By Robert Angle and Dabney Carr
This is the second in a series of posts following up on our recent article on patent litigation in the Eastern District of Virginia (found here). In this post, we talk about how the defendant-accused infringer should respond to a lawsuit to avoid putting itself behind the EDVA eight ball and turn the tide in its favor.
Continue Reading...While defendants have succesfully used the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombley, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) to challenge factually unsupported complaints in other types of litigation, “Twiqbal’s” more rigorous pleading standards have not posed a significant hurdle to plaintiffs in intellectual property litigation. See our earlier posts on Twombley and Iqbal in patent litigation here and here.
A similarly low threshold appears to apply in copyright infringement litigation. In a recent decision, Judge James C. Cacheris of the Eastern District of Virginia denied a motion to dismiss a copyright infringement claim for failing to meet the requirements of Twombley and Iqbal. Judge Cacheris ruled that to state a claim for copyright infringement, a plaintiff must allege only the ownership of a valid copyright and copying of the original elements of the material by the defendant. Softech Worldwide, LLC v. Internet Tech. Broadcasting Corp., 2010 U.S. Dist. LEXIS 86389 (E.D. Va. Aug. 23, 2010) (citing Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)).
Softech may not be the best example of the application of Twombley and Iqbal in the copyright context because the Complaint detailed the plaintiff’s development of its copyrighted software and the defendant’s alleged misappropriation of the software. Moreover, the motion to dismiss was a scattershot assertion of virtually every available threshold objection to a complaint – including personal jurisdiction, venue and an alleged violation of the “short and plain statement” rule in Fed. R. Civ. P. 8(a) –which the Court uniformly rejected. Regardless, it appears that a Complaint for copyright infringement, like patent infringement, need only provide bare-bones factual allegations to survive a motion to dismiss.
We’ve all become familiar with the “touchless” paper towel dispensers that churn out a paper towel when you wave your hands in front of the dispenser. In an August 10 decision, the Fourth Circuit held that Georgia Pacific may assert its trademark rights to bar competitors from selling paper towels to fit in its "hands-free" towel dispensers based on post-purchase confusion of the general public who used the towel dispensers in public restrooms.
In its decision, the Fourth Circuit reversed the District Court's dismissal of all of Georgia Pacific’s trademark infringement and unfair competition claims against Von Drehle Corporation, which made lower quality paper towels specifically designed to fit in Georgia Pacific’s “enMotion®” touchless towel dispensers.
Continue Reading...As we posted here, Judge Spencer upheld CompX International’s $39 million jury verdict against Humanscale Corporation for patent infringement. In keeping with our motto that “We read the opinions so you don’t have to,” here’s a bullet-point summary of Judge Spencer’s 40-page opinion, which can be found here and is also at 2010 U.S. Dist. LEXIS 83881 (E.D. Va. Aug. 16, 2010):
The Court correctly held that the term “tilting” should be given its ordinary meaning and did not impermissibly allow the jury to define a disputed claim term in violation of O2 Micro Int’l. Ltd. v. Beyond Innovation Tech., Co., 521 F.3d 1351 (Fed. Cir. 2008).
Substantial evidence supported the jury’s conclusion that there was no motivation to combine previous models of CompX’s patented products to include features found in equipment supports for other types of equipment, such as sewing machines, typewriters and ironing boards.
Humanscale failed to prove that sales of patented products occurred before the critical date.
The Court’s most in-depth analysis concerned laches. CompX had brought suit on the same patents a decade earlier, but had dismissed the suit without prejudice nine years before re-filing. The Court held that CompX’s nine-year delay was inexcusable and unreasonable but held that Humanscale failed to prove prejudice.
In a separate ruling, found here, the Court denied CompX's claim for prejudgment interest because of the delay in filing suit, but that is a hollow victory given the size of the damage award.
If nothing else, the ruling illustrates just how difficult it is to prevail on a laches defense. Even with a nine-year delay, Humanscale could not persuade the Court that it had suffered evidentiary or economic prejudice. The case illustrates how hard it is to show evidentiary prejudice when a defendant does not know what evidence has been lost, and it’s even harder for a defendant to adamantly deny it infringes while also claiming that it suffered economic prejudice because it would have behaved differently if suit had been filed earlier.
The Court refused to reconsider its decision to grant judgment as a matter of law on these three defenses, illustrating, as was the case with laches, the heavy burden a defendant bears on these defenses.
As we noted here, Judge Robert E. Payne recently ruled on two summary judgment motions in WiAV Solutions LLC's patent suit against numerous mobile telephone companies. Our earlier post addressed the Court’s ruling on marking. In his second opinion, Judge Payne granted defendants summary judgment on WiAV’s claim of infringement under the doctrine of equivalents. The decision can be found here.
WiAV’s patent provides a method for monitoring the quality of a traffic channel for mobile phones by measuring the quality of a separate control channel. WiAV claimed that a "training sequence" and a "common pilot channel" used by the accused products were equivalent to a control channel. The defendants pointed out, however, that
WiAV, Judge Payne ruled, “offers a function, way and result divorced from the language of the claims.” For example, WiAV’s argument that the function of the patented process did not include a control channel was “belied by the claim terms themselves” which made clear that a control channel was required.
In the same opinion, Judge Payne denied summary judgment on literal infringement, and so WiAV's claims remain alive for trial, which is set for October.
In a 40 page opinion filed Monday, Chief Judge James R. Spencer of the U.S. District Court for the Eastern District of Virginia has denied several post-trial motions by the losing litigant, HumanScale, in a patent infringement case where CompX won a $19.3 million jury verdict on its counterclaims (case no. 3:09-CV-86).
For more information on the case, see our past blog entries here (after the jury verdict) and here (after denial of a permanent injunction to CompX).
Hat tip: Virginia Lawyers Weekly blog, which also offers a copy of the opinion for download.
In the ongoing patent battle between WiAV Solutions, LLC and a number of mobile technology companies (Motorola, Nokia, et al.), Judge Robert E. Payne has ruled in the last two days on two of defendants’ motions for summary judgment. One opinion’s interpretation of the patent marking statute has implications beyond this suit, and that opinion also offers both positive and negative procedural lessons of which practitioners should take note.
Continue Reading...At the end of April, we posted about Google’s victory over Rosetta Stone in the Eastern District of Virginia suit (case no. 1:09-cv-00736) over the use of the prominent language software company’s marks in Google’s AdWords advertising program.
Judge Gerald Bruce Lee has now handed down (on August 3rd) a memorandum order and an opinion explaining his decision to grant final judgment to Google. The case and the 58 pages of order and opinion merit in-depth analysis and discussion. Here is a summary of the rationale to begin that conversation.
Continue Reading...By Dabney Carr and Robert Angle
As we noted in an earlier post, we will blog about several issues that space did not allow us to address in depth in our recent article, found here, on patent litigation in the Eastern District of Virginia. As our first follow-up post, we want to talk about some of the pre-filing concerns faced by a patentee planning to file an infringement suit in the EDVA.
The docket speed of the EDVA is a two-edged sword for the plaintiff-patentee. On the one hand, getting to trial in less than a year allows a patentee to enforce its rights swiftly. On the other hand, the court's system of randomly assigning patent cases to the three divisions creates some uncertainties (the differences between divisions and judges is discussed in more depth in the article). In addition, the fast schedule requires the plaintiff-patentee to do more pre-filing "due diligence" because there is no time to conduct a fact investigation during discovery. Among the tasks a plaintiff-patentee should complete before filing suit are:
The moral of the story for the plaintiff-patentee is "prepare as much as you can before filing suit." The more prepared the plaintiff-patentee is, the more it will be able to take advantage of the EDVA's "rocket docket."
Next time …. How the Defendant-Accused Infringer should respond to a new lawsuit to avoid putting itself behind the EDVA eight ball and even turn the tide in its favor.
Colleagues in our Internet, E-Commerce, and Information Technology group have published an article of interest to those in the IP world. In it they discuss the Copyright Office's recent ruling that removing restrictions built into mobile device software does not violate the Digital Millennium Copyright Act. The ruling is certainly a significant development in a hot technology and IP area, and it may carry more general implications for software development. The article, which includes a link to the ruling, is here:
http://www.troutmansanders.com/tonight-theres-gonna-be-a-jailbreak-of-your-software-07-30-2010/
(And if, like me, you have not been blessed with familiarity with Thin Lizzy, take heart: you are not alone, and Wikipedia is always there to help.)
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