Posts Tagged: "district of delaware"

On Tuesday, January 17th, children’s toy maker Fisher-Price Inc. of East Aurora, NY, filed a patent infringement suit against bicycle distributor Dynacraft BSC, Inc. of American Canyon, CA. At issue in the case is a series of patents covering electronic speed control technologies used in battery-powered ride-on products marketed by Dynacraft. The patent infringement suit has been filed in the U.S. District Court for the District of Delaware (D. Del.).

On January 5, 2017, the District of Delaware issued its long-awaited decision in the patent dispute pending between Amgen and Regeneron wherein the Court granted Amgen’s request for a permanent injunction against Regeneron’s new PCSK9-inhibitor cholesterol drug. Both Amgen and Regeneron each independently spent billions of dollars over the past decade-plus developing a new class of cholesterol drug. The drug itself comprises an antibody that binds to PCSK9 proteins… Whereas Regeneron managed to be the first to market, Amgen succeeded in getting to the Patent Office first. Amgen originally sued Regeneron, along with Sanofi, its European partner, in October 2014. Amgen asserted three patents directed to antibodies that bind to PCSK9. Over the next month, Amgen commenced additional lawsuits as new patents issued from the Patent Office. The cases were eventually consolidated, but Amgen eventually went to trial against Regeneron on only two of the originally asserted patents.

On Thursday, December 15th, a subsidiary of Kenilworth, NJ-based pharmaceutical developer Merck & Co. (NYSE:MRK) was awarded $2.54 in royalty damages in a case involving one of the most popular available treatments for combating the hepatitis C virus (HCV). A federal jury decided that Gilead Sciences Inc. (NASDAQ:GILD), an American biotech firm headquartered in Foster City, CA, owed these royalties as a result of its infringement of patents for HCV treatments held by Merck’s Cambridge, MA-based subsidiary Idenix Pharmaceuticals. According to coverage of the verdict by Bloomberg, this $2.54 billion royalties award is the largest verdict for patent infringement in the history of the United States. The case was decided by jury in the U.S. District Court for the District of Delaware (D. Del.).

The report indicates that IP litigation in U.S. district courts is declining across the board. During 2016’s third quarter, U.S. district courts received a total of 1,127 new patent infringement suits. This was greater than the 960 patent infringement cases filed in the first quarter of this year but it was also the third smallest docket in a single quarter going back to the fourth quarter of 2011, before the terms of the America Invents Act (AIA) of 2011 went into effect. The third quarter of 2015 saw 1,114 patent litigation filed in U.S. courts, so three of the lowest quarters in terms of patent infringement filings since the AIA have come over the past 15 months.

Nome, Alaska and San Juan, Puerto Rico are both home to a federal courthouse where, ostensibly, under the recent Acorda Therapeutics holding and subsequent court decisions, a generic pharmaceutical company will be subject to personal jurisdiction if they file an Abbreviated New Drug Application (ANDA) with the Food and Drug Administration (FDA). In Acorda Therapeutics, Inc. v. Mylan Pharmaceuticals, Inc., 817 F.3d 755 (Fed. Cir. 2016), the Federal Circuit held that an ANDA filer opens themselves up to nationwide personal jurisdiction merely by virtue of filing an ANDA application. This is a broad holding that, in effect, subjects a generic company to personal jurisdiction in any forum that has a district court.

It was only going to be a matter of time before Director Lee declaring a federal holiday without any statutory authority came back to haunt the USPTO. Here the defendants were served with the complaint on December 24, 2014, which means any IPR had to be filed on or before Thursday, December 24, 2015. The defendants filed their IPR petitions on Monday, December 28, 2015. The patent owner argues in a recently filed federal complaint that the IPR petitions would be considered untimely but for Director Lee declaring December 22-24, 2015, federal holidays due to the catastrophic failure of the USPTO’s electronic filing systems.

2015 is the second straight year in which the list of top plaintiffs has been led by eDekka LLC, a patent holding company, which at times has been accused of exhibiting trolling behaviors… Atop this list was the U.S. District Court for the Northern District of California (N.D. Cal.), which between 2005 and 2015 has awarded more than $2.1 billion in compensatory damages over the course of 2,169 cases filed. Following behind them was the U.S. District for the Southern District of California (S.D. Cal.), U.S. District Court for the Southern District of New York (S.D.N.Y.), and followed in fourth place by E.D. Tex. Median damages for cases terminating between 2000 and 2015 showed a different story, however, as that list was topped by the District of Delaware, which had a median award of $10.46 million in 40 cases with damages. The Eastern District of Texas follows in second with a $7.68 million median damages award and in third is the U.S. District Court for the Eastern District of Virginia (E.D. Va.), with a median award of $2.98 million. After that, there’s a steep drop and every other district is showing a median damages award of less than $1 million.

Twenty-five years ago, the Federal Circuit decided a case that transformed where (and how) patent infringement cases can be litigated.[1] By expanding the scope of where a corporate defendant “resides” for venue purposes, the court in VE Holding Corp. v. Johnson Gas Appliance greatly increased the number of states and courts in which many corporations can be sued for infringement. This decision has contributed to the development of forum-shopping and related litigation issues over the past several years. One company, TC Heartland, LLC, is now urging the Federal Circuit to overturn that precedent and restore more stringent venue restrictions through a writ of mandamus, and dozens of others are joining the debate.

2015 saw the second-most patent infringement cases brought to court, according to Lex Machina’s data. A total of 5,830 patent cases were filed, a 15 percent increase over the 5,070 patent cases which were filed during 2014. 2015 still trailed behind 2013 in terms of patent infringement cases; that year set the high-water mark for patent infringement cases with 6,114 cases filed in that year.

Intellectual Ventures unleashed three separate patent infringement litigations in the U.S. District Court of Delaware against companies in the software security; dynamic random access memory (DRAM) and Flash memory; and field-programmable gate array (FPGA) industries. While I do not begrudge any patent owner their day in court to seek redress for infringement, we really should at least notice the obvious hypocrisy of Intellectual Ventures, who for years said they were only amassing a defensive portfolio and had no interest in becoming what we all knew they could become; namely that most massive patent troll on the planet.