Insights

Washington – August 15, 2024: The 2025 edition of The Best Lawyers in America® has recognized 42 Crowell & Moring lawyers as "Best Lawyers" and 29 lawyers as “Ones to Watch.”

The Federal Circuit recently held that a claim that a product is protected by patents when it is not may constitute false advertising. Defendants in this case, Dawgs Inc., accused the makers of Crocs of using the terms “patented,” ‘proprietary,” and “exclusive” in its advertising in a manner that misled consumers about the nature, characteristics, or qualities of its own products and the products of its competitors. Specifically, Dawgs alleged that Crocs made promotional statements that a patent covers its Croslite shoe material, that Croslite has numerous tangible benefits found in all of Crocs’ shoe products and that, because Croslite is “patented,” others’ products lack these same benefits. Crocs, Inc. v. Effervescent, Inc., No. 2022-2160, 2024 U.S. App. LEXIS 25001 (Fed. Cir. Oct. 3, 2024).

Traditionally, a response to a Final Office Action (“FOA”) issued by the United States Patent and Trademark Office (“USPTO”) often involves filing a Request for Continued Examination (“RCE”) in order for the Examiner to consider further claim amendments.  In 2013, the USPTO launched the After Final Consideration Pilot program 2.0 (“AFCP 2.0”) as an alternative.  The AFCP 2.0 program allows patent applicants to request consideration of an amendment after a FOA without additional fees and grants examiners extra time to review the after-final amendment.  This provides applicants the chance to file after-final amendments without incurring the significant fees associated with an RCE.  The AFCP 2.0 program also provides an opportunity for applicants to have an interview with the Examiner and this increased communication often led to efficient resolution of prosecution. 

The USPTO has proposed a rule rendering a patent unenforceable if it is disclaimed over another patent that is subsequently found invalid.  The FTC filed a comment letter in support of the USPTO’s proposed rule, noting that “the proposed rule would reduce the costs incurred by potential competitors challenging weak patents or defending against assertions of patent claims that are obvious variants of a single invention.”