Posts Tagged: "patent infringement"

Piercing Halo’s Haze at Year Five: Smoke Clearing on Enhanced Damages

On June 13, 2016, the Supreme Court decided Halo Elecs., Inc. v. Pulse Elecs., Inc., addressing standards for recovery of enhanced damages for patent infringement pursuant to Section 284 of the Patent Act, under which a “court may increase the damages up to three times the amount found or assessed.” In Halo, the Supreme Court rejected damages-related requirements imposed by In re Seagate Tech., LLC, a 2007 decision from the U.S. Court of Appeals for the Federal Circuit. With patentee litigants freed from what the Supreme Court called Seagate’s “inelastic constraints” in favor of a totality-of-circumstances approach, a consensus developed that Halo would facilitate recovery of enhanced damages. Statistics suggest alignment with that view.

Patent Procurement and Strategy for Business Success: Building and Strategically Using Patents that Target the Right Infringers and Thwart Competitive Countermeasures

Successful patent strategies for business are inexorably tied to the quality of the patents upon which the patent strategies depend. The quality of a patent depends upon the capacity of a patent prosecutor to resolve a series of non-trivial patent application drafting and/or examination challenges in order to secure the issuance of a valid patent that includes claims that provide a desired scope of protection. Such challenges can involve subjecting complex and/or unwieldy subject matter to patent form in a manner that yields an accurate, clear and complete detailed description of the invention and well-crafted claims. Moreover, they can involve managing difficult patent examiners who require the amendment of claims as a prerequisite to advancing the prosecution of the application. The detailed description and the claims are the parts of the patent that can be employed by the practitioner to imbue a patent with attributes that optimize their support of patent strategies for business.

Five Years after Form 18: Post-Iqbal–Twombly Rule 12(b)(6) and 12(c) Motions to Dismiss Patent Infringement Claims

Today, district courts evaluate whether patent infringement complaints satisfy the plausibility standard under Fed. R. Civ. P. 8 and the Supreme Court’s Iqbal–Twombly standard. Five years after abrogation of Form 18 (a sample patent infringement complaint that was said to be plaintiff-friendly) and nearly 15 years after Twombly, jurisdictional analyses have diverged. Fed. R. Civ. P. 12(b)(6) and 12(c) motions have developed into a targeted, widely-used tactic. Both motions provide defendants with a low-risk, high-reward opportunity. As plaintiff or defendant, start by evaluating the possible-to-plausible pleading spectrum.

Transparency in 3G/4G/5G FRAND Licensing and ETSI’s IPR Database

A disturbing trend has recently emerged whereby an alleged lack of transparency associated with the European Telecommunications Standards Institute (ETSI) intellectual property rights database (IPR Database) is being used in support of antitrust allegations and to propose radical changes to the fair, reasonable and non-discriminatory (FRAND) licensing framework for 3G, 4G and 5G wireless technology. But is there really such a transparency problem or is this yet another attempt to tilt balance of power in favor of implementers and excuse hold-out? 

Federal Trade Commission Urges SCOTUS to Deny AbbVie Petition

On Wednesday, May 19, the response brief of the Federal Trade Commission (FTC) was filed with the U.S. Supreme Court in AbbVie v. FTC. The petition for writ of certiorari filed by AbbVie asks the nation’s highest court to decide whether lower courts erred in finding that AbbVie’s Hatch-Waxman district court litigation involving patents covering its AndroGel testosterone treatment met the sham litigation exception to Noerr-Pennington doctrine. The FTC’s brief urged the Supreme Court to deny AbbVie’s petition for writ, a decision that arguably could cast into doubt pharmaceutical firms’ ability to enforce their patent rights under decades-old legislation meant to balance the economic interests of innovative drug developers with the public interests served by generic drug makers.