Gibbons Law Alert

Gibbons Law Alert

Tagged: Patent Infringement

Heightened Pleading in Patent Complaints to Frustrate Trolls – Exception for Hatch-Waxman/ANDA Cases

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Posted in Patent

On March 3, 2015

All branches of government have worked to decrease frivolous litigation by non-practicing entities (“NPEs”), or patent trolls, in order to both encourage developing technology and allow businesses to utilize that technology without a looming threat of disruptive and costly litigation. In the course of our coverage of these efforts, we have seen state and federal legislative bodies, as well as the United States Patent and Trademark Office (“USPTO”), the executive branch, and the courts, suggesting potential solutions. Congress is currently weighing a revamped version of House Judiciary Committee Chairman Bob Goodlatte’s Innovation Act bill, which seeks to reform patent litigation by focusing on pleading standards.

Depending on the Circumstances, Claim Construction May Be Subject to Clear Error Review on Appeal

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Posted in Patent

On February 10, 2015

Traditionally, claim construction, which can be an important phase in patent litigation for setting the metes and bounds of a patent, has been viewed as a pure question of law and subject to de novo review by the Federal Circuit on appeal. This was considered problematic by some because the district court’s findings on claim construction, which the parties had been relying on throughout the litigation, were not given any deference on appeal.

Heartburn Relief: AstraZeneca Wins Nexium Antitrust Trial

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Posted in Patent

On December 17, 2014

On December 5, 2014, an 11-person jury decided in favor of defendants AstraZeneca PLC and Ranbaxy Laboratories, Inc. in the first pay-for-delay class action trial since the United States Supreme Court in FTC v. Actavis, Inc. opened the door on antitrust suits based on patent settlements. Teva Pharmaceutical Industries, Ltd. was also defending the suit before reaching a settlement shortly before the trial ended. United States District Court Judge William Young of the District of Massachusetts last year permitted certification for the class members, including union health plans and insurance companies, based on an alleged injury of supracompetitive prices for AstraZeneca’s brand name heartburn drug, Nexium®.

Lacking A Certain Je Ne Sais Quoi – Federal Circuit Finally Holds Ultramercial’s Patent Does Not Cover Patent Eligible Material

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Posted in Patent

On December 4, 2014

On November 12, 2014, the United States Court of Appeals for the Federal Circuit held that Ultramercial, LLC’s patent covering an eleven step process of watching a commercial as a condition of accessing free media content is invalid as covering patent ineligible material. The patent at issue, U.S. Patent No. 7,346,545 (“the ’545 patent”), claimed a method for distributing copyrighted products (such as songs, movies, books) over the Internet where the consumer receives a copyrighted product for free in exchange for viewing an advertisement, and the advertiser pays for the copyrighted content. The Federal Circuit had held the ’545 patent claimed patent eligible subject matter twice before and both times was reversed by the United States Supreme Court. This iteration saw the Federal Circuit uphold the grant of a motion to dismiss claims of infringement by the United States District Court for the Central District of California on the basis of patent-ineligibility.

Attorneys’ Fees, Costs, and an Enhancement! Oh My!

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Posted in Patent

On November 21, 2014

We have previously posted on the judiciary’s attempts to address frivolous and unwarranted suits brought by patent holding, non-practicing entities (“NPEs”). To deter such litigation, courts have the power to award attorneys’ fees and costs to defendants subject to such baseless suits. In an October 23 Opinion and Order in Lumen View Tech., LLC v. Findthebest.com, Inc., District Judge Denise Cote, applying 35 U.S.C. § 285 (“Section 285”), not only awarded the defendant its attorneys’ fees and costs, but also applied an enhancement to the awarded fees.

Recent Case Reveals Effective Strategy for Responding to NPE Suits

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Posted in Patent

On November 10, 2014

A recent decision from the United States District Court of the District of Hawaii reveals an effective strategy for responding to non-practicing entity (NPE) suits and obtaining leverage early on in the litigation. This strategy takes into account the business model of some NPEs to name many (unconnected) industry players in one lawsuit and plead only bare allegations of patent infringement.

The Honorable Grace K. Obermann to Present at NJIPLA’s ETS Seminar on November 6, 2014

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Posted in Licensing / Patent / USPTO

On November 3, 2014

On Thursday, November 6, 2014, The Honorable Grace K. Obermann, Lead Administrative Patent Judge, USPTO, PTAB, will present on practicing before the PTAB at the New Jersey Intellectual Property Law Association’s seminar, “Electronics, Telecom & Software Patent Practice Update.” The seminar will also address topics such as licensing guidance, implications of recent Supreme Court decisions, and damages considerations.

Because I Said So: Courts’ Inherent Powers to Impose Fees for Bad Faith, Vexatious, or Wanton Litigation

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Posted in Patent

On October 8, 2014

Fee shifting has been a recent theme in patent litigation, with judges, legislators, and state attorney generals alike attempting to curb abuses of the patent system by creating new penalties. One judge has fallen back on the long-standing inherent powers of the judiciary to do so. This appealing new method of punishing patent litigation abusers comes from the U.S. District Court of the District of Delaware, one of the nation’s busiest patent dockets. Judge Richard G. Andrews’ well-reasoned opinion awards attorneys’ fees to the defendant on the basis of the court’s inherent powers to penalize those who act in “bad faith, vexatiously, wantonly, or for oppressive reasons.” Parallel Iron LLC v. NetApp Inc., No. 12-769, Slip Op. at 15 (D.Del. Sept. 12, 2004).

New Jersey Assembly Advances Bill To Address Bad-Faith Patent Infringement Actions

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Posted in Patent

On October 7, 2014

We have previously posted on proposed federal and state legislation aimed at addressing the toll of “patent troll” litigation by non-practicing entities on the U.S. economy. The Gibbons IP Law Alert has previously posted regarding such issues on August 26, 2014, June 25, 2014, March 10, 2014, and December 13, 2013. Continuing the trend, the New Jersey General Assembly panel recently advanced bill A-2462 to address so called “Patent Troll” litigation. Consistent with other recent efforts at curbing patent litigation abuses, this bill attempts to identify wrongdoers and penalize specific abuses through monetary sanctions.

Patent Assertion Entities Hit With Rule 11 Sanctions and Section 285 Attorneys’ Fees in Separate Delaware District Court Cases

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Posted in Patent

On September 30, 2014

Much attention has been said about the role 35, U.S.C. § 285 in combating vexatious litigations brought by patent assertion entities (“PAE”) following the Supreme Court’s decision in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014). Overshadowed by the Supreme Court’s ruling is the imposition of sanctions under Federal Rule of Civil Procedure 11. Not anymore. In a recent federal court case before Judge Richard G. Andrews, of the District of Delaware, the patent assertion entity (PAE) plaintiff was hit with R. 11 sanctions, resulting in the dismissal of all pending actions. This ruling illustrates that courts have multiple avenues to exercise their discretion on how to approach PAE actions, and offers insights as to how defendants can thwart PAE litigants that bring baseless patent infringement claims.

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