TTABlog Special Report: List of Fraud Claims Sustained by TTAB Since In re Bose
None. The TTAB has not sustained a single fraud claim in the two years since the CAFC issued its decision in In re Bose Corporation. Nor has it decided whether reckless disregard for the truth is sufficient to satisfy the "intent" element. To sum up the situation, see the Fraud-O-Meter.
posted by John L. Welch @ 8/31/2011
8 comments
8 Comments:
Fraud-O-Meter going to replace the TTABall as the next giveaway?
I would like to see where "To the hilt" falls on here -- does the Fraud 'O Meter go all the way to 11, a la This is Spinal Tap?
Good questions, both. I have been considering some kind of pin or badge displaying the FRAUD-O-METER. Watch this space for further developments.
As the the "to the hilt" question, maybe instead of an arrow on the meter, it should be a sword?
The Board has decided to punish plaintiffs until one of them gets pissed enough to get the ball back in the CAFC's court (no pun intended). The CAFC only said what fraud is not, but not what it is. And avoiding determination of the the "reckless disregard" standard is a failure by both tribunals.
Are there plans to register FRAUD-O-METER as a trademark for legal services and collateral goods, pins, T-shirts, hats? I am will to pay good money for some of that stuff:-) What about a calendar with dials that actually work?
Interesting development on this front - jury finding of fraud in Firehose Subs case:
http://www.thesunnews.com/2011/08/30/2360420/firehouse-restaurant-lawsuit-could.html
What I find more troubling is that the Board recently held that fraud is uniquely unsuited for summary judgment. This means that a claim that (apparently) has no chance in hell of being successful has to go all the way through trial! It seems to me that if a respondent has a good explanation for its alleged malfeasance, and the party alleging fraud cannot make a showing of specific intent to defraud, then SJ should be appropriate.
It seems logical that if a defendant can show that it had no willful intent to decive the PTO, summary judgment in its favor would be appropriate.
However, for a very long time the Board has simply stated the general hornbook law that "Cases involving questions of intent are often said to be unsuited for resolution to summary judgment." It even made that general statement in Medinol v. Neuro Vasx, 67 USPQ2d 1205, at 1209, citing to Copelands' v. CNV, 20 USPQ2d 1295, 1299 (Fed. Cir. 1991).
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