Posts tagged as:

patent litigation

A House panel approves a bill aimed at patent demand letters that are in bad faith or based on invalid patents [Reuters]

  • Supreme Court tackling patent law in several cases this term [Sartori and Aga, WLF; Richard Epstein; Kristen Osenga/Prawfs] New fee-shifting regime announced in Octane Fitness already bringing relief to litigants [Ars Technica on Lumen View/FindTheBest case]
  • Copyright claims on intrinsically newsworthy material: curious claim concerning suicide note [Eugene Volokh] “Is it copyright infringement to post a lawyer’s cease-and-desist letter?” Australian university seems to think so [same]
  • Fate of Prenda Law model spirals downward [Ars Technica, Volokh, EFF]
  • Comedian Adam Carolla has “decided to make himself the focus of the Personal Audio suit against podcasters.” [Steven Malanga]
  • Why, as a textbook author, Alex Tabarrok has concluded copyright law is out of control [Marginal Revolution]
  • Remembering when patent examiners were celebrities (in the 19th Century) [Slate]
  • Someone sends Jim Harper a dubious DMCA takedown notice, and this is his response [Cato]

Sen. Harry Reid seems to have been central:

“We felt really good the last couple of days,” said the tech lobbyist. “It was a good deal—one we could live with. Then the trial lawyers and pharma went to Senator Reid late this morning and said that’s it. Enough with the children playing in the playground—go kill it.”…

Trial lawyers are heavy donors to Democratic politicians, including Reid. … The long history of the divide over other kinds of legal tort reform loomed over the bill, which was dubbed the Innovation Act in the House. The fact that it was the trial lawyers’ lobby that reportedly delivered the death blow suggests that the rift only got wider as debate dragged on.

Key Litigation Lobby allies like Sen. Dick Durbin (D-Ill.) and Sen. Sheldon Whitehouse (D-R.I.) spoke out against the legislation on the Senate floor. [Joe Mullin, ArsTechnica]

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  • Federal judge invalidates two patents Intellectual Ventures had used to sue banks [Ars Technica]
  • Is there an actual debate over the economic effects of stronger vs. weaker IP protection, or are people talking past each other? [Simon Lester, Cato]
  • “Teller Wins Lawsuit Over Copied Magic Trick Performance” [Hollywood Reporter] Custom, informal law enforce joke “property” among comedians [McGraw/Warner, Slate]
  • I read the news today, oh boy/ And now I have to pay a license fee/ [ABA Journal on actions against song lyrics sites; earlier here and here; h/t for joke to Rogers T.]
  • “Paper” town, placed by cartographer on map to foil plagiarism, springs into real life [Now I Know]
  • Unsuccessful courtroom demand for access to list of donors to “Save Podcasting Campaign” [EFF]
  • Idea of giving people copyright in their faces (as against facial-recognition systems) “has two demerits: it is unconstitutional, and it is insane. Otherwise, it seems fine.” [Info/Law via @petewarden]

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  • “The patent had an interesting enforcement clause: that anyone who copied [ship designer] Brunelleschi’s work would have their own designs set on fire” [Jeremy Kolassa, R Street]
  • British government investigates problem of orphan copyright works [U.K. Intellectual Property Office, earlier]
  • Hookah’s design not copyrightable, per Ninth Circuit, O’Scannlain, Garber, Bea [Inhale v. Starbuzz Tobacco]
  • From EFF’s “Copyright Week”: what if the penalty that accompanied a parking ticket varied unknowably and might amount to a year’s salary? [Mitch Stoltz] “Copyright’s not getting its work done” [Cathy Gellis]
  • Nineteenth Century’s sewing machine patent wars resembled today’s smartphone wars, but ended more or less happily [Adam Mossoff, Slate]
  • Universities that post papers by their own scholars hear from Elsevier’s lawyers [ABA Journal]
  • Likelihood of confusion? Underwear maker Hanes cease/desists hummus maker in Saskatoon, Canada with name derived from “Yohannes” (= “John”)[ABC News, Craig Lederhouse, CBC (auto-plays radio)]

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Mike Masnick on a jury verdict against Newegg: “Having Whit Diffie (who invented public key cryptography) and Ron Rivest (who basically made it practical in real life) present on your behalf, showing that they did everything prior to Jones’ patent, while further showing that what Newegg was doing relied on their work, not Jones’, should have ended the case. But…” [TechDirt; Joe Mullin, Ars Technica]

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Prevailing parties in patent suits can win attorneys’ fees from losing opponents in cases deemed “exceptional.” “Under the test used to identify exceptional cases, cases must be objectively baseless and brought in bad faith.” That is already a painfully narrow exception, allowing for large volumes of poorly founded litigation, but two cases before the Supreme Court this term may provide clarity on when courts can deem cases “exceptional” and suitable for a fee shift. Broader use of fee shifts — presumably by way of deeming at least some swath of losing cases “exceptional” — would be one way of addressing the patent troll problem that would not call for new legislation. [ABA Journal, related, Corporate Counsel (arguments that judiciary can deal with trolls on its own]

In other developments, the Federal Trade Commission has voted to proceed with an inquiry into the patent troll problem [New York Times] and the Government Accountability Office has released a long-awaited report on the issue [Mike Hogan and Gregory Hillyer, Legal Intelligencer]

Intellectual property roundup

by Walter Olson on September 18, 2013

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“I’m sure you realize the asymmetry in the financial resources of our respective companies when you say: ‘We will both just end up paying a lot of lawyers a lot of money.’” [TheVerge.com]

November 13 roundup

by Walter Olson on November 13, 2012

  • New law grads and others, come work for liberty at the Cato Institute’s legal associate program [Ilya Shapiro]
  • Lawsuit against United Nations seeks compensation for mass cholera outbreak in Haiti [Kristen Boon, Opinio Juris]
  • “Parents Sue Energy Drink After Girl’s Death” [NBC Washington; Hagerstown, Md.] “The New York Times Reveals That 18 Servings of an Energy Drink Might Be Excessive” [Jacob Sullum]
  • Claim: There is no explosion of patent litigation [Adam Mossoff, Truth on the Market, and further]
  • “After Inmates Sue for Dental Floss, Jailers Explain the Security Risk” [ABA Journal, earlier]
  • Court: First Amendment protects right of “The Bachelor” producers to consider contestants’ race [Volokh, earlier]
  • From Florida tobacco litigation to an, um, interesting higher-education startup [Inside Higher Ed, h/t Overlawyered commenter Jeff H.]

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  • “The patent, used as a sword” [NY Times, Flowing Data]
  • Default judgment over 528 songs against contumacious defendant: “Website ordered to pay $6.6 million for posting song lyrics” [NLJ]
  • “Monsanto Seed Patent Case Gets U.S. Supreme Court Review” [Bloomberg Business Week]
  • New book tells story of Ira Arnstein, whose frivolous suits against Cole Porter, Irving Berlin et al set important precedent [WSJ]
  • “Do it ‘on the Internet,’ get a patent, sue an industry — it still works” [Joe Mullin, Ars Technica]
  • “Court rules book scanning is fair use, suggesting Google Books victory” [Timothy Lee, ArsTechnica]

June 11 roundup

by Walter Olson on June 11, 2012

  • Nortel portfolio now used for offense: “How Apple and Microsoft Armed 4,000 Patent Warheads” [Wired]
  • Via Bill Childs: “This shows up in Google News despite fact that it’s lawyer advertising.” [TheDenverChannel.com] At “public interest watchdog” FairWarning.org, who contributed this article about Canadian asbestos controversies? Byline credits a law firm;
  • Another Bloomberg crackdown in NYC: gender-differential pricing in haircuts and other services [Mark Perry]
  • A “Pro-Business Regulation Push” from Obama White House? Oh, Bloomberg Business Week, sometimes you can be so droll [Future of Capitalism]
  • “Trial Lawyers’ Support of Republican Candidates Yields Less Than Stellar Results” [Morgan Smith, NY Times; Examiner editorial; more from TLRPac on Texas election results]
  • “Community banks to Congress: you’re crushing us” [Kevin Funnell]
  • If an emergency injunction could stop one reality-TV show, why couldn’t it stop them all? [Hollywood Reporter]

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Competition through patent suits, circa 1857: I’ve got a new post at Cato on how loser-pays works to improve the general fairness of an inevitably imperfect litigation system.

March 2 roundup

by Walter Olson on March 2, 2012

  • Transportation Secretary Ray LaHood, who crusades against distracted driving, worsens the problem by honking at motorists he sees using phones [WTOP via Mike Riggs, Reason] Expensive new mandate for back-up cameras in cars may be delayed until after election [Ira Stoll and more, Ann Althouse]
  • With reporter Lee Stranahan, the late Andrew Breitbart shone an investigative spotlight on the USDA’s billion-dollar settlement with lawyers representing black farmers, and there was indeed much to investigate [Big Government]
  • Substance on floor may have been own baby oil: “Oiled Stripper Loses Slip and Fall Lawsuit” [Erik Magraken; B.C., Canada; related on-the-job pole-dance injuries here and here]
  • Honeywell’s new thermostat design deserves high marks, its patent litigation maybe not so much [Farhad Manjoo, Slate]
  • Socialism takes too many evenings: @ChadwickMatlin live-tweets Park Slope Food Co-op meeting [The Awl]
  • Auto bailout a success? Really? [Mickey Kaus, Todd Zywicki, Ted Frank, Prof. Bainbridge]
  • Way to go Maryland: proud of my state for enacting law recognizing same-sex marriage, signed by Gov. O’Malley yesterday [WaPo]

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February 24 roundup

by Walter Olson on February 24, 2012

  • Melissa Kite, columnist with Britain’s Spectator, writes about her low-speed car crash and its aftermath [first, second, third, fourth]
  • NYT’s Nocera lauds Keystone pipeline, gets called “global warming denier” [NYTimes] More about foundations’ campaign to throttle Alberta tar sands [Coyote] Regulations mandating insurance “disclosures” provide another way for climate change activists to stir the pot [Insurance and Technology]
  • “Cop spends weeks to trick an 18-year-old into possession and sale of a gram of pot” [Frauenfelder, BB]
  • Federal Circuit model order, pilot program could show way to rein in patent e-discovery [Inside Counsel, Corporate Counsel] December Congressional hearing on discovery costs [Lawyers for Civil Justice]
  • Trial lawyer group working with Senate campaigns in North Dakota, Nevada, Wisconsin, Hawaii [Rob Port via LNL] President of Houston Trial Lawyers Association makes U.S. Senate bid [Chron]
  • Panel selection: “Jury strikes matter” [Ron Miller, Maryland Injury]
  • Law-world summaries/Seventeen syllables long/@legal_haiku (& for a similar treatment of high court cases, check out @SupremeHaiku)

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December 13 roundup

by Walter Olson on December 13, 2011

  • “The real cost of patent trolls” [Brad Feld, PoL on BU study] Survey finds patent litigation booming [Corporate Counsel, Reynolds Holding/Reuters] Company claiming patent on wi-fi-in-stores unlikely to sue retail customers “at this stage” [Patent Examiner] Retrospective on crustless-sandwich case [Peter Smith/Good, earlier]
  • Louisiana federal court holds severe obesity to be disability under ADA [Sam Bagenstos, related]
  • Florida: many cops remain on job despite evidence linking them to crimes [Balko on Sarasota Herald-Tribune investigation]
  • “FDA Regulation Could Doom Cigar Shops” [Jacob Sullum]
  • Ted Frank vs. Brian Fitzpatrick on class action fees [PoL, David Lat on Federalist Society panel]
  • Orange County keeps mum about partnerships it’s entered with plaintiff’s attorneys Robinson, Calcagnie and Thomas Girardi [Kim Stone, Fox & Hounds] Maybe like “private attorney generals”? Fannie/Freddie genre of government-sponsored enterprises called “monstrous moral hybrids” [Mark Calabria, Cato]

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A pretty graphic depicting a not-so-pretty situation [Design Language News; more, FlowingData] Related: “When Patents Attack,” NPR; Will Wilkinson, “Patents Against Prosperity”, The Economist; “Good Defensive Patents Are Bad Patents,” Julian Sanchez.

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December 4 roundup

by Walter Olson on December 4, 2010

  • Will they get group discounts on lawyers? Groupon vs. MobGob patent brawl [TechCrunch]
  • Why American courts should sometimes recognize Islamic law [series of Eugene Volokh posts]
  • No, it’s not a “public health issue”: “The Case Against Motorcycle Helmet Laws” [Steve Chapman, syndicated/RCP]
  • Failed system of justice on some Indian reservations [McClelland, Mother Jones]
  • Ten years ago: Morgan Lewis & Bockius handed mlb.com domain over to its client Major League Baseball [Ross Davies, SSRN]
  • City of Boston adds insult to injury after employee runs into building [TJIC, Popehat]
  • Citing fans’ drug use, feds seek forfeiture of farm used for Grateful Dead tribute concerts [Greenfield]
  • Johann Sebastian Bach, serial copyright violator [Cavanaugh, Reason]