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IP Wise

Making Business Wise About Intellectual Property Litigation

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Forms That No Longer Function

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Patent litigation runs on rules—specifically, the Federal Rules of Civil Procedure and the local rules of individual federal courts where patent cases are filed. When two rules collide, what gives? To state a claim for patent infringement (or any other civil claim), a plaintiff must make a short plain statement of the claim under Fed....

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Of Covenants and Certainty

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We’ve certainly spoken before about retailers and their vendors, or distributors and their suppliers, or any other circumstance where a defendant is sued on an infringement claim for a product or service provided by someone else. We comment on an interesting decision out of the Southern District of New York, concerning parties evidently engaged in...

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Dance of the Districts

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Like our colleagues, we at IP Wise received LegalMetric’s latest email blast with patent–related statistics, and noted the striking fact that all six of the top judges (in terms of number of patent cases filed in 2011) were located either in Texas (Davis, Folsom, Gilstrap) or in Delaware (Sleet, Stark, Robinson). Each judge had over 100...

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Whose Line (Of Source Code) Is It Anyway?

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While almost every business relies on the Internet these days for commercial purposes—making sales, tracking orders, providing customer service—that does not mean that every business is in the business of software development. Most e–commerce source code, for example, is not home–grown, or at least not exclusively home grown. Once you’ve been sued for patent infringement...

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In re a Googolplex of Documents

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We’ve touched before on the topic of discovery. Like Thackeray’s Vanity Fair, the world of discovery is “not a moral place certainly; nor a merry one, though very noisy.” Often gear–grinding, particularly in an infringement case, and causing both in–house counsel and first–year associates to tremble with fear or collapse from boredom, discovery nonetheless can...

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Logically First, But Practically Never?

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The Patently–O blog draws our attention to an opinion of the Federal Circuit Court of Appeals in Dealertrack v. Huber that poses a big question about a big subject: patentable subject matter. Specifically, when should the court consider whether an issued patent is invalid because it does not claim patentable subject matter? That is, is...

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The Chain of Command for Complaints

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The Supreme Court’s twin decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal have stirred up the pot of pleading standards in the years since their issuance. An irritation to every plaintiff’s lawyer, a touchstone to every defendant’s lawyer, Twombly and Iqbal heightened the level of detail required to state a valid claim. Just...

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Multi–Defendant Patent Litigation, or the Hydra–Headed Zombie

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Once upon a time—stop me if you’ve heard this one before—patent–owners could file lawsuits against dozens of unrelated defendants in the same lawsuit under the theory that allegedly infringing the same patent created common issues of law or fact among those defendants. That was true, at least, in a minority of federal district courts, which...

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When Washington Meets Wikipedia

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We briefly report on two intersecting developments in the world of IP this week: the Supreme Court’s affirmation of Congressional copyright authority on the one hand—and the take–it–to–the–Internet protest of the same by a who’s who of websites. Golan v. Holder. The Supreme Court recently affirmed a lower court ruling that the Copyright Clause of...

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How Many Cyber–Eviction Notices Do You Need To Evict Cyber–Squatters?

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Thanks to Congress, we now know that you can’t sue a bunch of unrelated defendants for patent infringement in the same case. The logic of that rule is that multiple defendants can be accused of infringing a patent without being accused of infringing that patent in the same way or under the same facts. Defendant...

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