In the wake of a recent United States Supreme Court decision B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. _____ (2015) (Slip Op.), there is now no doubt that the strategy decisions you make in brand enforcement efforts before the Trademark Trial and Appeal Board (TTAB), a federal administrative agency, may have a critical impact on the outcome of any later federal court infringement litigation. The Court made clear that the doctrine of “issue preclusion” can foreclose relitigation of the likelihood of confusion issue – the key test of trademark infringement -- in that federal court litigation.
Companies of all sizes seek to focus on business development rather than on patent proceedings. Patents and the implementation of patents are a fundamental part of the ordinary operations of many businesses outside of the pharma/tech industries. Development and implementation of patentable technologies drives the innovations that set these businesses apart from their counterparts. When these types of businesses are considering filing a patent infringement action, it is because they face actual current issues in the marketplace that threaten the success, the growth, and sometimes the lives of their business, their innovations, their brands, and their investments in R&D. Consequently, if there is to be patent “reform,” it is important to focus on the needs of businesses outside of the pharma/tech divide. Those businesses have broad investment in their innovations and in obtaining patent rights, and they need to be assured of their ability to rely on those rights. Current and proposed “reform” is preventing many of these businesses from enjoying any benefit from their patents.