To Blawgletter's eye, a complaint that alleges patent infringement bears itself with a certain elegance. Such a pleading often runs but several pages, and in substance it states that the Bad Guy defendant does some thing or things that infringe the Good Person plaintiff's patent. And Form 18 — which appears with its brothers and
infringement
Marking Items with Patent Number, Paying Royalties Support Infringement Claim
By Barry Barnett on
Wilson Sporting Goods put the number of Jack L. Frolow's tennis racket patent on 14 models of its tennis rackets. It also paid Frolow royalties on 299 racket models. Yet the district court granted Wilson summary judgment on the theory that Frolow hadn't put forward any evidence that the rackets infringed his patent.
The Federal…
Suing First Hits a Snag in Federal Circuit
By Barry Barnett on
Blawgletter wrote No More Mr. Nice Patent-Infringer Guy about five years ago. It told about how the Supreme Court and Federal Circuit had lately cleared the way for people to pre-empt a lawsuit for patent infringement by suing for a declaratory judgment first. And just last week we pointed out that someone who avails herself of the pre-emptive…
Plaintiff Seeking Declaratory Judgment Keeps Burden of Proof, Federal Circuit Holds
By Barry Barnett on
Say your dear client fears that a patent holder can hardly wait to sue YDC for infringement. YDC — a lovely outfit with lots of nice people — asks you what to do. You knit your brows, think deep thoughts, draw on the deep well of experience, conduct thought experiments, and come up with a…
Did Apple v. Samsung Jury Go Too Far?
By Barry Barnett on
A law prof at a small school in the Golden State opined that the jury in Apple v. Samsung went Way Too Far when on August 24 it awarded Apple almost $1.05 billion after finding that Samsung copied — very much on purpose — Apple's smartphone designs.
His analysis? That an "average smartphone may arguably…
Federal Circuit Nips Multi-Party Patent Cases
By Barry Barnett on
The Federal Circuit today ruled that the Eastern District of Texas has the wrong idea about whether Rule 20(a) lets plaintiffs sue a bunch of defendants in one patent infringement case simply because they all infringed the same patents.
You have to show something more, it held — such as that the defendants somehow acted…
Settlement Privilege? Ha!
By Barry Barnett on
In the last 30 days, two U.S. courts of appeals have held (sort of) that no "settlement privilege" — a right to deny others access to the terms of your settlements with third-parties — exists.
In the first case, the Federal Circuit ruled, "in light of reason and experience, . . . that settlement negotiations…
New Paper Explores Market for Patent Lawyers Who Try Cases
By Barry Barnett on
Blawgletter's firm handles lots of patent infringement cases on a contingent-fee or hybrid basis. And by hybrid we mean either a fraction of hourly plus a contingent percentage, a flat-fee plus a kicker, or an hourly or flat fee with some case-specific incentive to get exceptional results.
Now we see a scholar who has looked…
Limits of Language, Patent-Wise
By Barry Barnett on
Your patent claims a device that "attach[es]" to a "flexible" thingy.
Does "attach" require that the device touch only the outside of the thingy? Or can it also attach to the thingy's innards? And must the thingy flex "easily" or just enough to seem, well, flexible?
The district court ruled that the attachment element of…
Federal Circuit Upholds $4.6MM Worth of Patent Prosecution Estoppel
By Barry Barnett on
If you wonder what "prosecution history estoppel" in a patent infringement case means, you might check out MarcTec, LLC v. Johnson & Johnson, No. 10-2085 (Fed. Cir. Jan. 3, 2012), in which the court affirmed an award of $4,683,653.03 in fees and expenses to the defendants.
MarcTec alleged infringement by the "Cypher stent" —…