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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As we reported here, the trial between DuPont and a Korean competitor, Kolon Industries, relating to the alleged theft of trade secrets about DuPont’s Kevlar® fiber began on July 21.  That same day, District Judge Robert E. Payne issued a 91-page opinion (found here) sanctioning Kolon for deleting emails and files relevant to DuPont’s trade secrets claims.  Judge Payne found that “the actions taken by the key employees discussed herein were intentional, in bad faith and quite serious,” but he refused to grant default judgment as requested by DuPont and instead will instruct the jury that Kolon destroyed relevant information after learning of the suit and that such information would have been helpful to DuPont and harmful to Kolon. 

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On November 23, 2010, the United States District Court for the Eastern District of Virginia (“EDVA”) endorsed the AmericanCollege of Trial Lawyers’ Code of Pretrial and Trial Conduct.  A recent article (co-authored with David N. Anthony and Nicholas R. Klaiber) appearing in the Winter/Spring 2011 issue of the Virginia State Bar Litigation Section's Litigation News discusses the implications of the EDVA's endorsement of the Code of Conduct.  That article can be found here. 

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The U.S. District Court for the Eastern District of Virginia (“EDVA”) -- the original “Rocket Docket”-- ranks as the fastest and one of the busiest federal courts in the nation. Its proximity to many federal agencies, such as the Patent and Trademark Office, and the many major corporations with offices in Virginia also make it a natural choice for a wide variety of litigation, including patent litigation and other intellectual property litigation, complex financial fraud and securities litigation and high-profile government prosecutions.

The many challenges of the EDVA call for skilled counsel with significant, first-hand EDVA experience, for whom the EDVA’s pressures and procedures are second nature. Recognizing the unique nature of litigation in the Eastern District of Virginia, Troutman Sanders has established a team of experienced federal court litigators with the local knowledge and years of hands-on and successful experience necessary to litigate complex cases in the EDVA. The Troutman Sanders team includes thirteen lawyers who are former law clerks to judges in all three divisions of the EDVA and whose members have appeared as counsel in hundreds of EDVA cases.

To learn more about Troutman Sanders’ EDVA team, click here or here or contact our EDVA Team contacts, Robert Angle or Dabney Carr.

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On November 8, 2010, U.S. District Judge James C. Cacheris handed down a memorandum opinion that may send some chills down the spines of plaintiffs’ lawyers.

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The United States District Court for the Eastern District of Virginia made an announcement of proposed amendments to the Local Rules (which can be found here) and are seeking public comment. The notice is on the EDVA website found here.

The more substantive proposed changes include the following:

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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.

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Yesterday, the United States District Court for the Western District of Virginia formally adopted local rules for the first time, effective April 8, 2010.  A copy is available here. 

None of the local rules are directed only at IP cases.  But litigants seeking to protect their intellectual property while in litigation in the Western District will certainly want to take note of Local Rule 9, which now sets forth details (with brief commentary on the governing Fourth Circuit case law) regarding how documents may be filed under seal. 

IP litigants also will need to be cognizant of Local Rule 54, which provides that, unless otherwise provided by statute, rule, or court order, a motion seeking an award of attorney's fees must be filed within 14 days of entry of judgment, and that noncompliance with that deadline may be deemed a waiver.

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