MOTION MEDICAL TECHNOLOGIES, L.L.C.; WABASH MEDICAL COMPANY, L.L.C.; ORTHOFLEX, INCORPORATED, doing business as Inte-grated Orthopedics, Plaintiffs - Counter Defendants - Appellees v. THERMOTEK, INCORPORATED, Defendant-Counter Claimant-Third Party Plaintiff - Appellant v. TRI 3 ENTERPRISES, L.L.C.; THERMO COMPRESSION SOLUTIONS, L.L.C.; WMI ENTERPRISES, L.L.C., Third Party Defendants - Appellees;THERMOTEK, INCORPORATED, Plaintiff - Appellant v. MIKE WILFORD, Defendant - Appellee, 875 F.3d 765

Summary

HOLDINGS: [1]-Defendants competitors did not waive preemption of plaintiff manufacturer's Texas common law unfair competition by misappropriation claim because the manufacturer learned of it two years before trial and was not prejudiced; [2]-Federal copyright law preempted the claim, under 17 U.S.C.S. § 301, because most material at issue was within copyright subject matter, and the claim sought to protect property rights equivalent to those within copyright's general scope; [3]-Federal patent law preempted the claim as to certain products because it was designed to protect labor used to create a work without limiting the period of protection or conditioning protection on novelty, nonobviousness, or utility, contrary to federal patent policy's ultimate goal of public disclosure and use; [4]-The manufacturer proved no lost profits because it presented evidence of gross profits.