Upper Deck Safe From Infringement Claim

You know, I’m so b-a-d (oh, uh, that spells “bad” for those not yet awake) about getting new posts up here. (Oh please, it’s not like anyone’s paying me for this stuff, so lay off!) But I’ve been meaning to write about this one for a while, so – although it may be a little stale – here it is anyway.

This is the story of a patent suit. (The patents-in-suit are Numbers 5,803,501 and 6,142,532.) And the story involves entrepreneurs who sought protection for attaching sports memorabilia to baseball cards. Sort of like, buy the card, get the ball – or a shred of the player’s jersey. (What ever happened to buy the cards get the cardboard gum? I loved that stuff. It was filled with mystery – like the meat Jack-in-the-Box puts in its tacos. Anyway, I always liked the gum more than the cards, or the game for that matter, but then that’s me.)

So back our story. You know what they say, Federal Judges are the speed bumps on the road to commercial success. (“They” in that last sentence is “me” as in this blog, but go with it.) Specifically, the Court of Appeals for the Federal Circuit voted earlier this month to affirm summary judgment that Media Technologies Licensing LLC's patents were obvious based on pre-existing cards that featured entertainment memorabilia including, among others, the Fab Four, James Dean and Marilyn Monroe. Given this, the court stated that anyone with skill in the card/memorabilia area could have come up with the idea of attaching sports memorabilia to sports cards.

Easy come, easy go. The original patent-in-suit covered sports trading cards with a piece of that player’s uniform or other noteworthy item attached. (Maybe they should have attached steroid prescriptions and urine samples. Now that would have been interesting. Sports nuts – I just don’t get ‘em.) In any event, the Upper Deck Co. started selling something similar, Media Tech sued, claiming patent infringement. The district court granted summary judgment on the grounds that the patents were obvious, and now the Court of Appeals has agreed.

The net result? Upper Deck makes it home, safe from an infringement claim. Now if only these card makers would try something new, like inserting little strips of cardboard-like chewing gum in with the cards. Now there’s an idea!

Jonathan Pink is an intellectual property and commercial litigation attorney resident in the Irvine (Orange County) and Los Angeles offices of Bryan Cave, LLP. He specializes in handling high states copyright, trademark, patent and business disputes, and can be reached at 949-223-7173 or jonathan.pink@bryancave.com.