As we have previously noted (here, for example), whatever else you may want to say about the folks at Microsoft, they certainly are not quitters. Now, their perseverance has raised an issue which is of paramount importance to all patent owners, but which has gone largely unnoticed – until now.
Sometimes it seems that attorneys file motions for summary judgment as a matter of routine, without seriously considering the probability of success. (Bright Response, LLC v. Google Inc., et al.)
From time to time, large corporations get together to discuss topics of mutual interest, such as creative accounting, the creation of worthless securities, sending jobs to low-wage foreign countries, circumventing the anti-trust laws, and defeating righteous claims of patent infringement. It is this last topic that we shall briefly address here.
Of late, there has developed something of a fad of clients suing their attorneys. Typically in cases involving patents, the clients seek to recover the profits they allegedly would have made but for the alleged misconduct of the attorneys. When this occurs, the claimed damages can reach truly impressive levels. (Nomir Medical Technologies Inc. v. McDermott, Will & Emery)
What happens when decisions of the U.S. Supreme Court conflict with the Federal Rules of Civil Procedure (F.R.C.P.)? (Automated Transactions, LLC v. First Niagara Financial Group, Inc. et al.)
Several years ago, there was a flurry of lawsuits, brought by companies accused of patent infringement, against their liability insurance carriers. The accused infringers were seeking a declaration that their commercial general liability (CGL) insurance policies covered their legal fees in defending a patent infringement lawsuit, and any damages if the slimeballs were found guilty.
Sometimes there is simply no substitute for a true “expert.” (Byrne v. Wood, Herron & Evans, LLP et al.)
Mae West famously inquired, “[w]hat’s a gal got to do to get a drink around here?” The response, if any, is not recorded. In a recent case, a New York based company has demanded, “what’s a trademark infringer got to do to be subject to personal jurisdiction here?” To this, the Court of Appeals for the Second Circuit has responded. (Chloe, A Division Of Richemont North America, Inc. et al. v. Queen Bee Of Beverly Hills LLC et al.)
An increasingly common tactic among those accused of patent infringement is to seek re-examination of the subject patent or patents. This may occur even while litigation is proceeding in a district court, leading to the possibility that a jury finds the patent valid and infringed while the Patent Office, shortly thereafter, finds the same patent invalid. What happens then? (Flexiteek Americas, Inc. et al. v. Plasteak, Inc. et al.)
Zorro is not the only one who is concerned about making his mark.
As the reader may (read: should) be aware, a patentee who practices the patented invention is “entitled to damages from the time when it either began marking its products in compliance with 35 USC §287(a) or when it actually notified [the infringer] of its infringement, whichever was earlier … or when, from the character of the article, this cannot be done by fixing to it, or to the package wherein one or more of them is contained, a label containing … [such] notice.”¹
Having departed from our usual genre to write seriously about Bilski, we now return to the humorous, the ridiculous, and the pathetic, and report on a case which would appeal to the Addams Family and the Munsters. (In the Matter of: Certain Caskets)
Every now and then, we take time from our primary function – entertaining our readers – to write about something of legal significance. This is one such instance.
From the "fact is stranger than fiction" department, we report on the bizarre case of a giant Japanese corporation suing a giant Taiwanese corporation in a court in Madison, Wisconsin. (Ricoh Company v. Quanta Computer Corp.)
Ricoh is an electronics manufacturer employing approximately 100,000 people, of whom over 40,000 are in the U.S. It produces, among other things, photocopiers, printers and digital cameras, with annual sales of about $20B.
The courtroom behavior of some people is just unbelievable. They do things you’d only expect to see on television – in a sitcom. (Sky Development, Inc. v. Vista View Development, Inc. et al.)
A few weeks ago, we wrote about a legal battle between bourbon and tequila. Today we are writing about a legal battle between two vodkas. Who says courtroom proceedings are boring and dry? (Zodiac Spirits Inc. et al. v. Moet Hennessy USA Inc. et al.)
Some few days ago, we wrote about Interactive Life Forms LLC, the sex toy manufacturer that filed a complaint with the International Trade Commission (I.T.C.) against more than two dozen companies that it accused of selling imported sex toys which infringe its patents. The I.T.C. voted to launch an investigation into this matter, no doubt to protect the jobs of Interactive’s production workers and product design personnel.
Proving that someone is reading our blog, one reader wrote in to inform us that we had overstated the holding in the below-identified case. We, therefore, reprint this blog post in amended form.
We have repeatedly advised our readers about proper royalty bases for damages calculations. Well, apparently some people are either not reading our blogs or can’t take advice. (LaserDynamics Inc. v. Quanta Computer, Inc. et al.)
Some time ago, we wrote a blog post concerning the travails of one Joel Tenenbaum. For those among our legion of faithful readers who are short of memory, Joel was sued by Sony BMG Music for using file-sharing software to download and share 30 songs in violation of their copyrights. We didn’t say “alleged” because, at trial, he admitted to these dastardly acts.
More than a year has passed since the C.A.F.C. handed down its Exergen decision, holding that inequitable conduct is akin to conventional fraud and, therefore, must be pled in considerable detail. Apparently, not everyone has gotten the message. (ACQIS LLC v. Appro International, Inc. et al.)
In the course of our extensive coverage of the spreading plague of patent false-marking suits, we opined that the courts were likely to focus on “standing” – or the lack thereof – as a means of reining in runaway trolls. Well, we were right. (Shizzle Pop, LLC v. Aviva Sports, Inc. et al. and United States of America, et al. v. WHAM-O, Inc.) (Yes, folks, a TWOFER.)