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

Dan Ladow, Jeff Morgan, and I have authored a Troutman Sanders Advisory discussing the Federal Circuit’s recent removal of the presumption of irreparable harm when seeking a permanent injunction. In Robert Bosch LLC v. Pylon Mfg. Corp., a three-judge panel at the Federal Circuit held the presumption of irreparable harm to no longer apply and that courts should conduct a full four-factor analysis when determining the appropriateness of injunctive relief. The full advisory, which analyzes the decision and how it informs future requests for such relief, can be found here.

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Following on the heels of Judge Gibney’s decisions in Raw Films, Ltd. v. John Does 1-32, Civil Action No. 3:11cv532 (October 5, 2011, amended on October 13, 2011), discussed here, Magistrate Judge Tommy E. Miller, in Hard Drive Productions, Inc. v. John Does 1-30, 2:11cv345 (October 17, 2011), found here, held that the mere allegations that Doe defendants have used the same peer-to-peer network – BitTorrent - to copy and reproduce video is insufficient to meet the standards of joinder. 

Also of note, Magistrate Judge Miller, recognizing that there were three other nearly identical cases currently pending in the District involving the alleged use of BitTorrent protocols to engage in copyright infringement, observed that in all the pending cases, including the one at bar, the Doe Defendants have indicated that plaintiffs have contacted them directly, demanding money to end the litigation.  Then, when any Doe Defendant files a motion to sever, plaintiff quickly and voluntarily dismisses that Doe Defendant as a party in the matter to avoid the issue being presented to the court for resolution.  In all of these cases, however, the Court has also allowed expedited discovery to allow plaintiffs to issue Rule 45 subpoenas to the Doe Defendants.  As a result of this behavior, the Court ordered that plaintiff show cause as to why all the materials gained by the Rule 45 subpoenas should not be suppressed and the severed Doe Defendants fully dismissed.

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In a follow-up to the largest patent infringement verdict in Eastern District of Virginia history, ActiveVideo has been awarded supplemental damages of $17.4 million, pre-judgment interest of $6.6 million and post-judgment interest in an amount to be determined. ActiveVideo Networks, Inc. v. Verizon Comm’s., Inc., Case No. 2:10CV248, 2011 U.S. Dist. LEXIS 119001 (E.D. Va. Oct. 14, 2011) (Jackson, J.) (found here). Judge Jackson also denied Verizon Communications’ post-trial motions in two short orders found here and here. 

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In Raw Films, Ltd. v. John Does 1-32, Civil Action No. 3:11cv532 (October 5, 2011, amended on October 13, 2011), found here, Judge John A. Gibney, Jr., found that plaintiff had improperly joined 32 Doe defendants together in a copyright infringement suit involving the alleged uploading and downloading of a pornographic film “Raw Rescue” using a peer-to-peer sharing client known as BitTorrent.   

Once a file is loaded using the BitTorrent software, BitTorrent allows the file to immediately be made available to other users looking to copy the file. The collection of users who simultaneously “share” a particular file is known as a “swarm.”  Relying on this “swarm” theory,” the plaintiff claimed that the defendants acted in concert through a series of transactions to commit the infringement. 

Judge Gibney found that the mere allegation that defendants used the same peer-to-peer network to copy and reproduce the film was insufficient to meet the joinder standard, especially as the use occurred on different days and times over a span of three months.  Id. at 3.  Simply committing the same type of violation in the same way does not link defendants together for purposes of joinder.  Id.  As a result, Judge Gibney severed all of the defendants but one.

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On October 5, Senators Chris Coons and Herb Kohl introduced an amendment to S. 1619, the Currency Exchange Rate Oversight Reform Act, that would provide a private civil cause of action in federal court for trade secret theft. The proposal, however, appears to be a solution in search of a problem, and the amendment was not ultimately included in the legislation, which passed the Senate on October 11.

The proposed amendment would have amended the criminal statute for theft of trade secrets, 18 U.S.C. § 1831 et seq., to allow “[a]ny person aggrieved by a violation of [18 U.S.C. § 1832(a)]” to bring a civil action in federal court. Such an action need only

• “describe with specificity the reasonable measures taken to protect the secrecy of the alleged trade secrets in dispute;” and
• include a sworn representation “that the dispute involves either substantial need for nationwide service of process or misappropriation of trade secrets from the United States to another country.” 

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Late last month, the United States Court of Appeals for the Fourth Circuit heard arguments in a case accusing search giant, Google, of violations of federal and state trademark laws when it sold keyword advertising based on Rosetta Stone's marks to competitors, some of which market counterfeit goods.

Rosetta Stone alleges a plethora of infringing practices upon Google, including:

• Google’s practice of auctioning off trademarks to advertisers for use in their Sponsored Link titles and advertisements,
• Google’s use of trademarks as keyword triggers,
• Google’s inducement of third party advertisers to bid on trademarks, especially if knowing advertisers are selling counterfeit goods, and
• Google’s exercise of control over third party text advertisements incorporating trademarks.

At the District Court, Judge Lee granted summary judgment for Google in Rosetta Stone, Ltd., v. Google, Inc., 1:09CV736 (E.D. Va. Aug. 3, 2011), therein stating no reasonable trier of fact could find consumer confusion in the use of Rosetta Stone’s trademarks in Google’s Sponsored Links, and that trademark-based keyword indexing is purely a functional and non-infringing use.

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