Sweet Justice?

Shaw Industries sued Hershey on February 5, 2013, seeking a declaration that Shaw's two decades of use of "chocolate kiss" as the name for the color carpets it sells does not infringe Hershey's rights. See Shaw Industries Group, Inc. v The Hershey Company, 4:13-cv-00027-HLM (N.D.Ga). According to the complaint, Hershey first contacted Shaw about the chocolate kiss color on December 19, 2012. Even after Shaw told Hershey on January 11, 2013, that it was dropping the chocolate kiss color later in 2013, but Hershey continued to threaten Shaw in a January 24, 2013 letter, and Shaw sued to resolve Hershey's claims.
This case illustrates the tension between IP rights holders and the public domain. How should someone describe the color of a carpet that is the color of a chocolate kiss? Even if "chocolate kiss" colored carpeting calls Hershey's to mind, is the descriptive use of chocolate kiss an infringement? Goaded by fears that the failure to take action will result in a diminution of rights, and driven to recover every shred of value from any reference to its mark, trademark owner's complain about every reference to their marks. The result is less colorful speech (literally), and an impairment of our ability to communicate.

Corresponding Suit / in Europe is Enough to / Bring D J Action

Arkema, Inc. v. Honeywell International, [2012-1308] (February 5, 2013) [DYK, Plager, O'Malley] the Federal Circuit reversed the refusal of the district court to allow Arkema to amend its declaratory judgment action to include two after-issued Honeywell patents, and remanded for further proceedings.
DISCUSSION: After being sued by Honeywell in Europe for infringement of a patent on a more environmentally friendly refrigerant, Arkema brought a declaratory judgement action challenging the validity and infringement of the corresponding U.S. patent. While this suit was pending, two additional U.S. patents issued on the use of the refrigerant. Arkema sought to amend its complaint to add these patents, but the district court found that as a mere supplier, Arkema was not currently or imminently in danger of facing liability for contributory or induced infringement on the patents on methods of using the refrigerant. The Federal Circuit said that Article III jurisdiction may be met where the patentee takes a position that puts the declaratory judgment plaintiff in the position of pursuing arguably illegal behavior or abandoning that which he claims a right to do. The Federal Circuit concluded that it was a "quintessential example of a situation in which declaratory relief is warranted." The Federal Circuit said that there do not have to be acts of direct infringement for declaratory judgment jurisdiction, nor do there have to be specific accusations against the potential direct infringers or their supplier. The Federal Circuit also noted that even under the iscarded "reasonable apprehension" test, accusations of infringement in related litigation were sufficient to confer jurisdiction, and thus the European litigation between the parties was a sufficient affirmative act by Honeywell establishing a case and controversy between the parties.

It is Presumed That / the Preferred Embodiment / is Coverd by Claims

Accent Packaging, Inc, v. Leggett & Platt, Inc., [2012-1011] (February 4, 2013) [Rader, PROST and Reyna] The Federal Circuit reversed summary judgment of non-infringement of U.S. Patent No. 7,373,877, remanding with instructions to enter summary judgment of infringement.
DISCUSSION: The asserted claims of the '877 patent related to a a wire tier that used to bale recyclables and other waste into bundles. The claim language at issue was:

said operator assembly including a pivotal shaft assembly and elongated operator bodies, with each of the operator bodies being operably coupled with a respective one of said gripper, knotter, citing element and cover so as to supply driving power form the single drive assembly thereto.

Leggett & Platt argued that the claim language required that each elongate operator bodies be operably coupled with one and only one of the listed elements of the device. Such a construction would not cover Legget & Platt's device, where its elongate operator bodies were each coupled to two elements. The problem for Leggett & Platt was that this construction also did not cover the single disclosed embodiment in the '877 patent. Noting that "a claim interpretation that excludes a preferred embodiment from the scope of the claim is rarely, if ever, correct". The Federal Circuit said that it was not persuaded that the claim language required a different construction. The Federal Circuit said that  the use of the indefinite article "a", which is generally open to one or more. Further the specification substantiates a construct that allows for an elongated operator element to be operatively coupled to one or more operator elements, noting that in the only disclosed embodiment two elongated operator bodies are each coupled to two distinct operator elements.