Our Troutman Sanders IP group colleagues have a more detailed analysis of yesterday's decision by the United States Supreme Court in Bilski v. Kappos, available at this link:
Also, Richmonders interested in more about Bilski should plan to attend the GRIPLA meeting on July 7, 2010, from 5-7 pm, at the University of Richmond Downtown location at 626 E. Broad Street. The meeting will feature Professor Chris Cotropia of the University of Richmond Law School addressing Bilski.
In its long-awaited opinion in Bilksi v. Kappos, found here, the Supreme Court unanimously affirmed the Federal Circuit's judgment that the claims at issue were unpatentable but also held unanimously that the "machine or transformation" test of determining whether a claimed process is patentable is not the sole test for determining patentability. Beyond holding that the petitioners' claims were unpatentable abstract ideas, however, the majority did not go any further, merely stating that it "need not define further what constitutes a patentable 'process,' beyond pointing to the definition of that term provided in §100(b)" and its earlier precedents.
Kennedy wrote the majority opinion, which was joined in full by Roberts, Thomas and Alito. Scalia joined in all but two parts of Kennedy's opinion. Stevens wrote a concurrence joined by Ginsburg, Breyer and Sotomayor; and Breyer wrote an opinion concurring in the judgment, in which Scalia joined in part.
Chambers and Partners' 2010 Edition of Chambers USA gives Troutman Sanders a top-level ranking for Intellectual Property in Southern Virginia, stating that the group "continues to garner praise for its litigation expertise." Virginia IP Law bloggers Robert Angle, Rob Brooke and Dabney Carr are also ranked individually in intellectual property. A full list of Troutman Sanders' rankings can be found here.
Two of our bloggers, Dabney Carr and Robert Angle, have published an article this month in the Intellectual Property & Technology Law Journal titled “Litigating Patent Infringement Cases in the ‘Rocket Docket’ of the Eastern District of Virginia.” The article can be found here.
Among other topics, the article delves into pretrial scheduling, discovery, claim construction, motions practice and trial practice in all three divisions of the EDVA. We hope that you find it a helpful and useful guide for litigating in the “Rocket Docket.”
There were several issues that space did not allow us to address in the article to the depth we would like, including specific advice for both patentees and accused infringers. We plan to have an ongoing series of posts on the blog on these individual topics, so stay tuned.
As we recently posted here, TecSec v. IBM, which is pending before Judge Brinkema in the Alexandria Division, is an example of a recent trend in patent infringement litigation – a plaintiff suing multiple defendants selling different accused products. In many cases, the defendants are market competitors selling completely distinct products which have no connection to each other.
These cases resemble mass tort litigation, except that instead of multiple plaintiffs consolidating tort claims against a single defendant, in a “mass patent” case a single plaintiff consolidates multiple claims against a large group of defendants, perhaps all the defendants in the industry. For example, in TecSec the plaintiff asserted 13 patents against 11 separate groups of defendants selling widely different products.
Continue Reading...In a June 3, 2010 opinion, Judge Hudson denied summary judgment of copyright noninfringement in the case of The Harvester, Inc. v. Rule Joy Trammell + Rubio, LLC, Civil Action No. 3:09cv358 (E.D. Virginia). Plaintiff Commonwealth Architects claimed that Rule Joy Trammell + Rubio LLC (“Rule Joy”) infringed its copyright held in a set of architectural drawings involving the John Marshall Hotel in Richmond, Virginia. Specifically, Commonwealth Architects alleged that Rule Joy violated its copyright by (1) making wholesale copies of the drawings by scanning them in a .PDF file and (2) incorporating particular aspects of the drawings into Rule Joy’s own drawings prepared for the Hotel after Commonwealth Architects was replaced on the renovation project.
Continue Reading...June has brought privilege and inadvertent disclosure to the forefront in Virginia, with recent decisions on the subject from both the U.S. District Court for the Western District of Virginia and the Supreme Court of Virginia, and a new state statute that takes effect on July 1.
Continue Reading...In a widely-followed appeal of an Eastern District of Virginia case which we previously blogged about here, the Federal Circuit held today that Solo Cup did not have the "intent to deceive the 
public" required for false marking liability. in Pequignot v. Solo Cup Co., No. 2009-1547 (Fed. Cir. June 10, 2010) (found here). The decision affirmed Judge Brinkema's ruling granting summary judgment in favor of Solo Cup, Pequignot v. Solo Cup Co., 646 F.Supp. 2d 790 (E.D. Va. 2009). Under the Federal Circuit’s decision, even if a patentee knowingly marks a product with an expired patent, it can avoid liability by showing by a preponderance of the evidence that it did not intend to deceive the public.
In short, Solo Cup marked certain plastic cold drink lids by stamping the lids with two patent numbers during the production process. After one of the patents expired, Solo sought advice of counsel about whether it needed to replace all of its stamping molds to remove the patent number. Based on the advice it received and the cost of replacing all of its molds, Solo developed a policy to wait to remove the expired patents when it replaced the molds. Solo’s outside counsel also advised Solo to include on its packaging the phrase “the product may be covered by one or more U.S. or foreign pending or issued patents. For details contact www.solocup.com.” Based on that advice, Solo placed the “may be covered” language on its packaging, even though it knew that some of the packaging was not patented.
Judge Brinkema granted summary judgment to Solo, finding that Solo had no intent to deceive the public. Solo’s knowledge of the falsity of the patent marking, she held, raised a rebuttable presumption of intent to deceive. Solo successfully rebutted that presumption, however, based on its good faith reliance on advice of counsel and its desire to reduce costs and avoid business disruption. Judge Brinkema likewise found that Solo had rebutted the presumption with respect to the “may be covered” language based on the advice of counsel and for logistical and financial reasons.
The Federal Circuit affirmed the finding of lack of intent to deceive.
Solo’s unrebutted evidence that it relied on the advice of counsel, its evidence that its true intent was to reduce costs and business disruption and its good faith step of implementing and following a policy to remove the patent numbers when molds were replaced were sufficient to rebut the presumption of deceptive intent.
As to the “may be covered” language, the Court held that “it is highly questionable” whether such a statement could be made for the purpose of deceiving the public. Regardless, the court affirmed Judge Brinkema’s decision that Solo’s evidence successfully rebutted the presumption.
The Federal Circuit did not agree with Solo on everything, however. It rejected Solo’s claim that the statute did not apply where products were previously covered by a patent. It also refused to reach Judge Brinkema’s alternative holding that even if Solo had an intent to deceive, it could have committed no more than three “offenses” within the meaning of the statute.
Late last week, Judge Norman K. Moon of the U.S. District Court for the Western District of Virginia, issued a 55-page opinion denying a motion for preliminary injunction in patent litigation regarding a medical device. See MicroAire Surgical Instruments, LLC v. Arthrex, Inc., case no. 3:09-cv-00078 (W.D. Va. June 3, 2010).
Continue Reading...
The Northern Virginia Chapter of the Federal Bar Association will hold its annual Patent Litigation Seminar on June 22 from 3:00 to 5:00 at the Eastern District of Virginia's Alexandria Courthouse. District Judge Lee and O'Grady and Magistrate Judges Jones and Anderson will speak on a panel moderated by Chip Molster and Caitlin Lhommedieu. This annual seminar is known for its valuable tips from the Eastern District Judges on practice in patent cases in the Alexandria Division. A flyer and registration form for the seminar can be found here.
In an order entered June 4 in TecSec v. IBM, et al, Case No. 1:10CV115, Judge Brinkema in Alexandria rejected an increasingly common tactic in patent cases – suing multiple unrelated defendants on numerous patents. While the practice apparently is allowed in the Eastern District of Texas, Judge Brinkema rebuffed it – ordering that the litigation proceed solely against IBM and staying the claims against the other defendants. The Court’s June 4 Order can be found here.
TecSec’s Complaint was massive and complex. It asserted 11 patents with a total of 380 claims in the very esoteric field of computer encryption technology against 13 separate defendant groups, including IBM, Oracle, SAP, Adobe, eBay and PayPal.
The defendants responded aggressively, filing an early motion to modify the Court’s normal pretrial schedule to extend the time for discovery and to require TecSec to issue its claim charts very early -- prior to the Rule 16(b) Pretrial Conference. The defendants emphasized the extraordinary nature of the case, pointing out that TecSec would not identify which of the 380 claims it was asserting and the massive amount of discovery that was expected – including an agreement to up to 800 hours of fact-witness depositions.
Judge Brinkema swiftly issued an order the day after defendants’ motion was filed ordering the parties to appear for a hearing the following Friday and indicating that she was considering limiting the litigation to one of the named defendants. At the hearing, Judge Brinkema granted the motion and moved the case schedule back by more than two months, which is almost unprecedented in the Eastern District of Virginia. The judge also ordered TecSec to file its finalized claim charts in two weeks. Judge Brinkema’s April 30 Order can be found here.
TecSec’s claim charts did little to narrow the case. It asserted 205 of the claims against a total of 61 accused products. TecSec asserted 196 claims against 29 IBM products and no fewer than 68 claims against each of the other Defendants. Moreover, TecSec accused a diverse range of products of infringement, ranging from mainframes, to programming languages, routers, database systems and PayPal’s online payment systems.
In response, all of the defendants except IBM moved to sever and to stay the claims against them. The moving defendants pointed out that they were competitors selling unique, proprietary products and argued that FRCP 18 and 20 do not permit the joinder of multiple defendants into a single lawsuit where the claims against the defendants are unrelated.
After a hearing on June 4, Judge Brinkema agreed with the moving defendants and entered an order directing that the litigation proceed solely against IBM and that the claims against all other defendants be stayed.
Judge Brinkema did not set forth the reasoning for her decision, but two factors made TecSec a good candidate for severance:
The broader issue is whether the Eastern District of Virginia judges would grant severance in other multiple defendant patent cases. On that issue, there appears a clear divide between the Eastern District of Virginia and the Eastern District of Texas. We plan to address the split between the courts in detail in a follow-up blog post soon.
We blogged earlier about Prof. Mark Lemley's conclusions that the Eastern District of Virginia was a top venue for patentee plaintiffs (and for fastest resolution). Another patent litigation report -- this time by LegalMetric, an intellectual property case law research and analysis company -- has now come to similar conclusions.
The exact rankings appear to differ a bit, and LegalMetric's full data/methodology is not explained online (although we gathered and reported a bit of information about LegalMetric's methodology in a prior post). The company recently ranked the Eastern District of Virginia among the top five districts in two categories:
The latter speed ranking comes as no surprise in the "Rocket Docket," but the continued ranking of the Eastern District among top patentee plaintiff venues may raise some eyebrows.
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