AIPLA Reports on the May 6, 2009 Federal Circuit Oral Argument on the Bose v Hexawave Case

In today's issue of AIPLA Reports, the AIPLA (American Intellectual Property Law Association) summarized very cogently an oral argument on May 6, 2009 before the Federal Circuit in the Bose Corp. v. Hexawave, Inc. case. Opposition No. 91157315 (filed July 17, 2003). The AIPLA had submitted an amicus brief in the case and partipated in the oral argument.

The AIPLA's summary also includes a link to the MP3 file of the audio recording of the oral argument. Based on this summary, it sounds as if the Federal Circuit might consider overturning the TTAB's opinion in the underlying case, in which the TTAB held that Bose's reliance on its repair services to demonstrate a continued "use in commerce" in support of its Section 8 and 9 declarations (for renewal of the registration) was unreasonable. Opinion at 14-17. The TTAB found fraud in the filing of the renewal declaration, granted the counterclaim to cancel Bose's Registration No. 1633789 and ordered that the cancellation occur in "due course." The appeal to the Federal Circuit followed, on June 11, 2008.

It remains to be seen how the Federal Circuit will actually rule, but this promises to be a pivotal decision in the Fraud on the PTO jurisprudence, which perhaps will provide more guidance to practitioners and their clients in determining what goods and services should be included in the applications and/or renewal declarations.