Virginia IP Law : Virginia Intellectual Property Lawyer & Attorney : Troutman Sanders Law Firm : Technology & Patent Litigation

As we have reported various times, the judges of the EDVA have come down on both sides of the Twiqbal/Form 18 issue, some finding that patent infringement claims must meet the pleading requirements set forth in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (see here), with other other judges finding it sufficient to meet the simple pleading suggested by Form 18 (see here). 

In a relatively recent decision (brought to our attention by Richard Brophy of Armstrong Teasdale LLP), Senior District Judge Robert E. Payne went a step further, issuing an Order dismissing both the Plaintiff’s Complaint for Patent Infringement and the Defendant’s Answer and Counterclaim sua sponte, finding that both failed to meet the Twombly/Iqbal standard. A copy of that Order can be found here. Perhaps the decision was influenced by the fact that the Plaintiff was acting pro se. Or perhaps not. (The plaintiff did file an Amended Complaint which was not dismissed sua sponte, though the case appears to have settled shortly thereafter).

In any event, the decision certainly puts litigants on notice that at least one EDVA judge is reading patent infringement complaints (and counterclaims) very carefully and may hold them stricltly to the Twombly/Iqbal standard.

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President Barack Obama dropped by the Thomas Jefferson High School for Science and Technology in Alexandria, Virginia last Friday to sign the America Invents Act, described by the White House here as “the most significant reform of the Patent Act since 1952.”

Our summary of key provisions of the Act can be found here and an analysis of the potential impact of the legislation on patent litigation in the Eastern District of Virginia can be found here.

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Yesterday, in what we believe is the largest verdict in an intellectual property case in Virginia, a jury in the Richmond Division of the Eastern District of Virginia awarded Dupont $920 million for misappropriation of trade secrets against the Korean company, Kolon Industries.  E.I. du Pont de Nemours and Co. v. Kolon Indus., Inc., 3:09CV58 (E.D. Va. Aug. 14, 2011) (Payne, J.).   The jury's 51 page verdict, in which they found for Dupont on all 155 claims of trade secret misappropriation, can be found here.  The clerk entered judgment on the verdict the same day.

For more on the Dupont v. Kolon case, see our earlier posts which summarize the background and Judge Payne's prior rulings in the case here, and here. 

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There are many patents awarded for inventions that may well be “new” but it is debatable whether they are “useful.” A recent Eastern District of Virginia case dealt with one such invention – a device that combined exercise equipment with a gambling device – which presumably allows a user to lose pounds and money at the same time. Fitness Gaming Corp. v. ICON Health & Fitness, Inc., 2011 U.S. Dist. LEXIS 90605 (E.D. Va. Aug. 12, 2011) (Hilton, J.), found here.

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Some of our colleagues have produced a concise summary of the most significant aspects of the Leahy-Smith America Invents Act (AIA), which can be found here. In advance of the legislation’s expected enactment by the President, we’d like to highlight a few provisions that will directly impact patent litigation in Virginia:

Venue

As we blogged here way back in 2009, Section 9 of the AIA moves venue for civil actions appealing various decisions of the PTO, BPAI and TTAB from the District Court in Washington, D.C. to the Eastern District of Virginia. Such actions include civil actions appealing decisions by the BPAI relating to patent rejections (35 USC 145) and interferences (35 USC 146), civil actions appealing decisions by the PTO relating to patent term adjustments (35 USC 154(b)(4)(A)), civil actions appealing decisions of the TTAB relating to registration of a trademark (15 USC 1071(b)(4)), and civil actions appealing suspensions or exclusions from practice before the PTO (35 USC 32). The change applies to any civil action commenced on or after the enactment of the AIA.

Multi-Defendant Litigation

We’ve noted  the increased frequency of patent litigation involving large groups of defendants on several occasions. Section 19 of the AIA addresses these cases by severely limiting joinder of defendants in patent litigation. Plaintiffs filing suit after enactment of the AIA can join multiple accused infringers only if the defendants are jointly or severally liable or liable in the alternative for infringement arising out of the same transaction, occurrence or series of transactions or occurrences. The claims must also involve questions of fact common to all defendants, and so common issues of claim construction will presumably be insufficient. In addition, the AIA specifically provides that an allegation that each defendant has infringed the same patent is insufficient for joinder. 

False Marking

Virginia has not been a hotbed of false marking cases, but many such cases have been brought here. Section 16 of the AIA effectively ends the practice of bringing qui tam false marking cases by restricting the award of statutory damages to the United States. A plaintiff can still recover compensatory damages for actual competitive injury, but the AIA provides that the marking of a product with an expired patent that covered the product does not constitute false marking. The false marking provisions of the AIA apply to all suits pending at the time of enactment.

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While jury trials are more common in patent infringement suits, under some circumstances a patentee may prefer a bench trial. A recent Order from Judge Lee reaffirms that a plaintiff may switch course and opt for a bench trial by waiving its damages claim, even if the waiver is made on the eve of trial and even if the defendant has filed a counterclaim. MeadWestvaco v. Rexam PLC, Case No. 1:10CV511 (E.D. Va. Aug. 31, 2011) (Lee, J.) (found here).

In Rexam, MeadWestvaco withdrew both its damages claim and its claim for attorneys’ fees just a few weeks before trial and so sought only equitable relief.  Rexam objected that the Seventh Amendment gives an accused infringer a right to jury trial on the issues of validity and infringement, but to no avail.  Since the defendant likewise sought only a declaratory judgment, Judge Lee ruled, there is no independent right to a jury trial. See Tegal v. Tokyo Electron Am., 247 F.3d 1331 (Fed. Cir. 2001). 

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As we’ve noted before, more and more patentees are suing multiple defendants selling unrelated – and often competing – accused products. While most EDVA judges deny defense efforts to sever these cases into individual claims, others have granted severance and transferred the severed actions. In a recent decision, Judge Morgan joins the majority, denying a motion to sever as premature. Bel IP LLC v. Boomerangit Inc., Case No. 2:11CV188 (E.D.Va. Aug. 26, 2011) (Morgan, J.).

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