19 Tuesday Jun 2018
Six Benchslaps to Brighten Your Day, by Lisa Needham, Lawyerist.com
https://lawyerist.com/six-benchslaps-will-brighten-day/
As Ms. Needham describes it, “[f]or the unfamiliar, benchslap originally referred to one judge snarking at another, but now refers to any time a member of the bench crushes an attorney with wit, rage, or both.” It is also an excellent example of what not to do. -CCE
08 Sunday Nov 2015
Posted in Bad Legal Writing, Intellectual Property, Legal Writing, Legalese, Patent Law, Plain Language, Readability
≈ Comments Off on The Effort to Make and Keep Patents Correct and Clear.
Tags
Dennis Crouch, Intellectual Property, Michelle K. Lee, PatentlyO Blog, Patents, Plain Language, US Patent and Trademark Office
Director Michelle Lee: Moving toward Patent Clarity, posted by Dennis Crouch, PatentlyO Blog
The following is a post from Under Secretary of Commerce for Intellectual Property and Director of the USPTO Michelle K. Lee and was published on the PTO Director’s blog.
Patent quality is central to fulfilling a core mission of the USPTO, which as stated in the Constitution, is to ‘promote the Progress of Science and useful Arts.’ It is critically important that the USPTO issue patents that are both correct and clear. Historically, our primary focus has been on correctness, but the evolving patent landscape has challenged us to increase our focus on clarity.
Patents of the highest quality can help to stimulate and promote efficient licensing, research and development, and future innovation without resorting to needless high-cost court proceedings. Through correctness and clarity, such patents better enable potential users of patented technologies to make informed decisions on how to avoid infringement, whether to seek a license, and/or when to settle or litigate a patent dispute. Patent owners also benefit from having clear notice on the boundaries of their patent rights. After and after successfully reducing the backlog of unexamined patent applications, our agency is redoubling its focus on quality.
We asked for your help on how we can best improve quality—and you responded.
01 Thursday Oct 2015
Posted in Drug Promotion, Government, Health Law, Health Reform, Intellectual Property, Patent Law, U.S. Department of Health and Human Services
≈ Comments Off on Could Lawyers Fix The Rising Cost of Medicine?
Tags
Cancer, FDA, Litigation & Trial, Max Kennerly, Medicaid, Medicare, Pfizer, Prescription Drugs, RICO, Schering–Plough
Send In The Lawyers: A Partial Fix For America’s Dystopian Prescription Drug Market, by Max Kennerly, Esq., Litigation & Trial Blog
It’s hard to read any news about prescription drugs these days without wondering if you’ve somehow fallen into a Philip K. Dick novel. Just look at some of these titles over the past week:
- ‘2 new studies show the FDA is rushing more drugs to market based on shoddy evidence’
- ‘The True Cost of an Expensive Medication’
- ‘U.S. drug company sues Canada for trying to lower cost of $700K-a-year drug’
- ‘Outrage could lead to lowering price of high-cost drugs’
All of these stories are about different drugs, but the common theme among all of the stories is, of course, money. The Mayo Clinical Proceedings recently found ‘In the United States, the average price of cancer drugs for about a year of therapy increased from $5000 to $10,000 before 2000 to more than $100,000 by 2012, while the average household income has decreased by about 8% in the past decade. Further, although 85% of cancer basic research is funded through taxpayers’ money, Americans with cancer pay 50% to 100% more for the same patented drug than patients in other countries.’ . . .
28 Tuesday Jul 2015
Posted in Copyright, Fair Use, Intellectual Property, Patent Law, Trademarks
≈ Comments Off on How To Take Out Trademark Bullies.
Are Trademark Bullies Bringing Plausible Claims? by Guest Blogger Draeke Weseman, Weseman Law Office, PLLC, Duets Blog
Intellectual property enforcement continues to make news, and new solutions to curb abusive enforcement – i.e. trademark bullying, patent trolling, and copyright trolling – are being proposed regularly. Central to these solutions is the idea of a ‘fast-lane’ that kicks bad claims to the curb before the bullied or trolled party has incurred significant legal costs. . . .
27 Saturday Jun 2015
Posted in Intellectual Property, Legal Ethics, Patent Law, Sanctions
≈ Comments Off on Attorney Fee Awards For Misconduct On A Winning Streak In Federal Court.
Federal Circuit: Bad Lawyering! = Sanctionable Litigation Misconduct, by Dennis Crouch, PATENTLYO Blog
“The opinion here was authored by Judge Dyk and joined by Chief Judge Prost and Judge Bryson.(Read the decision: Gamma v. CSU).”
Attorney fee awards have been on a hot-streak since the Supreme Court’s 2014 Octane Fitness decision lowering the standard for proving an ‘exceptional case’ under 35 U.S.C. § 285.
Under the statute, a district court judge is empowered to award ‘reasonable attorney fees to the prevailing party’ to a patent infringement lawsuit, but only in ‘exceptional cases.’ Id. In Octane Fitness, the Supreme Court gave the lower court fairly wide latitude in deciding exceptional case judgment and the award of fees. In particular, courts are given authority to consider the totality-of-the-circumstances when determining whether a fee award is appropriate. In the parallel case of Highmark, the court held that those lower-court determinations should be given deference on appeal. . . .
19 Sunday Apr 2015
Posted in Copyright, Intellectual Property, Patent Law, Trademarks
≈ Comments Off on Intellectual Property Links and Resources.
Patent Litigation – Been Sued or Gotten a Demand Letter? by uspto – United States Patent and Trademark Office Blog
Regardless of whether you are a novice or expert in intellectual property law, you should find this website helpful. It has many FAQs, resources, and other tools to help the inventor and those you work in this area of the law.
Click on http://www.uspto.gov/learning-resources for more links to resources for the legal profession, educators, inventors, and others, including instructions for filing online. Nice laid out, comprehensive, and easy set up alerts for fee and rule changes. Definitely worth a look. -CCE
Answers To Common Questions About Abusive Patent Litigation
Received a letter about or been sued over a patent? You’re in the right place. See below for answers to common questions: (Trademark-related resources) are also available.) . . .
12 Thursday Mar 2015
Posted in Appellate Law, Case of First Impression, Intellectual Property, Patent Law, United States Supreme Court
≈ Comments Off on Patent Law’s Most Influential Supreme Court Decisions From 2005 through 2015.
Most Cited Supreme Court Patent Decisions (2005-2015), by Dennis Crouch, PATENTLYO Blog
The list below considers all of the U.S. Supreme Court patent cases decided during the past decade (Since January 2005) and ranks them according to the number of citations. Citation offers some insight into the influence of decisions, but is obviously limited for a number of reasons. Cases may be cited because of their importance in changing the doctrine (KSR, eBay) or simply as the court’s most recent statement of the law on an important issue (Microsoft v. i4i and KSR) or for a narrow procedural issue that applies in many cases (Unitherm). Bay’s high citation rate is also boosted because its principles have been applied broadly to injunctive relief across many areas of law. Some cases with low citation counts may also have major impacts. They may, for instance impact a small number of very important cases (Caraco) or perhaps they cause folks to change behavior so that the issue stops arising.
With this list we also have the timeline problem where older cases are more likely to be highly cited since there has been more opportunity for those cites. I Alice Corp to rise in the ranks Nautilus and Teva, on the other hand, may well flounder (based upon the Federal Circuit’s treatment of those cases thus far). . . .
18 Wednesday Feb 2015
Posted in Intellectual Property, Litigation, Patent Law
≈ Comments Off on Which Party Bears The Responsibility For The High Cost of Litigation? Plaintiff or Defendant?
Tags
Defendant, Dennis Crouch, Gene Quinn, IP Watchdog, Litigation, Patent Lawsuits, PatentlyO Blog, Plaintiff, Wall Street Journal
Who Is To Blame For High Litigation Costs: Plaintiffs For Filing The Lawsuits Or Defendants For Refusing To Deal And Instead Fighting?, by Dennis Crouch, PatentlyO Blog
The recent WSJ op-ed by John Chambers (CEO Cisco) and Myron Ullman (CEO JCPenny) is interesting, but largely not compelling. What the article does do is indicate that patent lawsuits is the avenue being by non-practicing patent holders and it is pretty clear that manufacturers and retailers would be better off (at least in the short term) without being charged with patent infringement. The core of their argument is here:
A 2012 study by Boston University researchers estimated that companies spent upward of $29 billion a year defending patent lawsuits, and the problem has not let up. According to RPX Corp., more than 3,600 companies and named defendants were sued by so-called patent-assertion entities in 2014, triple the number in 2006. Patent-assertion entities—aka non-practicing entities, or as some would call them, trolls—that own patents but do not make products or sell services based on them file more than 60% of patent litigation in the U.S.
A civil lawsuit generally comes about based upon a failure of the parties to negotiate a just solution. Of course, for any given lawsuit, we don’t know beforehand whether it is the plaintiff or the defendant who is being more unreasonable.
The op-ed suggests that the plaintiffs are to blame for filing the lawsuits, but there is also a strongly compelling case for arguing that the defendants are to blame for refusing to deal and instead fighting every lawsuit tooth-and-nail. When reach a point where out-of-litigation resolutions are rare, we should recognize that it is a systemic problem. And, at this point – where the primary complaint is high litigation costs – the solution is not to favor one side or the other, but instead to look for systemic changes that substantially decrease the cost of resolution.
Gene Quinn provides his take on the op-ed at IP Watchdog.
08 Saturday Nov 2014
Posted in Discovery, E-Discovery, Intellectual Property, Motion to Compel, Patent Law, Requests for Production
≈ Comments Off on To Decide Motion To Compel, Court Asks Whether Discovery Was “Fair.”
Considering Motion to Compel, Court Asks Whether Discovery Responses Have Been “Fair,” by K&L Gates
Finjan, Inc. v. Blue Coat Sys., Inc., No. 5:13-cv-03999-BLF, 2014 WL 5321095 (N.D. Cal. Oct. 17, 2014)
In this patent infringement case, Defendant objected to ‘producing custodial email from archival systems when [the Plaintiff] is not able to do the same in return.’ Plaintiff filed a motion to compel. In assessing the motion, the court recognized potential limitations on discovery, pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii). The court indicated that, ‘[r]educed to its essence, Rule 26(b)(2)(iii) [sic] requires this court to decide: have Blue Coat’s discovery responses been fair?’ In response, the court concluded that the defendant’s responses had ‘largely been fair, but not entirely.’ Turning specifically to the question of custodial emails, the court reasoned:
Where Blue Coat has been less than fair is with respect to archival email for its eight custodians. Blue Coat may largely be in the right that it should not have to dig through legacy systems when Finjan is unable to the same for its custodians. But one party’s discovery shortcomings are rarely enough to justify another’s. And here, at least with respect to documents mentioning Finjan—the one specific category of documents Finjan could identify that it needed from archived email—Finjan’s request is reasonable.
A full copy of the court’s opinion is available here.
20 Sunday Jul 2014
Posted in Bad Legal Writing, Computer Forensics, Computer Fraud and Abuse Act, Computer Virus, Copyright, Criminal Law, Cybersecurity, Digital Millenium Copyright Act, Discovery, Encryption, Evidence, Finance and Banking Law, Fraud, Google, Government, Identity Theft, Intellectual Property, Law Office Management, Legal Technology, Legal Writing, Legalese, Malware, Management, Patent Law, PC Computers, Plain Language, Presentations, Search Engines, Trial Tips and Techniques, Trojans, Video
≈ Comments Off on 10 Top Law-Related TED Videos.
Tags
Copyright, Crime, Eyewitness, Fashion Industry, Government, Internet, Legal Productivity Blog, Legalese, Patent Troll, Plain Language, TED, Tim Baran
Top 10 Legal TED Talks, by Tim Baran, Legal Productivity Blog
http://www.legalproductivity.com/op-ed/top-10-legal-ted-talks/
Have you heard of TED? It began in 1984 as a conference and now covers a wide range of topics in more than 100 languages. Think of it as a massive brain trust that shares great ideas and information.
Each of the law-related TED talks listed in this article are worthwhile on their own: (1) four ways to fix a broken legal system; (2) eliminate legalese by using plain English; (3) how to beat a patent troll; (4) how the Internet will change government; (5) laws that choke creativity; (6) copyright law; (7) why eyewitnesses get it wrong; (8) how technology could make crime worse; (9) the Internet and anonymity online; and (10) how great leaders inspire. -CCE
11 Wednesday Jun 2014
Posted in Intellectual Property, Patent Law
≈ Comments Off on How Essential Are Graphics To The Judge And Jury In A Patent Trial?
Tags
Cogent Legal Blog, Hon. James Ware, Hon. Paul Grewal, Intellectual Property, Michael Kelleher, Patent Law, Trial Graphics, Trial Tips & Techniques
The Need for Graphics in a Patent Trial, and Other Insights from Judges, by Michael Kelleher, Cogent Legal Blog
Good graphics are critical for understanding patent cases. I mean real graphics, pictures, not just words on a PowerPoint. Seeing an illustration or an animation in a trial or a mediation is key to understanding the technology in a patent. − Hon. James Ware
After deliberations have finished, I’ve seen that the pictures were important to jurors because the whiteboards in the jury room often have the jurors’ reproductions of the pictures and diagrams that the attorneys used during trial. The juries are not writing out the long claims of the patents. Instead, they discuss the case in abstractions using those pictures from trial. − Hon. Paul Grewal
These judicial observations on graphics in patent trials came from a judges’ panel at last weekend’s Annual Meeting of the San Francisco Intellectual Property Law Association (SFIPLA) in Healdsburg, California. As usual, the annual meeting provided wonderful opportunities to learn about recent developments in intellectual property law and to network and relax with leading IP attorneys and judges. . . .
07 Saturday Jun 2014
Posted in Appellate Law, Intellectual Property, Patent Law, U.S. Court of Appeals for the Federal Circuit, U.S. Courts of Appeal
≈ Comments Off on Interesting Analysis of Federal Patent Appeal
Tags
Administrative Patent Challenges, Consumer Watchdog, Dan Ravicher, Inter Partes Reexamination, Patent Act
Federal Circuit: In Order To Appeal USPTO Post-Grant Decision, Third Party Requestor Must Show “Injury In Fact” by Dennis Crouch, Patently-O Blog
http://patentlyo.com/patent/2014/06/circuit-decision-requestor.html
Consumer Watchdog v. WARF and USPTO (Fed. Cir. 2014)
The Patent Act provides for a variety of administrative review proceedings that can be filed by any third party wanting to challenge the validity of an issued patent. The statute also provides the third-party requester with a right to appeal any adverse judgment to the Court of Appeal for the Federal Circuit. Following these statutory guidelines, Consumer Watchdog requested review (inter partes reexamination) of WARF’s patents covering human embryonic stem cells. When the USPTO sided with WARF, Consumer Watchdog appealed. But Consumer Watchdog has a major problem with its appeal – standing. Consumer Watchdog is a public interest group who is not being directly impacted by WARFs patents other than the general indignity felt by all of us.
As the appeal was pending, the Supreme Court decided Already v. Nike and reminded courts that, under the Constitution, they only have power over actual cases and controversies. At Patently-O, we used that case as a springboard for questioning whether the statutory appellate authority was sufficient to satisfy the demands of the Constitution, and the Court immediately called for Consumer Watchdog and WARF to brief the question of standing. . . .
20 Tuesday May 2014
Posted in Copyright, Intellectual Property, Patent Law
≈ Comments Off on Statute of Limitations And Copyright Infringement.
Tags
Copyright, Dennis Crouch, Infringement, Laches, Patent Law, PatentlyO Blog, Separate-Accrual Rule, Statute of Limitations
Supreme Court: In Copyright, Laches Cannot Preclude Actions Taken Within Three Year Statute of Limitations, by Dennis Crouch, PatentlyO Blog
Petrella v. MGM (Supreme Court 2014)
Frank Petrella wrote a screenplay back in 1963 based on the life of Jake LaMotta and assigned rights to UA/MGM who made the movie Raging Bull. Under the old renewal system, renewal rights went to Petrella’s heir, Paula Petrella, who renewed the copyright in 1991 in a fashion that (seemingly) eliminates the prior license. In 1998 she informed MGM that its continued exploitation of the Raging Bull movie violated her copyright. Finally, in 2009, she did sue – alleging copyright infringement.
Copyright infringement has a three-year statute of limitations indicating that ‘No civil action shall be maintained under the [Act] unless it is commenced within three years after the claim accrued.’ 17 U.S.C. §507(b). However, as in patent law, copyright follows a ‘separate-accrual rule’ that sees each successive violation of a copyright as a new infringing act with its own statute of limitations. Thus, under the statute of limitations, MGM could be liable for its post-2006 actions such as copying and distributing the work. . . .
10 Saturday May 2014
Posted in Divorce, Family Law, Intellectual Property, Marital Asset, Patent Law
≈ Comments Off on Are Patent Rights A Marital Asset?
Tags
Dennis Crouch, Divorce, Family Law, Infringement, Intellectual Property, Marital Asset, Patent, Patently-O Blog
Patent Rights are a Marital Asset and Non-Inventing Spouse is a Co-Owner, by Dennis Crouch, Patently-O Blog
James Taylor v Taylor Made Plastics (Fed. Cir. 2014)
I should note here that this case is neither about the musician or the golf club company. Rather, it is about the now fractured Taylor family and their patented pipe plugs. I discussed the district court decision earlier here.
Several years ago James T. invented storm drain equipment and obtained a patent in his name only. U.S. Patent No. 5,806,566. When he and his wife Mary T. later divorced, the divorce court ordered “equitable distribution of marital property” with Mary T. receiving 60% of proceeds from the patent and James T. receiving 40%. The divorce court seemingly only dealt with equitable title in the form of rights-to-proceeds and not with legal title to the patent itself. And, in particular, the divorce court did not identify who held the exclusive rights associated with the patent. . . .
04 Sunday May 2014
Posted in Intellectual Property, Patent Law
Tags
Apple, Martyn Williams, Patent Infringement, Patent Law, PC World News, Samsung, Silicon Valley, Smartphones
Jury Finds Samsung Infringed Some Apple Patents, Must Pay $120M In Damages, by Martyn Williams, PC World News
Apple was dealt a blow in its second major patent-infringement lawsuit against Samsung when a Silicon Valley jury awarded the iPhone maker damages of just US$119.65 million for Samsung’s infringement of several of its smartphone patents.
Apple had requested $2.2 billion in damages.
The decision by the eight-person jury came at the end of the third full day of deliberations. . . .
23 Sunday Mar 2014
The Meaning Of “Intellectual Property,” by Dennis Crouch’s Patently-O Blog
Energy Recovery, Inc. v. Hauge (Fed. Cir. 2014) 13-1515.Opinion.3-18-2014.1– Panel: Rader, Reyna, and Wallach (author).
At the heart of this case lies the question of ‘what is intellectual property?’ Here, the answer has more than philosophical implications: a finding of contempt hinges on it.
15 Saturday Feb 2014
Posted in Appellate Law, Apple, Google, Intellectual Property, Legal Technology, Patent Law, U.S. Court of Appeals for the Federal Circuit, United States Supreme Court
≈ Comments Off on Apple and Google Fighting Patent Trolls In the U.S. Supreme Court.
Tags
Allcare Health Management Systems, Apple, BloombergBusinessweek, Charlene Morrow, Cisco Systems, Facebook, Google, Greg Stohr, Intel, Octane Fitness, Patent Freedom, Patent Infringement, Patent Trolls, Silicon Valley, Susan Decker, U.S. Court of Appeals for the Federal Circuit, U.S. Supreme Court, Verizon, Yahoo
The Supreme Court Takes on Patent Trolls, by Greg Stohr and Susan Decker, Technology, BloombergBusinessweek
Apple (AAPL) and Google (GOOG) say they’re tired of being slapped with baseless patent suits that cost them millions in legal fees. Now they’re asking the U.S. Supreme Court to let them hit back. The two are leading a group of companies urging the court to make it easier for businesses to recover legal costs when they win a patent infringement suit. In two cases to be argued this month, the justices will hear them out.
More than 100,000 businesses were threatened in 2012 by ‘patent assertion entities.’ Often derided as patent trolls, these companies get most of their revenue from licensing patents and from suing other companies for infringement. They filed 19 percent of all patent lawsuits from 2007 to 2011, according to the Government Accountability Office. . . .
07 Saturday Dec 2013
Posted in Intellectual Property, Patent Law
≈ Comments Off on IP Law Professors Send Letter to Congress Seeking Anti-Troll Patent Legislation.
IP Law Professors Rise-Up Against Patent Assertion Entities, By Dennis Crouch at PatentlyO Blog
A group of sixty US intellectual property law professors have signed a letter to Congress supporting anti-troll patent reform legislation. This effort was driven by Professor Love of Santa Clara and is also signed by Professors Bessen, Goldman, Ghosh, Lemley, Meurer, Samuelson, Sprigman, and others. [Download ProfessorsLetterOnTrolls].
A key introductory line from the letter:
Despite our differences, we all share concern that an increasing number of patent owners are taking advantage of weaknesses in the system to exploit their rights in ways that on net deter, rather than encourage, the development of new technology.
01 Sunday Dec 2013
Posted in Intellectual Property, Patent Law, Trial Tips and Techniques
≈ Comments Off on Five Important and Volatile Issues in Current Patent Law.
The 5 Biggest Issues in Patent Law Right Now, by Ryan Flax, The Litigation Consultant Report Blog
24 Sunday Nov 2013
Posted in E-Discovery, Evidence, Intellectual Property, Legal Technology, Patent Law, Texas Supreme Court, Trial Tips and Techniques
≈ Comments Off on Trial of Historical Patent for Common Web Encryption of SSL in East Texas.
Tags
Amazon, Dennis Crouch, East Texas, Encryption, Erich Spangenberg, Michael Jones, Newegg, Patent, Ron Rivest, SSL, TQP
Newegg on trial: Mystery company TQP rewrites the history of encryption, by Joe Mullin, Law & Disorder/Civilization & Discontents (with hat tip to Dennis Crouch’s Patently-O!)
The story of Michael Jones, his mysterious invention, and the massive patent enforcer he’s working with is finally coming out at a patent trial underway in this small East Texas town.
Jones’ patent, now owned by famed patent enforcer Erich Spangenberg, has scared corporate America into writing one hefty check after another to avoid a trial just like this one. He and his lawyers say the patent covers the common web encryption scheme of SSL combined with the RC4 algorithm. The sums of those checks were revealed in court here on Tuesday when a TQP attorney displayed to the jury a spreadsheet with many of the payments.
23 Saturday Nov 2013
Posted in Adobe Acrobat, E-Briefs, Legal Technology, Patent Law
≈ Comments Off on Three Base Hit: An Analysis of Apple v. Samsung, Bookmarking in Adobe, and E-Briefs
Tags
Adobe Acrobat Bookmarks, Apple, Cogent Legal Blog, E-Briefs, Intellectual Property, Michael Kelleher, Patent Law, Samsung
An E-Brief Reading Guide to the Latest Decision in Apple v. Samsung, by Michael Kelleher, Cogent Legal Blog
This post is unique. Interesting analysis of Apple v. Samsung and a “how to” on bookmarking Adobe documents and creating and using e-briefs. CCE
