READ MORE