Existential threshold
The number of companies that can bring treble-damages claims against drug manufacturers for violating federal antitrust law has dwindled. The scarcity has grown so acute that last week it crossed an existential threshold.
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Location
The place of suit matters a lot in civil cases. Suing at home helps the plaintiff — by keeping her costs low, giving her comfort that local judges and juries will give her fair treatment, and throwing out-of-town defendants off balance. All of that bigly boosts the plaintiff’s chances of success.
But a trio of recent U.S. Supreme Court rulings promise to make plaintiffs’ home fields more like patches of weeds than acres of sweet verdance.
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In the last quarter-century and more, no current member of the Supreme Court tried a lawsuit of any kind to a judge or jury. Almost none of the justices has ever tried a civil case to verdict. And before their honors became appellate judges, only one of their number served as a full-time trial judge.
Does the justices’ nearly total lack of trial-lawyer chops matter? Has the almost utter absence of actual trial experience in fact degraded the quality of civil justice? And will confirming the nomination of a former trial lawyer like Neil Gorsuch make a difference?
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Extraordinary protection
Since 2007, wanton patent infringers have enjoyed extraordinary legal protection from awards of “enhanced” damages under section 284 of the Patent Act.
Last week, the Supreme Court stripped away three of the protections. The changes will make good patent cases better. But it won’t convert weak ones into strong ones.
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On May 11, 2016, the Defend Trade Secrets Act of 2016 took effect. The effect of its effectiveness? Almost all new trade secrets cases will either start in federal court, or they will wind up there once the defendant removes it from state court. Key parts of the new law include these:
Cause of action.
In Henry IV, Glenmore brags that he can “call spirits from the vasty deep.” Hotspur replies:
Why, so can I, or so can any man;
But will they come when you do call for them?
In Blue Calypso, LLC v. Groupon Inc., No. 15-1396 (Fed. Cir. Mar. 1, 2016), Groupon tried to summon a prior art reference from the Internet. But it wouldn’t come. The Internet proved too vasty.
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How will lower federal courts react to the loss of a 5-4 pro-business majority on the U.S. Supreme Court?
Risky business
Patent infringement cases involve an immense amount of risk. Why?
Answers by people who know — especially plaintiffs-side attorneys who work on a contingent-fee basis — will cluster around three facts of life in patent disputes:
This post deals with the hazards awaiting you behind door number three.
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Finding your patents
Since 1990, 4,008,329 utility patents have won U.S. Patent and Trademark Office approval. In 2014 alone, the USPTO granted more than 300,000 of them. And those awards went to a wide range of patenting entities — 38,000 of them, in fact.
If you do legal work for companies of any size, those clients of yours likely own at least one patent and may have quite a few (several hundred entities received 40 or more patent grants just in 2014). Do you have any idea how many or what inventions they cover?
Don’t worry if you don’t. You can get a list and see a copy of the patents in no time flat.
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Big dollars in business cases
Expenses in big-dollar lawsuits can run into the millions of dollars. An antitrust class action that I’ve handled since 2003, for instance, cost more than $8 million. The law firms representing the class fronted all that money, with no assurance we would ever get any of it back. Why would any sane person do such a thing?
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