Posts in District Courts

There have been 220 patents upheld as valid in real courts and also subject to a final written decision in the PTAB. The PTAB only agreed with the real courts on 52 patents, while disagreeing with them on 168 patents. If the U.S. legal system is the gold-standard, that means the PTAB is erroneously invalidating patents 76% of the time… In the PTAB, generally only two grounds of attack are available – 35 U.S.C. §102 for novelty and 35 U.S.C. §103 for non-obviousness. But in the real court four grounds are available as a defense – along with §102, §103, accused infringers are also afforded validity challenges under 35 U.S.C. §101 for basic patentability and 35 U.S.C. §112 for specification. So how is it that the PTAB invalidates three times as many patents with only half as many grounds available? The only answer is because it is specifically designed to help infringers by bypassing due process protections afforded to inventors in real courts. Apologists will go on to argue that the PTAB had better evidence, better prior art, better experts, better judges – nonsense! The real courts have rules and procedures which are tremendously more thorough, developed, proven, and fair. The PTAB has not and cannot measure up.

The key issue in the present appeal, in light of Akamai V, is whether TSA’s performance of the final two steps of the patented method claims can be attributed to Travel Sentry, such that Travel Sentry is responsible for infringing the relevant claims… Under Akamai V, direct infringement under § 271(a) occurs where all steps of a claimed method are performed by a single entity. When more than one actor is involved in practicing the steps, the court considers whether the acts of one entity are attributable to the other such that a single entity is effectively responsible for the infringement. An entity will be held responsible for another’s performance of method steps where it directs or controls that performance. This is a question of fact.

HoloTouch, Inc. filed a lawsuit asserting willful patent infringement claims against Redmond, WA-based tech giant Microsoft Corporation (NASDAQ:MSFT). Filed in the Southern District of New York, the suit alleges that Microsoft has ignored licensing talks with the original inventor of certain holographic interface input technologies which were developed in the mid-1990s even while filing patent applications which cite to patents issued to HoloTouch as prior art.

The suit, filed in the Western District of Texas, alleges that the mega retailer has been infringing on its IP related to trade dress covering aspects of YETI beverage holders in violation of a settlement agreement stemming from previous litigation activity which had played out between the two companies… The allegedly infringing products include 20- and 30-ounce beverage holders and a “Koozie” beverage container which are the same size and shape as the YETI trade dress. These products had previously been the subject of patent and trademark litigation played out between YETI and Wal-Mart

A jury in the Southern District of California entered a special verdict form in a trademark case playing out between a couple of American pop culture conventions. The verdict shows that the jury found in favor of plaintiff San Diego Comic Convention against a group of defendants using the “COMIC-CON” mark to publicize a similar event organized in recent years in Salt Lake City, UT. The verdict also awards $20,000 in corrective advertising damages to San Diego Comic Convention for defendants’ infringement of multiple trademarks held by the San Diego event organization.

In Arctic Cat Inc. v. Bombardier Rec. Prods., after unsuccessfully defending a patent infringement lawsuit, Bombardier Recreational Products, Inc. (“BRP”) appealed the district court’s denial of its motion for judgment as a matter of law. BRP argued that the asserted claims of U.S. Patent Nos. 6,568,969 (“the ‘969 patent”) and 6,793,545 (“the ‘545 patent”) were obvious, that patentee Arctic Cat failed to mark patented products, that the jury based its royalty award on improper expert testimony, and that BRP did not willfully infringe the asserted claims. BRP also appealed the district court’s award of treble damages and the ongoing royalty to Artic Cat… While the burden of persuasion under the statute is always on the patentee… the alleged infringer who challenges the patentee’s compliance with the marking statute has the initial burden of production because placing the burden on the patentee “could lead to a large-scale fishing expedition.”

In Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., the Federal Circuit affirmed an award of attorneys’ fees in the lower court because “following the Alice decision, IH’s claims were objectively without merit.”  Alice issued two months after the filing of suit.

On December 1st, Niwot, CO-based shoe manufacturer Crocs, Inc. (NASDAQ:CROX) filed a motion for sanctions against Las Vegas, NV-based rival firm USA Dawgs Inc., which outlined a series of harassing legal moves in which Dawgs has engaged in recent years. Crocs is asking the District of Nevada to award Crocs costs and attorneys’ fees incurred by a lawsuit which Crocs alleges that Dawgs has pursued in bad faith.

In late November, the legal dispute between San Diego, CA-based semiconductor developer Qualcomm Inc. (NASDAQ:QCOM) and Cupertino, CA-based consumer tech giant Apple Inc. (NASDAQ:AAPL) over patents covering various electronic device components and features. A series of actions taking place in the Southern District of California shifts the focus of what has been an international squabble over patent infringement and antitrust claims back to American soil.

On November 21st, a jury verdict entered in the Eastern District of Texas awarded $12.3 million in damages to Tinnus Enterprises and ZURU Ltd. in a patent infringement case against major U.S. telemarketing firms Telebrands and its subsidiary Bulbhead.com. The verdict, which also carries a finding of willful infringement of the patents-in-suit, further upheld the validity of patents owned by Tinnus in stark contrast to findings which have issued by the Patent Trial and Appeal Board (PTAB) on those patents.

A jury verdict recently entered in a patent infringement case in the Eastern District of Texas held that plaintiff Packet Intelligence, a patent owning entity headquartered in Marshall, TX, did not prove infringement of claims from three patents asserted against Canadian communications service solutions provider Sandvine Corporation (TSE:SVC). The jury verdict comes less than one month after Packet Intelligence won a jury verdict of infringement on the same asserted patents in a different Eastern Texas case filed against Westford, MA-based application and network performance management firm NetScout Systems (NASDAQ:NTCT).

Looking at the types of damages being awarded in trademark cases and how they’re being awarded, it’s highly likely that most damages awarded in these cases might never be recovered. “You can see it as two separate worlds of trademark cases,” Howard said. “There are cases in which a defendant doesn’t show up and it goes straight to default judgment, and then there’s everything else.” $4.6 billion dollars, or 84.6 percent of all damages awarded in district court trademark cases going back to 2009, have been awarded on default judgment.

On November 28 the parties requested an extension of the temporary stay, explaining: “The parties are still actively engaged in settlement discussions but require additional time to potentially resolve this matter.” A date of December 18, 2017, was jointly proposed for either the filing of a stipulated dismissal or joint status report. The District Court granted this extension on November 29, 2017… These requests for temporary stay follow a jury verdict issued in the case on August 3rd, which awarded reasonable royalties to both Philips and ZOLL for infringement of patents asserted by both parties in the case. That verdict awarded Philips a total of $10.4 million for infringement of three patents, while ZOLL was awarded a reasonable royalty of $3.3 million for two patents it asserted in the case.

On November 20th, both Peter Gene Hernandez, the American singer-songwriter-producer who goes by the professional name Bruno Mars, and New York City-based Warner Music Inc. were named as defendants in a copyright case filed in the Southern District of New York by Burbank, CA-based photographer Catherine McGann. The lawsuit targets Mars’ social media use of a photograph of himself taken by McGann when Mars was performing as an Elvis impersonator as a child.

In Promega Corporation v. Life Technologies Corporation, on remand from the Supreme Court, the Federal Circuit affirmed district court rulings that granted Life Technologies’ motion for judgment as a matter of law (“JMOL”) that Promega Corp. had failed to prove its infringement case under 35 U.S.C. § 271(a) and § 271(f)(1), and subsequently denied Promega’s motion for a new trial.