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Game of Kings

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If the smartphone wars are the patent world’s nuclear conflicts, then the mass portfolio auctions—where besieged telecommunications companies or the like try to tempt modern giants such as Google or Apple with their accumulated patent holdings—are its arms race. Yet all is not prosperous in the patent Cold War. We note that struggling Kodak seems...

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Joinder By Any Other Name…

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As discussed before, multi–defendant cases persisted even after patent reform. However, the Federal Circuit has recently deemed the practice of joining multiple unrelated defendants in one case merely by alleging that they infringe the same patent unacceptable even for cases filed prior to the America Invents Act. But that appears to be only part of the story....

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Deposition Do’s and Don’t’s: Pick Your Poison Apple

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A grim tale for a Friday, and a reminder of the dangers litigation counsel risks in terminating a deposition without firm legal support: Patent plaintiff VirnetX was deposing an Apple engineer asking him to compare a patent application on which he is named as a co–inventor with the patent asserted by VirnetX against Apple in...

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Another Not–So Exceptional Case: Attorneys’ Fees, Objective Tests, and Appellate Review

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On the heels of our discussion of the proposed SHIELD Act that if enacted would make it easier for prevailing defendants in computer software or hardware cases to obtain an award of fees and costs comes the latest Federal Circuit opinion demonstrating how difficult it is to meet the current “exceptional case” standard for fee–shifting...

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Patent Troll Reform?

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The Electronic Frontier Foundation has published the text of the awkwardly named Saving High–Tech Innovators from Egregious Legal Disputes Act of 2012 a/k/a the SHIELD Act, introduced earlier this week by Reps. DeFazio (D–Oregon) and Chaffetz (R–Utah). The bill would add a new provision to the patent laws covering the recovery of litigation costs for...

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A Minor Observation on a Topic of Minor Interest

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Judge Davis—somewhat of a household name to those who practice in the Eastern District of Texas—has issued a number of new standing orders regarding his courtroom and case management procedures. We make one comment on a seemingly–mundane and unobjectionable order, relating to motions for extension of time to answer, excerpted here in relevant part: “The...

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Summertime And The Living Is Easy…

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First, while a bit belated, we’d like to thank our readers for IPWise’s recent milestone, crossing the page–view threshold into five–digit territory. To our regular subscribers as well as those of you who stumbled upon a post you enjoyed on our site—thanks for reading. Second, in honor of the Summer Games, we take a break...

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Let’s Be Reasonable About Reasonable Royalties

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In the absence of lost profits, patent infringement damages are generally measured by a “reasonable royalty,” which is in turn calculated through a “hypothetical negotiation” between the patent–owner and the infringer. As the Federal Circuit wrote way back in 1988, “The methodology encompasses fantasy and flexibility; fantasy because it requires a court to imagine what...

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Unified Message from the Trial Court: Get to the Point Quicker (and Cheaper)

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In the long dance of patent litigation, plaintiffs often try to assert as many claims of as many patents as they can in order to increase the workload (and headaches) for the defendants. By the same token, the defendants often try to respond in kind by identifying as many conceivable potential invalidating prior art references...

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Manifestly Evident Divide Within The Federal Circuit Over Patent Eligibility

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In an important opinion, an increasingly divided Federal Circuit Court of Appeals has once again addressed the delicate question of when the use of a computer renders an otherwise abstract idea patentable. As with other recent cases in this area, this opinion is as noteworthy for the division among the judges of the court as...

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