Intellectual Property Law

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There?s no rule against blawg-citing a non-precedential, interlocutory ruling, with dissent, from the CAFC.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In the typical, nonprecedential CAFC ruling (if any there have been), the rule of plain and ordinary meaning is applied. The atypical exception is where a ruling is denominated nonprecedential as a way to relegate it to the waste heap of deviations from precedent...

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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 [...

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