Supreme Court Offers Guidance On Standard For Obtaining Fees In Copyright Cases

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For the second time this week, the Supreme Court unanimously clarified the legal standard for obtaining certain relief in intellectual property cases. In today’s opinion in Kirtsaeng v. John Wiley & Sons, Justice Kagan, writing for the Court, explained the analysis trial courts should engage in to determine whether and when to award attorneys’ fees...

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Supreme Court Rejects “Unduly Rigid” Federal Circuit Test For Enhanced Damages

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There is a certain Groundhog Day–effect to many recent Supreme Court patent cases. The Supreme Court takes up a case challenging a legal test the Federal Circuit has created, rejects that test, and sends the case back to the lower court with an admonition not to be too rigid in its approach. In so doing,...

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Accused Infringer Succeeds In Justifying Fee Award, Then Fails To Prove Fees

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In the latest twist in the saga of the Webvention patent litigation, Novartis has been denied its attorneys’ fees after having demonstrated that it was entitled to them. You can read the back–story here. (As noted there, our firm was involved in this case once upon a time, but not lately.) The sequel brings a...

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East Texas Court Orders Stay Pending Inter Partes Review

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Sometimes, the straightforward application of the law has the power to surprise. The United States Patent and Trademark Office has a process in place, called inter partes review, through which accused infringers can challenge the validity of patents asserted against them in litigation. Inter partes review is an adversary proceeding with a binding effect on...

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Eisenstein Argues Economic Nexus Challenge Before Ohio Supreme Court

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On May 3, B&I senior partner Martin Eisenstein argued before the Ohio Supreme Court on behalf of retailers Newegg Inc., Crutchfield Inc., and The Mason Companies, in a constitutional challenge to the gross receipts nexus standard of the Ohio Commercial Activity Tax (CAT).  Eisenstein was joined by partners David Bertoni and Matthew Schaefer as co-counsel...

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(In)voluntary Dismissal: Virginia Court Invalidates Patent; Florida Court Leaves Door Open To Fee Award

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It should go without saying that a defendant cannot infringe a patent claim that has been ruled invalid. In a recent ruling from the Middle District of Florida, that court addressed one of the consequences of this truism: what happens when one court invalidates a patent that has been asserted in a different court. In...

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A Rare Sight: East Texas Judge Grants Motion to Dismiss Patent Infringement Suit

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The data are in. As we’ve previously discussed, the U.S. District Court for the Eastern District of Texas outstrips all others for patent infringement litigation, with approximately 40% of all recent cases filed in that one court. The reasons plaintiffs—especially patent trolls—favor this district have been studied. Most recently, in an August 2015 article, “Forum...

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When You *Can* Say It Any Plainer Than That

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One of the peculiar features of most patent litigation—and one reason it is so expensive—is the process of claim construction. The courts have decided that disputes over the language of patent claims must be decided by the trial judge because they are “questions of law” not “questions of fact.” And that has come to mean...

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Timing Is Everything: Alice in East Texas (Again)

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Well, we warned you that Alice v. CLS Bank was going to remain a hot topic in 2016. Two more data points to support that theory have emerged, each of which, in a different way, relates to the proper timing of a judicial decision on the legal question of whether a patent’s claims are written...

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New Year’s Grab Bag: Old Topics and Young Lawyers

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Welcome to 2016! By all accounts, 2015 was a banner year: For patent litigation—the second–highest number of patent lawsuits ever were filed in 2015 (just behind 2013); For patent trolls, which accounted for two–thirds of those new lawsuits, up from 2014; And for the Eastern District of Texas, in which 44% of all new patent...

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