Some time ago, Smith & Nephew, Inc. sued Arthrex, Inc., claiming it had infringed a patent related to suture anchors for repairing damaged tissue. The jury found for the plaintiff and awarded $15M in damages. The trial court then granted the plaintiff a permanent injunction. Arthrex, as losing defendants are wont to do, appealed. Earlier this month, the C.A.F.C. handed down its decision. (Smith & Nephew Inc. et al. v. Arthrex Inc.)
While we generally are on the side of the “little guy,” when such is engaged in legal combat with a corporate colossus, there are limits which, when exceeded, compel us to root for the “big guy.” One such case is Starbucks Corporation v. Wolfe’s Borough Coffee, Inc.
Several recent blogs have dealt with cases of clients suing their former counsel. Now, we have a case of a federal judge suing government lawyers, alleging that his Fifth Amendment rights have been violated. Porteous v. Baron et al. (For those readers who don’t watch LAW & ORDER on television, the Fifth Amendment to the U.S. Constitution established the right against self-incrimination.)
Nearly five years ago, NTP successfully asserted five patents against Research in Motion (RIM), winning a judgment of $53.7M and the award of a permanent injunction. The district court stayed enforcement of the injunction, pending an appeal to the Court Of Appeals For The Federal Circuit. The C.A.F.C. upheld many of the district court findings, but remanded the case to reconsider some of the claim construction issues. Before the lower court could revisit these issues, the parties settled the case.
Among the types of prior art which may be considered by a patent examiner during examination of a patent application is “printed publications.” Fine, so what, exactly, is a “printed publication?”
In order to qualify as a printed publication, a reference “must have been sufficiently accessible to the public interested in the art.” It is “sufficiently accessible” if it was “disseminated or otherwise made available to the extent that persons interested and ordinarily skilled in the subject matter or art, exercising reasonable diligence, can locate it.”
The past year has seen a growing trend towards clients suing their attorneys (actually, their former attorneys) for legal malpractice. While many of these suits may be well-founded, it would appear that one, at least, is not. (Leviton Manufacturing Co., Inc. v. Greenberg Traurig LLP et al.)
A few weeks ago, we wrote about a case where a jury found in favor of the plaintiff in a patent infringement suit and, on the very next day, the USPTO decided that the defendant was actually the first to invent the subject matter of the patents and, therefore, the rights to the patents belonged not to the plaintiff, but to the defendant.
A patent owner whose patent is being infringed by the importation of infringing goods into this country may be able to sue the importer (scum sucker) in the International Trade Commission (I.T.C.). While the I.T.C. cannot award damages to a prevailing patent owner, it will (except in rare cases) issue an “exclusionary order” barring the further importation of infringing goods. Such an order is, in effect, quite similar to a permanent injunction.
Oh, how the mighty have fallen. Once, the Ford Motor Company was one of the richest and most powerful commercial enterprises in the world. Now, attorneys argue, in court, that it may be unable to pay the damages awarded by a jury which found Ford guilty of patent infringement. (Jacob Krippelz, Sr. v. Ford Motor Company.)
A year ago, the jury awarded Krippelz $23 Million in damages for infringement of his patent on a “puddle lamp” which is built into the side view mirrors of certain Ford automobiles.
A successful plaintiff in a patent infringement lawsuit is awarded damages as compensation for the defendant’s past acts of infringement. If the plaintiff is practicing the patented invention, it will – most likely – also be awarded a permanent injunction barring the defendant from committing any further acts of infringement. Whereas the grant of a permanent injunction was formerly automatic, the courts must now – thanks to eBay – apply a “four-factor test” to determine whether an injunction is appropriate.
Three years ago, the Supreme Court ruled, in eBay v. MercExchange LLC, that a prevailing plaintiff, in a patent infringement suit, is not automatically entitled to an award of a permanent injunction against the infringer (scum sucker). Rather, the trial court was to apply the traditional four-factor test.
In September, the Court Of Appeals For The Federal Circuit heard oral arguments in Microsoft’s appeal of a trial court decision awarding i4i hundreds of millions of dollars in damages for patent infringement. Although the appellate decision has not yet been rendered, much of interest may be gleaned from the questions posed by the appellate judges.
Much of the questioning revolved around the fact that the patented invention, a method of editing Extensible Markup Language (XML) files, is only one feature amongst many found in the accused Microsoft Word product.
The reader – especially the reader who voted Democrat in the past presidential election – may be familiar with the so-called “Obama Hope” image which has graced posters, tee shirts, drinking glasses, ash trays, place mats and assorted knick-knacks. The alleged creator of this image, Mr. Shepard Fairey, recently made news as he sued The Associated Press for a declaratory judgment that the said image did not infringe any of their copyrights.
Throughout history – at least recent history – parties accused of patent infringement have shown remarkable ingenuity and creativity in devising and asserting new defenses to the claims made against them. However, we are here to acknowledge a “first” – the first attack on a patent on the grounds that its enforcement would be unconstitutional; specifically, that it would violate First Amendment rights.
Recently, a jury in a patent infringement case found for the plaintiff, deciding that all three patents-in-suit were “valid” (actually, “not invalid”) and infringed. A happy plaintiff, right? Wrong! The very next day, the Patent Office Board of Patent Appeals and Interferences (the B.P.A.I.) ruled that the defendant was actually the first to invent the subject matter of the patents and that rights to these inventions, therefore, belonged not to the plaintiff, but to the defendant.
Sometimes it seems that we have become so inured to wrongdoing that only a transgression of mammoth proportions draws our attention and offends our sense of propriety – Bernie Madoff being a prime example. Well, a team of lawyers now stands accused of improperly withholding forty-six THOUSAND (46,000) documents from discovery. Qualcomm Inc. v. Broadcom Corp. Yes indeed, folks, a new world’s record in discovery misconduct.
Many self-proclaimed “inventors” seem unable to fully comprehend the distinction between a “concept” and an “invention.” This failure is most commonly seen in patent applications – often filed pro se – directed to computer-implemented processes. The patent application for such an invention typically recites one or more system components without actually disclosing a corresponding algorithm.
In yet another in the recent spate of clients suing their (former) lawyers, a new wrinkle has emerged – the Court has ordered the plaintiff to produce certain documents pertaining to communications with their subsequently retained counsel. (Landmark Screens, LLC v. Morgan, Lewis & Bockius LLP and Thomas D. Kohler) Yes, indeed, the Court ordered the production of privileged documents.
For obvious reasons, the overwhelming majority of attorneys are polite in their communications with judges. A few are downright obsequious. We now find one attorney who is bucking the tide.
In a document entitled, “Plaintiff’s Counsel’s Motion For A Honest And Honorable Court System,” filed in the Federal District Court For The District Of Arizona, the plaintiff, Tajudeen O. Oladiran, an attorney acting pro se and professing to rely on “the law of, what goes around comes around,” called the judge “a brainless coward.”
“Polling the jury” is a procedure which, if it occurs, takes place after a jury has rendered its verdict. An attorney for one of the parties may inquire of each of the jurors, in turn, whether they personally agree with the panel verdict. Occasionally, wilting under the steely-eyed glare of an indignant lawyer, a juror will recant, resulting in the jury being ordered back for further deliberations, or possibly a mistrial.