Submitted by patentadmin on Thu, 05/05/2011 - 16:54

Often, lawyers are accused of being rude, undignified, discourteous and just plain obnoxious in the courtroom (and elsewhere, but that’s another matter). They generally respond that they are merely meeting their obligation to vigorously and zealously represent their clients. It is certainly true that they have such an obligation; yet, there must be some point beyond which their behavior is simply unacceptable. While we don’t know exactly where this point may be, it was certainly far exceeded in one recent case, where boorishness reached new heights.

A Judgment Built On Sand

Submitted by patentadmin on Thu, 04/21/2011 - 22:39

No builder would try to construct a house without a proper foundation, as such a house would likely collapse. Similarly, no lawyer should try a lawsuit without laying a proper foundation for a favorable decision, as a judgment found to be lacking foundation will not survive a challenge. (Mirror Worlds LLC v. Apple Inc.)


Submitted by patentadmin on Tue, 04/12/2011 - 22:43

Just as you can’t make a silk purse from a sow’s ear, so too you can’t make a conspiracy or a breach of fiduciary duty out of a simple breach of contract. (Netologic Inc. v. The Goldman Sachs Group, Inc.)

Netologic is a small company in the business of “developing, promoting and selling complex performance analysis and knowledge management systems … to capture, explore, and evaluate research, sales, and trading ideas for the financial community.”

More Hustle[r]!

Submitted by patentadmin on Tue, 04/12/2011 - 22:22

As the conscientious reader of this column is aware, Larry Flynt, of Hustler Magazine fame, recently sued his kid brother Jimmy, alleging infringement of the HUSTLER trademark. (If you are not conscientious, see All You Ever Wanted To Know About HUSTLER – And More.) Well, whatever emotional problems bedevil Larry to cause him to bring his ridiculous lawsuit apparently runs in the family, as evidenced by Jimmy’s latest antics.

If You Don't Ask, You Don't Get

Submitted by patentadmin on Wed, 04/06/2011 - 12:08

We have repeatedly preached against the sin of greed. Well, we now have a case where the plaintiff clearly did not demand enough. (Affinity Labs of Texas, LLC v. BMW North America, LLC et al.)

Affinity is a small – two person – firm which owns two patents directed to “a system and method for connecting and integrating a portable electronic device, such as an MP3 player, with a second electronic device such as a car’s sound system.” It does not practice the patented inventions.

Real Money

Submitted by patentadmin on Wed, 04/06/2011 - 12:02

Just a few days ago we wrote about the success of Lime Wire, the defendant in a copyright infringement action, in reducing its damages exposure from trillions of dollars to merely hundreds of millions (see A Resounding Victory). Well, Lime Wire’s efforts to further reduce that exposure, to only tens of millions of dollars, were not so successful.

A Resounding Victory

Submitted by patentadmin on Mon, 04/04/2011 - 22:52

It is not often that a defendant in a lawsuit deems it a victory that the damages it will be ordered to pay will be measured in the hundreds of millions of dollars and not in the trillions. (Arista Records LLC et al. v. Lime Group LLC et al.)

No Baloney

Submitted by patentadmin on Mon, 04/04/2011 - 22:45

To those of us who are old enough to buy liquor without a fake ID, “spam” means something more than junk e-mail. To us, SPAM® is a spiced, chopped-ham product produced by the venerable Hormel meat packing company. The product is packaged in rectangular cans bearing the word “SPAM” in yellow lettering on a blue background. Appearing below the word “SPAM” is a picture of a sandwich comprised of a slice of the meat product on a sesame seed bun. Hormel claims use of this “trade dress” going back to 1937 and further alleges to have sold over 7 billion cans worldwide.


Submitted by patentadmin on Mon, 03/28/2011 - 21:39

One of the primary purposes of the Court of Appeals for the Federal Circuit (C.A.F.C.) is to ensure consistent claim construction results from the several district courts. Well, good luck on that! (American Piledriving Equipment, Inc. v. Geoquip, Inc. and American Piledriving Equipment, Inc. v. Bay Machinery Corporation)

A Matter of Form

Submitted by patentadmin on Mon, 03/28/2011 - 21:36

Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Seeking to add even more uncertainty to this already vague standard, the Supreme Court has held that, in order to survive a motion to dismiss, the complaint must state “more than labels and conclusions.” Clearly, neither of these statements provides much guidance. So, when should a defendant, in a patent infringement suit, move to dismiss on the grounds that the complaint is deficient?

A Sober Investment

Submitted by patentadmin on Sun, 03/27/2011 - 22:10

Many's the man who spent the night sleeping on the sofa because his wife found a lipstick print on his shirt collar. Well, now we have the case of two liquor companies which find themselves in court because their competitor found lipstick prints on their vodka bottles. (JL Beverage Company LLC v. Fortune Brands Inc. and Jim Beam Brands Co.)

Proper Conduct

Submitted by patentadmin on Fri, 03/25/2011 - 22:28

Suing for infringement, only to have your patent held invalid is bad enough. Being ordered to pay the defendants’ attorneys’ fees makes it worse. (Old Reliable Wholesale, Inc. v. Cornell Corporation)

Goliath Slays David II

Submitted by patentadmin on Fri, 03/25/2011 - 17:06

In legal battles pitting a patentee David against an accused infringer Goliath, there is a tendency to assume that the little guy is virtuously and reasonably enforcing its valid rights against a giant, evil scum-sucker. Well, not always. (TecSec, Inc. v. International Business Machines Corp. et al.)

An Injunction for an N.P.E.

Submitted by patentadmin on Thu, 03/24/2011 - 16:54

Once upon a time, a patentee that prevailed in an infringement suit was awarded a permanent injunction barring the scum-sucking, bottom-feeding defendant from committing further dastardly acts of infringement. Automatic; no questions asked. Then, the Supreme Court, in its infinite wisdom, handed down its eBay decision, under which a patentee which does not practice the patented invention – an N.P.E. or, depending upon your point of view, a Patent Troll – is simply not going to receive an injunction.