Maryland Intellectual Property Law Blog : Maryland Intellectual Property Lawyer & Attorney : Brian Wm. Higgins : Serving Baltimore, Columbia, Frederick

          According to Bouchat, sometime in 1996 the Baltimore Ravens adopted a helmet and uniform design that included his copyrighted artwork.  The NFL then licensed the infringing logo to EA in return for royalties.  EA then depicted the infringing logo in the Madden NFL 11 game (see screenshot at right, from The Daily Record).

          Madden NFL 11 is one of over 20 iterations of the widely popular "Madden NFL" video game, reportedly selling over 85 million copies since its debut in 1988.

          Bouchat is seeking actual damages, profits attributed to the alleged infringement, copyright statutory damages, and a permanent injunction.

          Howard J. Schulman of Shulman & Kaufman LLC (Baltimore) represents Bouchat in the lawsuit. 

          At the time of this posting, the NFL and EA had not filed their answers to Bouchat's complaint.

          For an interesting history of Baltimore's professional football teams and the various iterations and uses of their logos, click here. 

          Other litigation involving the copyrighted subject matter of this lawsuit, see Bouchat v. Baltimore Ravens, Inc., 241 F.3d 350 (4th Cir. 2001), Bouchat v. Baltimore Ravens, Inc., 215 F. Supp. 2d 611 (D. Md. 2002), Bouchat v. Baltimore Ravens, Inc., 346 F.3d 514 (4th Cir. 2003), Bouchat v. Champion Products, Inc., et al., 327 F. Supp. 2d 537 (D. Md. 2003), Bouchat v. The Bon-Ton Dept. Stores, Inc. et al., 506 F.3d 315 (4th Cir. 2007).

          To pass the legislation, the Senate considered 44 amendments and took six floor votes over a week's period of time, including a vote on a motion to invoke cloture to prevent filibuster.

          Both Maryland Senators--Cardin and Mikulski--voted in favor of the bill (the 5 Nay votes came from Boxer (D-CA), Crapo (R-ID), Risch (R-ID), Ensign (R-NV), and Cantwell (D-WA)). 

          The full text of the amended bill sent to the House is available by clicking on the image below.  A list of the major provisions is also shown.

          Sec. 1. Short title; table of contents.

          Sec. 2.  First inventor to file. 

             An amendment (S. Amend. 133) to strike the first-to-file provision in S.23 and retain the present first-to-invent system was tabled during debate, by a vote of 87-13.  Sponsored by Sen. Feinstein (D-CA) and co-sponsored by six (including four of the five Senators who did not vote for passage of S.23), the first-to-invent system would continue the long-standing rule that the first person to invent gets the patent, not the first person who files a patent application for the invention.  Noting broad support for maintaining the status quo, Sen. Feinstein stated in her floor remarks:

"[W]e have been the world's leader in innovation, and the first-to-file countries have been playing catchup with our technological advances. So with all due respect, I wouldn't trade America's record of innovation for that of virtually any other country or certainly any first-to-file country.  The genius of America is inventions in small garages and labs, in great ideas that come from inspiration and perspiration in such settings and then take off. So many of America's leading companies--Hewlett Packard, Apple, Google, even AT&T arising from Alexander Graham Bell's lab, for example--started in such settings and grew spectacularly, creating jobs for millions of Americans and lifting our economy and standard of living."
 

                        Sec. 3. Inventor’s oath or declaration.    

          Sec. 4. Virtual marking and advice of counsel. 

          Most of the "Damages" provisions in the version of the bill that was reported out of the Senate Judiciary committe was struck.

          Sec. 5. Post-grant review proceedings. 

          Added "(b) Preliminary Injunctions- If a civil action alleging infringement of a patent is filed within 3 months of the grant of the patent, the court may not stay its consideration of the patent owner’s motion for a preliminary injunction against infringement of the patent on the basis that a petition for post-grant review has been filed or that such a proceeding has been instituted."

          Sec. 6. Patent Trial and Appeal Board.

          Sec. 7. Preissuance submissions by third parties.

          Sec. 8. Venue.

          Sec. 9. Fee setting authority.

          Sec. 10. Supplemental examination.

          Sec. 11. Residency of Federal Circuit judges.

          Sec. 12. Micro entity defined.

          Sec. 13. Funding agreements.

          Sec. 14. Tax strategies deemed within the prior art.

          Sec. 15. Best mode requirement.

          Sec. 16. Technical amendments.

          Sec. 17. Clarification of jurisdiction.

          Sec. 18. Transitional program for covered business-method patents.

          Sec. 19. Travel expenses and payment of administrative judges.

          Sec. 20. Patent and Trademark Office funding.

          Sec. 21. Satellite offices.

          Sec. 22. Patent Ombudsman Program for small business concerns.

          Sec. 23. Priority examination for technologies important to American competitiveness.

          Sec. 24. Designation of Detroit satellite office.

          Sec. 25. Effective date.

          Sec. 26. Budgetary effects.

     On October 31, 2007, in a packed courtroom, the Eastern District of Virginia considered (1) the likelihood of success on the merits by GSK, (2) the possibility of irreparable harm to GSK if the injunction is not granted, (3) the balance of hardships between the parties, and (4) the public's interest.

     Under factor (1), the court found that each side had a likelihood of success at trial on the issues noted below. However, under factor (2), the court granted the preliminary injunction because it is likely that GSK would suffer irreparable harm if the preliminary injunction is not granted, namely of potentially losing valuable patent protection and incurring significant costs to comply with the Final Rules. And, under factor (3), the court determined that, though the hardship to the PTO for maintaining the status quo by deferring the effective date of the Final Rules is not nonexistent, the uncertainty and loss of investment suffered immediately by GSK tilts the balance of hardships in their favor. Finally, under factor (4), the court found that the public interest is most served by continuing the status quo and granting the preliminary injunction.

     Thus, while there are some issues on which the PTO may ultimately prevail as this litigation proceeds to the next stage, the court found, as a preliminary matter, that there is a likelihood that the PTO has exceeded its authority at least on several of the Final Rules, so it granted GSK’s motion, thereby preliminarily enjoining the PTO from implementing the new rules (see PTO's statement about the litigation here).

     In a poll conducted after the injunction issued, 92.8% of those who responded said that Judge Cacheris made the appropriate legal decision.  See PLI's Patent Blog for in-depth coverage of the legal challenges to the PTO's new rules.

     Since GSK’s challenge is a legal one, the next stage in this litigation will be for the parties to submit summary judgment motions. 

"Martek expects that Lonza will appeal the adverse decision against it to the U.S. Court of Appeals for the Federal Circuit. The permanent injunction will be in effect pending any appeal. Martek is considering the alternatives available to it regarding the '567 Patent."

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