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Home - Merchant & Gould P.C.

Elizabeth Harwood is an intellectual property attorney. She helps clients across multiple industries protect and enforce their intellectual property, including in trial and appellate litigation and IP transactions.

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From food and beverage to technology and pharmaceuticals, Elizabeth counsels clients in a diverse array of industries on issues arising in intellectual property disputes and strategic relationships.

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Inspired by her clients’ creativity, she enjoys mastering their unique innovations and understanding the nuances of their brand identities to best protect and leverage their intellectual property assets.

Her practice involves all facets of intellectual property law, including copyrights, trademarks, trade secrets, patents, and licensing. As a member of the firm’s litigation group, Elizabeth works on all phases of lawsuits—pretrial motions practice, trials, and appeals.

Elizabeth has experience representing clients in a variety of transactions, including licensing agreements and mergers and acquisitions, as well as advising clients on compliance with domestic and international data privacy regulations.

She delivers effective solutions to her clients’ complex legal problems. A proficient researcher and writer, she prides herself on being able to quickly ascertain the most compelling legal arguments and present them persuasively in writing and oral advocacy.

With experience clerking in the federal and state judicial systems, in trial and appellate courts, she brings insight on the analytical processes of decisionmakers in a variety of contexts. Having worked on IP transactions, litigations, and proceedings before the Trademark Trial and Appeal Board, Elizabeth adds value and perspective at any stage of her clients’ IP matters.

Elizabeth attended the University of Tennessee College of Law, graduating summa cum laude. She earned a Bachelor’s degree from the University of Tennessee, where her studies included anthropology, philosophy, history, literature, and French.

A “Volunteer” through and through, Elizabeth is dedicated to using her talents for the benefit of her community and causes she believes in and is an active participant in the firm’s pro bono initiatives.

In her spare time, she enjoys being in the great outdoors, practicing yoga, and tending to her garden.

The University of Tennessee College of Law, J.D., 

The University of Tennessee - Knoxville, B.A. Anthropology

Automotive & Powersports

Computer Technology

Consumer Products

Food & Beverage

Internet

Media & Entertainment

Software & Information Technology

Sports & Fitness

Telecommunications

Transportation

Veterinary Products

Knoxville

Last week, the U.S. Court of Appeals for the Tenth Circuit issued an opinion in <a href="https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110959318.pdf">Alfwear, Inc. v. Mast-Jӓegermeister US, Inc., No. 22-4020 (Nov. 28, 2023)</a>, affirming the denial of attorney’s fees to Jӓegermeister after it prevailed on summary judgment.



Alfwear sued Jӓegermeister for trademark infringement and unfair competition, claiming the liqueur manufacturer’s use of the term “KüHL” in advertising campaigns was likely to cause confusion with the outdoor clothing company’s KüHL brand name. After discovery, Jӓegermeister moved for and was granted summary judgment. The Tenth Circuit affirmed.



As the prevailing party on summary judgment, Jӓegermeister moved for an award of attorney’s fees. The district court denied the motion, concluding the case was not sufficiently exceptional to warrant an award under 15 U.S.C. §&nbsp;1117(a). Jӓegermeister appealed, arguing it was entitled to an award of fees based on the weakness of Alfwear’s claims from the case’s inception and its vexatious litigation tactics.



The Tenth Circuit affirmed, finding no abuse of discretion. Applying the same standard applicable to the exceptional-case attorney fees provision in the Patent Act, the Court emphasized that not every case dismissed on summary judgment can be considered exceptional. Rather, a plaintiff’s suit must lack any reasonable foundation. The Court found no clear error in the district court’s conclusion that, because Alfwear’s claims were sufficiently meritorious to survive the motion-to-dismiss phase, the case was not so meritless that it rose to the level of exceptional. As for Jӓegermeister’s arguments about Alfwear’s litigation conduct, evidence that both parties engaged in hard-fought litigation tactics, including the complained-of filing of parallel proceedings before the Trademark Trial and Appeal Board and other federal district courts, was sufficient to satisfy the Court that the district court’s finding of equivalence in the parties’ conduct was not arbitrary. That Jӓegermeister disagreed with the district court’s findings did not establish an abuse of discretion.

Tenth Circuit Affirms Denial of Fees Under the Lanham Act

Last week, the U.S. Court of Appeals for the Federal Circuit issued an opinion in <a href="https://cafc.uscourts.gov/opinions-orders/23-1101.OPINION.6-3-2024_2327090.pdf">EcoFactor, Inc. v. Google LLC, 2023-1101 (June 3, 2023)</a>, affirming a judgment of infringement and dismissing three issues raised by Google on appeal.



EcoFactor sued Google alleging that Google’s Nest smart thermostats infringed U.S. Patent No. 8,738,327, which relates to the operation of smart thermostats. The district court denied Google’s motion for summary judgment, which argued that certain claims of the ’327 patent were invalid as directed towards ineligible subject matter. The district court also denied Google’s pretrial motion to exclude the opinion of EcoFactor’s damages expert. After trial, the jury returned a verdict of infringement and awarded damages. The district court denied Google’s post-trial motions for judgment of non-infringement as a matter of law and for a new trial on damages. Google appealed.



The Federal Circuit affirmed. Disposing of Google’s first issue, the Court held that the district court’s denial of summary judgment was not appealable because trial on the merits of the ineligibility issue had been held. Google had not appealed the jury’s verdict that the ’327 patent did not claim ineligible subject matter.



Next, the Court found that the evidence at trial was sufficient to support the jury’s finding that the ’327 patent’s limitation of “receiv[ing] temperature measurements from inside the structure” was met by the accused products. Expert testimony, statements on Google’s webpages, and the accused products’ source code evidenced the products measure temperature inside customer homes, not just inside the thermostat housing, as Google had contended on appeal.



Finally, the Court concluded that a new trial on damages was not warranted, because the opinion of EcoFactor’s expert regarding a hypothetical negotiation was sufficiently reliable. This finding was based on EcoFactor’s expert’s consideration of three EcoFactor license agreements, which provided for a payment of a lump sum amount based on a stated royalty rate—the same royalty rate employed in the expert’s damages calculation—and corroborating testimony of EcoFactor’s CEO. Despite the license agreements pertaining to interrelated EcoFactor patents not at issue, the Court found that EcoFactor’s expert showed the license agreements to be economically comparable to the hypothetical negotiation by citing evidence of market pressures and Google’s profit which could be attributed to the patent at issue. Judge Prost dissented from the majority’s decision on damages, finding EcoFactor’s expert’s method of deriving a royalty rate from the lump-sum licenses unreliable.



Coauthored by Elizabeth Harwood &amp; Emily Threatt.

Federal Circuit Affirms Judgment that Google Smart Thermostat Feature Infringes

Litigation

Appellate

Copyright

Design Patent & Trade Dress

Internet, Cybersecurity, & E-Commerce

IP Due Diligence

Licensing

Trade Secret

Trademark

Megan Fee

Associate

Elizabeth Harwood Pierce

Knoxville Bar Association
Tennessee Bar Association &#8211; Intellectual Property Section
East Tennessee Lawyers Association for Women

Professional Affiliations

Clerked for the Honorable Sarah K. Campbell of the Tennessee Supreme Court 
Clerked for the Honorable Thomas A. Varlan of the U.S. District Court for the Eastern District of Tennessee 
Interned for the Honorable Bernice B. Donald of the U.S. Court of Appeals for the Sixth Circuit

Elizabeth Harwood Pierce

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