James E. Lowe, Jr.
Senior Attorney

Location: Milwaukee
T: 414.225.1453
F: 414.278.3653
111 E. Kilbourn Avenue, Suite 1400
Milwaukee, WI 53202-6613

Publications: Attorney James E. Lowe, Jr.

  • Raising an Ensnarement Defense Defeats the Doctrine of Equivalents

    February 1, 2018

    Is the Doctrine of Equivalents (DOE) dead, once again? Effectively, yes. All an alleged infringer needs to do is raise an ensnarement defense (a claim that a DOE enlarged hypothetical claim reads on the prior art), and then show that the equivalent element was known in the prior art. Most equivalent elements (not considering other claim elements) are known in the art, which is why they are equivalent! Under current CAFC precedent, all an alleged infringer has to do is offer some prior art. There is no burden on the alleged infringer to show that a DOE enlarged claim is either...

  • Federal Circuit Ruling Affirms That Filing Patents Sooner Than Later Is Critical

    May 3, 2017

    In a precedential opinion from the Unites States Court of Appeals for the Federal Circuit, the Court reaffirmed, on May 1, 2017, the need to get your patent applications filed sooner than later (Helsinn Healthcare S.A., v. Teva Pharmaceuticals USA, Inc.). The Court concluded that if there is a public commercial sale or offer of sale of the patented subject matter (what is covered by the patent claims) more than a year before an application is filed, and the invention was ready for patenting, then this “on sale” activity will invalidate a patent for the invention. "Ready for patenting" means...

  • The United States Patent and Trademark Office Post-Prosecution Pilot Program Has Ended

    February 10, 2017

    On January 12, 2017, the United States Patent and Trademark Office (USPTO) let expire one of its pilot program initiatives meant to improve the patent application process at the USPTO. Under the Post-Prosecution Pilot Program (P3), after an application had been refused, the applicant was given an opportunity to make their case, not only before the same patent examiner who already refused the application, but before a panel of three examiners. The applicant was allowed 20 minutes to present an argument before the panel. The panel then provided a Notice of Decision with a brief written summary of its ruling. Programs...

  • Social Media Presence Is a Factor When Assessing Trademark Strength

    February 10, 2017

    The Sixth Circuit Court of Appeals recently turned to the social media presence and marketing of a DJ when evaluating the DJ’s claims of trademark infringement and dilution. In Kibler v. Hall, et al (6th Cir. Dec. 13, 2016), the court affirmed summary judgment for Robert Hall, a rapper performing under the name “Logic” since 2009, in a trademark suit brought by Lee Kibler, a DJ performing under the name “DJ Logic” since 1999. Kibler previously registered his name as “DJ Logic” as a trademark in 2000 and again in 2013, after a lapse in registration. In 2012 attorneys for Kibler...

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