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IP Wise

Making Business Wise About Intellectual Property Litigation

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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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Not Dead Yet: False Marking Claims

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We’ve commented numerous times before about the rise—and fall—of so–called “false marking” claims, which, like the goddess Athena of Greek mythology, were born fully armed and fighting (following the Federal Circuit’s decision in Forest Group, Inc. v. Bon Tool Co. rapidly expanding the amount of damages which could be claimed by a party bringing suit),...

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Fact–Checking With the Supreme Court

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Congress has created a web of laws that connect the U.S. Patent and Trademark Office with the federal courts. Sometimes—arguably too often—this web is a tangled one, creating inconsistencies between what you can do and argue in the Patent Office and what you can do and argue in Court. For an example, see the full–throated...

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Staying the Master of Your Domain

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As the college football season comes to a close and the NFL playoffs heat up, we’re ready to reach for a football cliché to describe the latest developments in the world of Internet domain names. Sometimes the best defense is a good offense…and sometimes it’s best to defend against offensiveness. That is the theory behind...

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An Exceptional Loss

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In a recent panel decision, MarcTec, LLC v. Johnson & Johnson and Cordis Corp., the Federal Circuit once again affirmed a decision hitting an exceptional plaintiff with an exceptional attorneys’ fees award. In MarcTec, the lower court found that the Plaintiff engaged in litigation misconduct, raising “baseless” and “frivolous” allegations of infringement and acting in “bad faith” in bringing...

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