Intellectual Property Law

Rule 403 Prejudice Comes with the Combo.

Posted on November 20, 2009
As one Delaware jurist used to ask, ?how many times do you patent lawyers want me to try your case??  It was a rhetorical inquiry, since the judge had the power to keep it to one, even though the lawyers might prefer 3 trials: claim construction, liability and damages (plus maybe a TRO mini-trial on [...

Local Patent Rules Might Have Unintended Impact.

Posted on November 18, 2009
LegalMetric sends out routine emails referring to its statistical analysis of patent litigation. Recently, it reported the most pro-patentee and [allegedly] pro-infringer districts among the federal courts. In order, the top 10 districts favoring parties accused of infringement are: 1...

Spring IP

Posted on November 16, 2009
As 2009 winds down, I begin preparing to teach in the Spring semester. The greatest number of IP law courses yet are offered in the coming semester. My class on IP Transactions L936 is one among the classes offered in Copyright Law L929, Patent Law L934, and also, the seminars in Advanced Patent Law L [...

Brand Assassins.

Posted on November 14, 2009
Businesses divide large blocks of time between building their brands, and managing risks. Crunch time comes when unforeseen actions give the brand a black-eye. The case is point is the F1 Grand Prix team of Renault, which like most motorsports teams, runs a car that resembles a rocket-shaped billboard...

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Ariad v. Lilly - amicus diverge.

Posted on November 12, 2009
My initial reading of the amicus briefs to the Federal Circuit, on the two en banc questions about the written description requirement, indicated two clusters of argument.  There are contentions that the requirements “as applied” impact the life sciences harshly...

Was this award of counsel fees ?exceptional? or less.

Posted on October 19, 2009
The premise of prosecution history estoppel has strength in claim interpretation, but is a weak reason for assessing “exceptional case” attorneys fees.  The Judge awarded attorney’s fees to the accused infringer in iLor v. Google, 5:07CV109 (E...

Headless Calvaryman Unseated by Iqbal.

Posted on September 17, 2009
In the old days - what, like five years ago -  an infringement defendant sued by a competitor was likely to counterclaim based on patents possibly applicable to both parties? product lines.  Such counterclaims served a zero-sum strategy, and often was a gambit toward settlement by cross-licensing...

Twombly?s Alternatives Make Pleading Personal Jurisdiction Particularized.

Posted on September 01, 2009
The seeds of legal change often are found in unpublished, Circuit opinions. Among that mix are decisions interpreting, expansively, the Supremes’ remarks about adequate pleading in the Twombly and Iqbal cases. Serious parsing and explanations emerge when a panel decision extends the “plausible” requirement, without at the same time, implicitly amending federal civil procedure rules [...

Implementing A Method of Suing for Theft of Patented or Publicly Known Secrets.

Posted on August 28, 2009
The Ad world tends to self-publicize events involving itself, such as the suit against WPP and JWT arising from an ad campaign for Microsoft’s Bing search service (they’re so cool, everyone in the club knows them by their initials). News reports suggested a patented method to produce a “program-intergrated advertisement” was allegedly infringed...

SOX Whistleblower Liability Claim Raised by Firing IP Lawyers Who Reported Possible Inequitable Conduct by a Merger Party.

Posted on August 18, 2009
Husband & wife IP lawyers, working in-house, raised with their superiors the possibility of a material, pre-merger non-disclosure by a merger partner about its key patent, which could impact the post-merger revenue that the patent may generate. Within weeks, both lawyers were fired by execs who came over from the merger partner...

CAFC Could Be Cited As Authority In Rocket Clemens Defense.

Posted on August 13, 2009
Showing their every-widening expertise in everything from IP to HGH to Latinisms, the Federal Circuit has reversed 2-1 a decision over the firing of a federal correctional officer, who had tested positive for steroids after losing his bout in a Ultimate Fighting Championship event UFC 75 in London...

Colting Caught in the Rye, with Friends.

Posted on August 11, 2009
An expedited appeal to the 2nd Circuit {09-2878 by the author known as J.D. California} of the injunction against his unauthorized sequel to Salinger has garnered several amici, including some IP Law professors.  As briefs by amici-teachies tend to be, this one is a position paper on the fair use/transformative test and against a presumption of irreparable harm when [...

If enough air is released, everyone held aloft by the joint defense balloon may need to have packed their own parachute.

Posted on August 10, 2009
An article by Zuzha Elinson in The Recorder points out the risks attendant to joint defense groups in patent litigation. The prime risk is being unprepared to go it alone when everyone else settles out around you. Two cases are mentioned, one defense verdict and one for the plaintiff, from which it is implied that [...

I?m Sorry Dave, but copying this program into RAM is too important for me to allow you to jeopardize it.

Posted on July 14, 2009
In Quantum Sys. v. Sprint Nextel, 2009 WL 1931196 (4th Cir. July 7, 2009), the panel unpublished that they had followed the 9th Circuit’s MAI Sys. v. Peak ruling, which deems loading software into RAM the making a “copy,” which is “sufficiently fixed for purposes of copyright infringement...

About my lapsed patent, unpaid maintenance fees and the contours of your breaches, ?See you in Court? - somewhere.

Posted on July 13, 2009
A Michigan legal malpractice suit against patent attorneys, alleged a lapse due to unpaid maintenance fees, having to settle patent litigation on unfavorable terms, as well as “sundry other breaches … the precise contours of which breaches are not altogether clear from the Complaint...

No Friends in the Diamond Business.

Posted on July 12, 2009
A later-filed, Lanham Act suit between two diamond merchants, which sell ‘enhanced’ gemstones, hits on the issue of standing. In Diascience Corp. v. Blue Nile, Inc., 2009 WL 1938970 (S.D.N.Y. 2009), the district court revists the somewhat unresolved law of Lanham Act standing...

9th Cir. Cues The ?Traveling Music? for a Prevailing Copyright Party.

Posted on July 01, 2009
In reversing an award of substantial attorneys fees in a copyright case, a Ninth Circuit panel reversed another panel’s seventy-year old ruling about whether a voluntary dismissal without prejudice makes the defendant a “prevailing party.” In Cadkin v...

Maybe Patent Agents Were Needed In Puerto Rico.

Posted on June 19, 2009
It’s a short trip from S. Florida to Puerto Rico, but what’s there to do there. You could stroll a white sand beach along Playa Brava, or spend eight hours at the Univ. P.R. - Mayaguez making an illicit copy of a standardized exam. The defaulting defendant in National Council of Examiners for Engineering and [...

That Big-Ole Defense Went Down Well.

Posted on June 18, 2009
A jury verdict against Jammie Thomas for downloading, and making available, 24 copyrighted songs, totals $1.92 million.  The RIAA never will be able to collect on this Dr. Evil sized penalty, but still, it?s a win.

I ?Know a Guy? - Generically Speaking.

Posted on June 17, 2009
One word added to the parlance, but still known as “fixed” to a novel and film is “The Godfather.” Capece? It seems the term is at once, unique and attributable to the Puzo book and Coppola film, while too being generic and adjectival...

The Unbearable Pointlessness of the Fight.

Posted on June 14, 2009
Litigation, especially over property to which the litigant has an intellectual connection, tends to be hard fought - but then, the stakes often are so high. The continuation of a business, and the employment of those pursuing that business, hinges upon the litigation outcome...

The Blawger?s Body of Evanescent Work.

Posted on June 11, 2009
One attraction of intellectual property is that, although the exclusive rights are for “limited times,” the I in IP embodies an element of immutability. Even after IP is devoted to the public domain, the invention was one that persons of skill in the particular art, at the time of invention, would consider new, useful [...

Thou Shalt Not Convey Away Just Before Reckoning Day.

Posted on June 05, 2009
When an owner/patentee feels the ship listing, then the IP often gets assigned, reclaimed, conveyed, etc. TNo specific or legal remedy can prevent this, but typically pleaded is an action for imposition of a constructive trust, as in The Compak Companies v...

In re Bilski - Could be Transformative

Posted on June 01, 2009
News that the Supreme Court will review In re Bilski is quick to set off currents of speculation.  In its un-reviewed form, Bilski was relief from the State Street hangover and was a work-around to the stunted state of reforming the Patent Act.  Now, one wonders how the Supremes can keep intact their string of smackdowns [...

Self-Congratulatory Moment.

Posted on May 26, 2009
May celebrates Historic Preservation month, http://www.preservationnation.org/take-action/preservation-month/. Those who have contributed to the preservation and adaptation of historic places in America are celebrated by The National Trust for Historic Preservation, as well as by local bodies...

That Judge Said Disgorge, and I Say Much More.

Posted on May 22, 2009
Alas, the sphere of copyright protected musical works is too often penetrated by pirates, and if Gilbert & Sullivan still could craft a tune, they’d bemoan that what’s been gained is now often lost. This fine, and hallowed, Memorial Day weekend, will include some time listening to some faves on the radio or media player, [...

$540 for Your Thoughts, Sir.

Posted on May 20, 2009
Rulings on counsel fee motions give some idea of what IP litigators charge, as well as how much courts are willing to award, for New York minutes. Reduced fees were awarded in a ruling yesterday in a case over “patterns, fabrics and color schemes that are identical or virtually identical to the patterns, fabrics and color schemes [...

Divebombing The Yellow.

Posted on May 19, 2009
Guess what color is a registered trademark of Wham-O for water slide toys? The answer is in the Ninth Circuit’s affirmance Friday of a verdict finding willful infringement of the color yellow. 2009 WL 1360963. Wham-O was able to preclude testimony by the infringer’s expert on the topic of the “competitive advantages offered by use of [...

Some Laches Getting Down to the `Skins.

Posted on May 19, 2009
The D.C. Circuit has affirmed the ruling that laches bars Native Americans claim of disparagement by the use of the mark “Washington Redskins.” 2009 WL 1350607. It took only from 1992 until 5/15/09 to reach that issue. What threshold prejudice was there in the time that passed from registration of the mark, in 1967, up to [...

Did the Oracle Ever Speak of The Balance?

Posted on May 15, 2009
If you?ve been to Delphi, and stood at the ruins of Oracle, looking off toward the valley, wondering whether it lies at the line between the cosmological, the meta- and the physical, hinged over a sorcerer?s stone, and not far from the touristical, then you must?ve been experiencing a lot of demestica on that trip...

A Path that is Wide, but the Gate is Narrow.

Posted on May 15, 2009
How many roads must a patentee go down, before he can see the sky?  The patentee wishes to invest in plowshares, but those infringers divert some of the budget to swords.  Then, at the reckoning, what is gained. Passages from two recent decisions that deny post-judgment recoupment remind us that when the fire burns out, there [...

Still Trying to Make the Grade.

Posted on May 14, 2009
As the mid-point of 2009 approaches, I hope to get re-grounded in that somewhat worthwhile pursuit of blawging.  As the year began, I had the pleasure of being the guest blawgger on techlawforum.net.  Doesn’t look like anyone picked up that gig after I left it...

Postscript at Closure.

Posted on August 28, 2008
This IP blog took to cyberspace in August, two years ago.  Now, after 150 posts and 350,000 visits by readers, I’m closing it down.  I’ll still read every CAFC case, and take in most every IP case that I can find {thanks PACER}.  My conclusion, though, is that the ’space’ occupied by IP blawgers is overcrowded and [...

I Covenant, No I Condition, Not To Infringe Your Copyright.

Posted on August 13, 2008
Not since the Sixth Circuit decided Mike’s Train House v. Lionel LLC, around Xmas/Hannukah 2006, has the notion of grown-ups, wearing judges’ robes, arguing over how to run model railroads, come into mind. Until now, with the CAFC’s ruling in Jacobsen v...

When ?Fudging? Conduct is Inequitable.

Posted on July 27, 2008
Many proposals for patent reform legislation suggest changes to the inequitable conduct defense. One proposal is that the defense strictly require information material enough to get the a patent rejected or granted.  Just checking the wrong box on a form would not be material enough...

Had the CAFC been Jurors, They?d Have Told the Judge to Grant a Directed Verdict.

Posted on July 21, 2008
A first read of Muniauction v. Thomson left a bewilderment - was this the worst CAFC decision of 2008, or one of the worse patents in a 2008 appeal.  Such thoughts continued, until the complete fog thinned to a thin veil of haze.  It’s a candidate for both awards...

Originality is Elemental, but is it Art.

Posted on June 30, 2008
The protection of visual and artistic works is the stock and trade of the Register of Copyrights. These works do not have to aesthically pleasing or critically acclaimed, only original. The 10th Circuit’s recent decision in Meshwerks, Inc. v. Toyota has kept me perplexed through the weekend...

With Pavao, You?ve Got the Power.

Posted on June 25, 2008
In a non-precedential show of its power, the CAFC reversed de novo in another case involving a JMOL motion reviewed under Ninth Circuit law. In today’s ruling in Heuft v. IDC, the panel finds a prosecution disclaimer in a parent patent, applies that to claims later issued from a divisional, then rules in toto on infringement, even [...

This 13 Thing Keeps Coming Up Decisively.

Posted on June 13, 2008
There’s a lot to think about on a Friday - do I have charcoal, will it rain, how come I’m still working on Monday’s work, what the numbers on my paycheck mean - oh, and that it is the 13th.  For all those lucky birds who were born on Friday the 13th, what can you tell [...

As I Had Said, I?m Saying What I Claim It Means.

Posted on June 04, 2008
June is off with a CAFC case in which the same counsel that prosecuted the patent argued for a non-literal interpretation of the issued claims.  If the client thinks that the patent you prosecuted will protect against infringement, then when you are asked ‘does it cover this,’ you may wonder how Markman would interpret the saying, ‘in [...

The USPTO Assuredly Takes No Blame.

Posted on May 30, 2008
When a deadline is missed or a requirement passes without response, learned patent counsel file a petition seeking relief. Experience with petitions has shown that the contentions that often fail are: blaming the USPTO or claiming that it contributed to the problem, arguing against the unfairness, or expressing surprise or dismay about the situation...

Representing Your Own Exceptional Prosecution, Less Often.

Posted on May 28, 2008
Take an unscientific sample (1 month of CAFC rulings), sum how many times attorneys who prosecuted the application also presented the case in court, and draw nebulous conclusions therefrom (and before the month is over). In May, there were 13 decisions where the attorneys named on the issued patents could be compared with those listed as [...

Rule from 1880?s Against Broadening Amendments In Reexams Is Non-Precendential.

Posted on May 27, 2008
Today’s CAFC ruling in SWBT v. Collins, (5/27/2008), affirms a ruling that, in part, disallows an amendment in the reexam of a patent in litigation. The rule prohibiting broadening amendments in reexam goes back to the Bridgeport Brass, 104 U.S...

Civil to the Crime Bar, But Less So to the Civil Bar.

Posted on May 23, 2008
With regularity, CLE presentations on ethics are devoted to “civility” among lawyers, esp. litigators (that’s an alligator not in an alley), but not much about judging with civility. For many years, and in many vicinages, patent litigators acome with the reputation of being painful to deal with or outright obnoxious...

Patent Sharks and a Euro Perspective on Circumnavigating Them.

Posted on May 19, 2008
The June issue of Harvard Business Review published the opinion and suggestions of Prof. Henkel of Munich Univ. of Tech., and Asst. Prof. Reitzig of the London Business School, about the pursuits of “patent sharks” in the U.S.  While no mentions of the CAFC, or of any past or proposed patent reforms, was refreshing, the [...

That Uncertain Region Provokes Tension in the Districts.

Posted on May 16, 2008
Ah, the smell of the first nonprecedential opinion and a cup of java to start the morning. In a judgment order, the CAFC affirmed the non-infringement ruling in Airgo v. ArvinMeritor. Was the uncertain region between interpreting the spec and importing elements into the claims mentioned? The CAFC mentioned nothing, but in reply to the [...

Might Free IP Save the Poor from their Lot?

Posted on May 15, 2008
Thomas Berg (University of St. Thomas, St. Paul/Minneapolis, MN - School of Law) has posted the abstract of Intellectual Property and the Preferential Option for the Poor (5 Journal of Catholic Social Thought 193 (2008). As abstracted, Professor Berg’s paper advocates elimination of IP restraints so as to provide benefits, such as patented medicines, to [...

I can CAFC clearly now that No. 2 infringes.

Posted on May 13, 2008
The CAFC acknowledges the need for split brain logic when assessing that ‘branch’ of res judicata known as claim preclusion, as just set forth in Acumed v. Stryker. On claim preclusion standards, the CAFC followed the law of the regional circuit, but when it determined what “claim” is or may be precluded by a prior [...

Still the Most Unclear Region in the Area Between the Described and Claim Embodiments.

Posted on May 08, 2008
In a semantic universe created perfectly, where all lines and orbits are uniform, there would be no need for Markman rulings. Everything would be clear. If that universe was instead, near-perfect, then the interpretive rules would uniformly delineate when the description of the preferred embodiment is done to provide an enlightened interpretation, and done to [...

No Yardwork, it?s the First Saturday in May.

Posted on May 01, 2008
The recent Markman ruling in Toro v. Ingersoll-Rand, 06CV3073 (D. Minn. 4/21/08), came after an earlier order “barring admission of extrinsic evidence, including expert witnesses,” citing, Inpro II, 450 F.3d 1350, 1357. No one apparently qualified as a hypothetical person of ordinary skill in walk-behind mechanics...

Results are Worthy Goals For Experts, but Principled Reasoning is Worthier.

Posted on April 16, 2008
Prior posts dealt with legal experts and the uncertain edge between copyright claims governed by federal law, and distribution contracts subject to state law. In a software infringement, and unauthorized distribution, case, there already may be expert issues of “substantial similarity” on a functional or instruction level...

IP usw. but IT today.

Posted on April 15, 2008
It’s acronyms in April.  Today, PCI compliance, which are the industry standards set by the Payment Card industry.  There may be an incestuous affair between lawyers and the merchants of software and hardware.  A problem gets publicized, the lawyers promulgate laws and regulations, and companies have to buy software and consultants’ services to meet those [...

Anonymity, Deux, Also Ending.

Posted on April 04, 2008
The prior post about challenges to anonymous bloggers and sniping commentors put me in touch with the recent ruling allowing a defamation claim to be pleaded against a commentor to a blawg. The ruling, on Leap Day, in Document Security v. Adler Tech. 03CV6044 (W...

Named as a Derivative Work of Twombly, in 3 notes.

Posted on April 03, 2008
In losing a case over the copyright holder’s 106(3) exclusive right of distribution, one reads every case and all of the legislative history on the subject. Even when studied, the distribution right protected by copyright has fuzzy contours and intangible aspects...

Anonymity Is Not the Best Policy.

Posted on April 01, 2008
It’s old news that the Troll Tracker got outed, and that his employer established a new policy on employee blogging.  Now, the SCOTUS blog, which fulfills the role of quasi-official blog of the U.S. Supreme Court, has announced their policy decision to disable the “comments” section...

RIP.

Posted on March 29, 2008
Lance Corporal David Newcomb, USMC, 22, of Bardstown, KY.  A soldier gives, and gives, and gives. A war takes, and takes, and takes.

A Less Recognized Form of the Bush Stimulus Plan.

Posted on March 27, 2008
Sure, some will get $300 to stimulate our economy, but ‘wait there’s more.’ The Order of the week, thusfar, comes from 3Com v. Realtek, 03-2177 (N.D. Cal.), in the form of a mandate to “furnish daily refreshments for the members of the jury in the above-entitled matter at the expense of the United States effective March 24, [...

How Many Definitions Before Ambiguity Is Reached.

Posted on March 21, 2008
My Google search for ambiguous and “federal circuit” yielded over 81K linked pages (probably including “ambiguous books, click [Amazon] Here,” and “Hotels in Ambiguous, click here”).   Years of ‘going Markman’ on the language has resulted in having one full shelf of dictionaries...

CAFC Goes Nonprecedential to Prescribe Patent Litigation Practice Pointers for Counsel and Judges.

Posted on March 19, 2008
One past ‘practice in the vicinage’ of the SDNY was for a Judge to announce a rule in open court. Only those attorneys who happened to be there that day heard this new, unwritten rule. It worked for those firms that were in court everyday, but for those there occasionally, it could work a hardship...

Some are Experts, Others Just Provide Opinions.

Posted on March 18, 2008
Two points of interest about patent suit experts come out of the pretrial ruling in Seitz v. Envirotech Sys., 4:02CV4782 (S.D. Tex. 3/6/2008). The named plaintiff, apparently, had years of experience running his tankless water-heater company, and also, “twenty years of experience in corporate finance and mortgage banking...

New Matter is Nonprecedential and Unexceptional.

Posted on March 17, 2008
When preparing to argue a case to the CAFC, you may get there early and wander about, and even read from the bulletin board what recent rulings have issued. The nonprecedential ones, with a one-liner per curiam order, create curiousity - what was no meager among the issues presented...

Caution About Case Management Orders ?For Discovery Only.?

Posted on March 11, 2008
Rule 16 scheduling orders “control” further proceedings in a case. Parties may stipulate to Rule 16 limits on discovery, thinking that the final pretrial order will become the governing document at trial. For example, counsel may agree to limits on depositions, which would be unpalatable during trial...

Must Have Been More Original Than The Many Others.

Posted on March 10, 2008
A local TV news anchor, whose on-air name is Catherine Bosley, was a wet T-shirt contest participant in Florida in 2003. She claimed back the photos of her, resigned from her TV job, then registered the photos for copyrights in 2004.  In a prior case, an injunction against use of the photos was stayed on [...

Being a Zealous Advocate Precludes Ratting On a Client.

Posted on March 07, 2008
All the recent furor over the sanctions imposed on the client and counsel in the Qualcomm v. Broadcom (05CV1958 S.D. Cal.) took a real turn. The Magistrate ruled on the sanctions, and now, the Judge has vacated the sanctions as to the objectors. The issue was the “self-defense exception” to the privilege against disclosure of [...

A Method as Novel as Making Silver Jewelry in Mexico.

Posted on March 05, 2008
Patent cases often are easy to spot on PACER, especially from the docket of the N.D. Cal.  The typical format for the style of the case is E-something vs. I-something, or Patent Holding Portfolio LLC vs. Fortune 500 name.  Familiarity with those style conventions almost made me miss a recently-filed patent case styled, American Mexican [...

A Virtual Agent Answered the Phone, and 2 Suits Broke Out.

Posted on March 04, 2008
Maybe it’s just an earmark of impatience, but how annoying is it when your call for service on your insurance or bank business is answered by an “automated attendant.” Imagine being in a noisy, downtown emergency room, and calling for “pre-authorization” approval to have your jaw wired shut, and trying to explain that to a [...

Patent Reform Dayplanner.

Posted on March 03, 2008
Instead of devoting time to reading legislative rumblings about patent reform bills, or perusing lenghty studies about ‘bad’ patents and scumsucker patent plaintiffs, or searching for some common threads among all the amicus and public-interests commentaries about patent reform, it seems a better use of time to propose some radically simple change to the patent [...

Blue Moon Rises over CAFC.

Posted on February 28, 2008
Whenever a CAFC panel suggests that there is a doctrine of equivalents, it’s like a sighting of the Yeti or the Loch Ness monster.  Usually, they are just teasing with the possibility, writing about it in some non-final appeal - which later returns and the DOE then is slaughtered...

Reconsider State Street, en banc, That?s Big!

Posted on February 15, 2008
Today, your CAFC issued an order for en banc consideration, not a rehearing, but an en banc review, including whether to tie a process to a tangible device or result, and whether to reconsider the State Street and Excel cases on business methods.  That will be very big!  Guess the CAFC likes its role as [...

Behind the Curtain of Non-Precendence - Ampex v. Kodak.

Posted on February 07, 2008
The CAFC used to webpublish only rulings it deemed precedential, but that recently changed. Their publication now of per curiam affirmances gives rise to curiosity as to what made that one case unworthy of anything more wordy. Consider today’s order in Ampex v...

The Rejected Option of Contradicting the Other Side?s Expert.

Posted on January 31, 2008
Last week’s lesson was to have testimony in reserve to rebut your own expert, as U.S.D.J. Walls suggested. This week we learn that it is impermissible for one expert to parse the opinions of the other side’s expert. The CAFC in TIVO v. Echostar, (1/31/08) affirmed a ruling that prohibited a defense expert from giving [...

The Underconsidered Option of Using Contradictory Experts.

Posted on January 22, 2008
The judicial acorn of wisdom to patent litigators in 2008 comes from the Hon. William Walls (D.N.J.).  “Defendant’s counsel did not see the necessity of providing expert testimony to aid the Court in understanding the term.  “The more fatal point is that defendants did not provide expert testimony to rebut their own witness, Dr...

Quick Justice Curbs Some Practices.

Posted on January 17, 2008
Digging into Innogenetics v. Abbott Labs, (1/17/08 CAFC), you find a case that went from filing through trial in the W.D. Wisconsin in only one year. That is a laudable goal for patent litigation. While swift justice is hoped for, an accompanying feature is that some proofs and strategies get cut away...

There?s no rule against blawg-citing a non-precedential, interlocutory ruling, with dissent, from the CAFC.

Posted on January 15, 2008
In the typical, nonprecedential CAFC ruling (if any there have been), the rule of plain and ordinary meaning is applied. The atypical exception is where a ruling is denominated nonprecedential as a way to relegate it to the waste heap of deviations from precedent...

Still no Legal Experts in D. Del.

Posted on December 21, 2007
From the time of my first patent trial in Wilmington, DE, around 1990, the standing order there was no “legal experts.”  It was a good rule then, and now, but now the CAFC and the Supreme Court have mixed legal rules with factual issues.   Still, in a bench trial, it is close to a professional [...

Dismissive of the Fact of Being Reasonably Willful.

Posted on December 07, 2007
What chance would you give a Rule 12(b) motion to dismiss a claim of willfulness?  That motion won in Abbott Labs. v. Sandoz, (N.D. Ill. 12/4/2007).  This suit was later-filed over infringement by a generic substitute.  In prior suits over the same patent, the Federal Circuit had vacated a preliminary injunction due to “substantial questions” [...

The Tasini authors copyright case get Article III?d

Posted on December 06, 2007
Before the turkey and dressing were still getting frequent re-heatings, the Second Circuit had another sitting with the class of authors who’d licensed their works for print publication but not for later digital archive publication.  After the final rulings in the Tasini case, suits were consolidated, a class was certified, and a settlement was approved...

The World As We Knew It.

Posted on October 12, 2007
In today’s CAFC ruling In re Translogic, the panel recalls the observations and mandates made in the KSR v. Teleflex decision.  It really is the first CAFC opinion that gives more than a quick quote or cite to the KSR case.  In the context of a reexamination decision, the CAFC panel goes further to acknowledge [...

Only Use Rule 11 on Trolls After Going Thru the Motions.

Posted on September 27, 2007
My Oct. 11 `06 post overstated the utility of Rule 11 to excise cases that plead infringement like a mass tort by a class of internet merchants.  It was overstated, as a presently available remedy, because now the CAFC has reversed the R. 11 sanctions assessed in Eon-Net L...

CPA needed for correcting entries to Vonage?s ledger.

Posted on September 26, 2007
Yesterday, a KC jury hit Vonage with a $69.5M judgment for infringing Sprint’s patents.  That was on top of a $58M award to Verizon for infringement by Vonage.  Today, the CAFC tossed the $58M award, but on grounds that will result in reinstatement of a fairly large chunk of that award...

CAFC Theory of First-Sale and Patent Exhaustion Gets Cert.

Posted on September 25, 2007
As if the Supremes hadn’t heard enough patent cases to span a lifetime tenure, now, cert was granted to review Quanta v. LG.  The petitioned argued that the CAFC has been making law rather than following Supreme Court precedent. More to come on this, but this September my bets are against patentees in the CAFC, and against the [...

Patentees Zapped, Garroted, Trounced at CAFC in Sept.

Posted on September 20, 2007
If I were a betting man, then virtually all of the CAFC rulings in Sept. indicate that it’s wise to bet against the patentee.  The patentee - the one who spent the R&D and market-entry money, took loans, diluted the stock, paid for the patent prosecution, etc...

False Light Claim vs. Borat Has Enough Twombly to Proceed.

Posted on September 19, 2007
Several mysteries were exposed by the movie Borat.  Non-actors were so mystified by the actor playing Borat, that they freely acted foolishly in what they believed was a documentary.  Borat learned that Pamela Anderson had shared her mysteries, such that his desire for her to be his bride was negated (those who love can be the last [...