In keeping with the current liberal – if not socialist – swing of the pendulum, two professors have published a paper, in the Columbia Science and Technology Law Review, that argues that the present U.S. patent system may not encourage innovation or promote societal wealth and, hence, may be unconstitutional. ("Patents And The Regress Of Useful Arts")
A few weeks ago, we wrote about the growing trend of clients suing their lawyers or former lawyers (What Were They Thinking?). Our blog post focused on the defenses raised by the defendants, Greenberg Traurig LLP et al., namely, that the claims raised by the client were barred by the statute of limitations.
We have just come across another one of those cases which cry out to be the subject of a blog or perhaps a TV sitcom, involving as it does Bimbo Bakeries and the secret of the special “nooks and crannies.” (Bimbo Bakeries USA v. Botticella)
Just as the affronted gunfighter of yore offered his foe the choice to “get out of town” (said with a snarl) or “meet me in the street at high noon,” so the modern, white-hatted patent owner often seeks to offer a choice to a black-hatted, scum sucking infringer, contacting the swine and offering a license before initiating suit for patent infringement. Since the Medimmune decision, it has required great care to achieve this without conferring upon the infringer standing to bring a declaratory judgment action. It was difficult, but it could be done.
Every now and then, justice prevails and an infringer (scum sucker) is found guilty of infringement. Unfortunately, it seems that even in those cases where the patentee wins, the fruits of victory are being either snatched away or diminished. (Electro-Mechanical Industries, Inc. v. Universal Support Systems LLC)
Some time ago, we wrote about the fascinating case of Shepard Fairey and the “Obama Hope” image (see Goliath Slays David). This is one of our most interesting blog entries, and we recommend it to any of our readers who might have somehow inadvertently missed it. Nevertheless, suffice it to say that Mr. Fairey sued The Associated Press, seeking a declaratory judgment that the said image did not infringe any AP copyright.
If a patentee delays filing suit for an unreasonable and inexcusable length of time from the time he knew or reasonably should have known of his claim against an infringer, and the delay operates to the prejudice or injury of the infringer, the patentee may be barred from recovering any damages which accrued prior to the filing of suit.
Strange as it may seem, many (misguided) people dislike lawyers, deriding their character, disparaging their reputation for honesty and questioning their parentage. Such people are wont to collect and endlessly repeat stories about lawyers’ indiscretions – as if that really proved anything. They point, for example, to Scott W. Rothstein, accused of running a $1.2 billion Ponzi scheme. Picky, picky. Bernie Madoff ran a $50 billion Ponzi scheme and he wasn’t a lawyer.
Some cases simply cry out to be the subject of a blog, but none more so than Pfizer Inc. v. Arye Sachs and JetAngel.com.
Some patentees never give up; they persist in their efforts to enforce their patents against infringers, even to the point of petitioning the Supreme Court to change the existing patent law relating to the determination of patent invalidity due to obviousness. (Acushnet Company v. Callaway Golf Company)
Large businesses, especially those found guilty of patent infringement, malign N.P.E.s – which they call “trolls,” by claiming that the N.P.E.s are asserting invalid or trivial patents and are, thereby, perverting the patent system. Well, we now have a scholarly study, conducted by independent researchers, which refutes this rant. (Patent Trolls on Markets for Technology – An Empirical Analysis of Trolls’ Patent Acquisitions by Timo Fischer and Joachim Henkel of the Technical University of Munich.)
Another chapter of “What Were They Thinking?” was recently written by Acacia Research Corp. (DNT LLC vs. Sprint Nextel Corp. et al.)
Some weeks ago, we wrote about a suit seeking a declaration that patents on genes are unconstitutional and, in particular, violate the plaintiffs’ right of free speech - The ACLU – Fighting The Right To Life – And The Right To Patent It. At that time, the defendants – the USPTO and Myriad Genetics Inc. – had moved to dismiss the case because, inter alia, it allegedly failed to state a legally recognizable claim of any constitutional violation.
It is not often that a defendant in a patent infringement suit is able to win a summary judgment of non-infringement. Usually, the plaintiff is able to defeat a motion for summary judgment by producing a “declaration” (lawyerspeak for “a document ghost-written by lawyers”) of its “technical expert” (lawyerspeak for “degree-holding mouthpiece for the lawyers”) to raise a “substantial question of material fact.” Usually, but not always. (Intellectual Science And Technology, Inc. v. Sony Electronics, Inc. et al.)
A patent owner, suing for infringement of his patent, may find that the defendant has substantial arguments as to non-infringement. However, if there is a pending continuation of the patent-in-suit, the patent owner may be able to overcome such non-infringement defenses by adding new claims to the continuation, which are specifically tailored to the defendant’s products or services.
An earlier blog, The End Of a Rule?, dealt with Microsoft’s appeal of an award of TWO HUNDRED MILLION DOLLARS in damages to i4i in a patent infringement case. As we noted, the appellate judges asked questions and made statements which seemed to indicate that they favored Microsoft’s position. Well, the decision is now in. Microsoft lost!
“Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article, the word ‘patent’ or any word or number importing that the same is patented, for the purpose of deceiving the public … Shall be fined not more than $500 for each such offense.” 35 U.S.C. §292(a)
“… [a]ny person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States.” 35 U.S.C. §292(b)
Much has been written about the decision of the Supreme Court in KSR Int’l. Co. v. Teleflex, Inc. Unfortunately, much of this writing is philosophical blather which only serves to obfuscate the case holding. A recent decision of the C.A.F.C., Perfect Web Technologies, Inc. v. InfoUSA, Inc., however, may provide some much needed clarification.
The famous – or infamous, if you’re an N.P.E. – eBay decision has eliminated the automatic injunction formerly awarded to prevailing patentees. Now, the courts are to apply the “4 part test” traditionally applicable to the award of equitable relief. As a practical matter, the trial court must now decide whether the prevailing patentee will suffer any “irreparable harm” if the scum sucking infringer continues to infringe. All well and good – if you’re not an N.P.E. – but which party bears the burden of proving the “irreparable harm”?
While the world – at least the patent world – awaits the Supreme Court decision in In re Bilski, the trial courts continue to hand down surprisingly consistent decisions based upon the C.A.F.C.’s Bilski decision. Given that everyone now seems to understand the existing decision, it seems a shame that the Supreme Court could – and probably will – upset the apple cart by rendering an entirely new decision which will, at least for a while, confuse everyone.