CeramTec has appealed its TTAB loss to the Federal Circuit: https://www.scribd.com/document/625729314/CeramTec-GmbH-v-CoorsTek-Bioceramics-LLC-Notice-of-Appeal
CeramTec has trade dress registrations that claim the color pink for use in connection with hip implants.
But it has "sought or obtained additional [utility] patent protection for compositions claiming the beneficial effects of chromia, the chemical that turns the compound pink."
The TTAB held that, in this context, pink is functional & unregistrable
Some of you might remember that the parties previously litigated this issue in Colorado.
The district court, like the TTAB, concluded that the color pink was functional. https://www.scribd.com/document/335930110/C5-Med-Werks-v-Ceramtec-Order
The 10th Circuit didn't reach the trademark issue because it concluded that the District Court didn't have personal jurisdiction over CeramTec: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110226021.pdf
Anyway, lots of interesting issues here about utility patents & functionality, post-TrafFix.
If there any #LawStudents looking for #LawStudentNote topics, you might want to check this one out.
For example, CeramTec argued in the 10th Circuit that you could practice at least some claims of one of the utility patents without making a pink product, so that meant that making a pink product wasn't practicing "the patent."
Curious what my #PatentFedi friends think of this argument. @jsherkow ? @nicholson? @PatentScholar ?
In particular, what would you cite for the basic proposition that "each claim in a utility patent stands on its own and could have been filed separately"?
@design_law @jsherkow @nicholson RE: each claim standing on its own—the doctrine of claim differentiation?
@rmacanthony Thanks but I'm thinking more like "each claim could have been filed as its own patent but they grouped them together to save on costs"
@rmacanthony By CeramTec's apparent logic, if the claims that resulted in pink products were filed separately, there would be a TrafFix problem but, because they were grouped with other claims, there is not.
@design_law thanks. That doesn’t sound like a good argument to me. Practicing any single claim is enough for infringement. I should read what you linked before commenting further—just waiting to get on a plane and scrolling through my feed. This sounds like an interesting case; thanks for sharing it.
@rmacanthony @design_law @nicholson At the risk of possibly missing the issue—don't know about this case—isn't this just § 282(a):
"Each claim of a patent (whether in independent, dependent, or multiple dependent form) shall be presumed valid independently of the validity of other claims; dependent or multiple dependent claims shall be presumed valid even though dependent upon an invalid claim."
@jsherkow @rmacanthony @nicholson I think this is helpful, yes. Thanks! I feel like this is one of those "sky is blue" situations.
@design_law @jsherkow @rmacanthony
You could also cite a casebook? Those can be fun for "the sky is blue" citations...
@nicholson @jsherkow @rmacanthony Good point. Thanks!
@design_law @nicholson @rmacanthony Or a treatise! I keep forgetting about those 