Chicago IP Attorney & Lawyer : R. David Donoghue : Chicago IP Litigation Blog

IP Watchdog's Gene Quinn is continuing his quest to identify the top patent blogs.  As a starting point he used traffic-based ratings from Technorati and Alexa to identify 50 of the most read patent blogs.  But Quinn did not stop there.  In order to add a subjective evaluation of the blogs, he is asking you to vote for your favorite and identify those that you follow here -- if you chose to vote for this blog, thank you.

I am generally not a fan of best blog competitions because blogging is so personal to both bloggers and blog readers.  But as the wise folks at Securing Innovation* pointed out, surveys like Quinn's benefit the entire intellectual property community by highlighting and promoting the best of the blogosphere.

Here is Quinn's list of top patent blogs in alphabetical order:

• 271 Patent Blog
• Against Monopoly
• Anticipate This!
• BlawgIT
• California Biotech Law
• Chicago IP Litigation
• European Patent Caselaw
• File Wrapper
• Georgia Patent Law
• Holman's Biotech IP
• Honoring the Inventor
• I/P Updates
• India Patent
• Intellectual Asset Management
• Intellectual Property Watch
• Inventive Step
• IP Estonia
• IP Kat
• IP NewsFlash
• IP Spotlight
• IP Think Tank
• IPJUR
• IPWatchdog.com
• Just An Examiner
• Nanomedicine & IP
• OC Patent Lawyer
• Orange Book Blog
• Patent Arcade
• Patent Assassins
• Patent Baristas
• Patent Circle
• Patent Docs
• Patent Infringement Updates
• Patent Prospector
• Patentability
• Patentably Defined
• Patently-O
• Patentnapsis
• Patents 101
• PatLit
• PHOSITA
• Promote the Progress
• Russian Patents
• Securing Innovation
• Spicy IP
• The Business of Patents
• The Invent Blog
• The IP Factor
• The Prior Art
• Washington State Patent Law

*  Thank you to Securing Innovation for putting together the hyperlinked list of blogs and giving me permission to copy them into this post.

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Several years ago, Georgetown University law student, and now fellow GULC alum, Sarah Levien Shullman analyzed Supreme Court arguments and found that you could predict the winner based on the Court's questions.  The party that was asked more questions almost always lost.  According to Adam Liptak's recent New York Times story* -- click here to read it -- Chief Justice Roberts, as an appellate judge, reproduced the study with a sample of cases since 1980 and confirmed the results, explaining to the Supreme Court Historical Society:

The most-asked-question ‘rule’ predicted the winner — or more accurately, the loser — in 24 of those 28 cases, an 86 percent prediction rate

The study made me think about predicting district court outcomes.  A study of district court outcomes based on questioning would be much hard to perform accurately because the data set is much larger and the decision making body is much larger and less interrelated.  My experience says that, at the district court level, you can learn more from the tone and substance of a court's questions than from the number of those questions.  But I am curious to hear what you think.

*  Tip of the hat to the Legal Writing Prof Blog for identifying the story.

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Today, I take a day off from intellectual property to say "thank you" to the men and women who have given their lives in service to our country, and to those protecting us around the world today.  Amidst the barbecues and time with family and friends, take a moment to remember our young soldiers.  And here is a link to Patent Barista's 2008 Memorial Day Blawg Review.  The posts it reviews are no longer topical, but the picture of the young woman lying down in a military cemetery is still just as moving.

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It appears that some lawyers are trying to bring their business casual office style into the courtroom, and Illinois judges do not like it.  Yesterday, the Wall Street Journal Law Blog reported that a panel of Illinois judges, including Northern District Judges, at the Seventh Circuit Bar conference agreed that attorneys are appearing in court wearing inappropriate clothing, including themed-ties and clothes that would be appropriate for the gym -- click here to read the story.

Many will dismiss this story as fluff, but it is not.  How you dress is an important element of your first impression on the court, just like it is in any social interaction.  As a federal law clerk, I learned three things about the impact of a lawyer's clothing choices:  1) judges care how you dress; 2) jurors care also; and 3) simple things go a long way.  One of the first insights I received from my judge was to always button your coat when you stand up in court.*  I confess that I thought it was a minor point and I could not imagine that anyone noticed an unbuttoned coat.  But that changed when we spoke with a jury after a case weeks later, and one of the jurors mentioned that it bothered him that one of the trial attorneys did not button his coat.  He felt it was sloppy and disrespectful.

Finally, in defense of Chicago lawyers this Chicago lawyer is in the running for Esquire's best dressed man of 2009.  And if this post makes you think about a new suit, I highly recommend Richard Bennett Custom Tailors.

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Americash Loans, LLC v. AO Ventures, LLC, No. 08 C 5147 (N.D. Ill. Mar. 19, 2009) (Der-Yeghiayan, J.).

Judge Der-Yeghiayan denied defendant AO Ventures (“AOV”) motion to dismiss plaintiff Americash Loans' Lanham Act and related state law claims. Americash Loans alleged that AOV infringed Americash Loans' “Americash Loans” mark by advertising confusingly similar mark on AOV's website. First, the Court held that Americash Loans' prior settlement of a trademark dispute with a third party did not preclude this suit. The prior suit involved a different mark, “Americash,” and Americash Loans did not allege that AOV was acting as an agent of the third party involved in the earlier settlement when it allegedly used the infringing marks.

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Here are several items that I have been holding to fit into posts, but that do not warrant a separate post:

• The list of regional IP blogs keeps growing.  Here are a few recent additions, as well as some general IP blogs.  I will do an update of my regional blog list soon:
  
  
  • Delaware Patent Litigation Report* by lawyers at Morris James.  This is not technically a new blog, but it is a significant redesign and a blog you should be reading if you practice patent law in the District of Delaware.
     
  • ITC 337 Law Blog by lawyers at Oblon Spivak.  This is not a regional blog, but it is at least a niche IP blog and it covers a venue that has been a glaring omission in the legal blog world;
     
  • Patent Law Insights* by Rajiv Sarathy of Perkins Coie.  Again not a regional blog, but Sarathy is putting up good content and his posting appears to be getting more frequent.
     
  • Virginia IP Law* by lawyers at Troutman Sanders.  This is a true regional IP blog, and it looks like a great addition to the club.
     
• At his IP Think Tank blog, Duncan Bucknell explains when you would not want to register your trademarks -- click here to read the post.  Bucknell makes good points, but it is also worth the read just to see a lawyer advocate against legal protection in a written document, that is not something you will see often.
   
• Blawg Review #212 (click here to read it) is up at Current Trends in Copyright, Trademark & Entertainment Law.  It is written around the country song “You Never Even Call Me By My Name” a/k/a “You Don’t Have To Call Me Darlin,’ Darlin’” (click to watch the video).  In honor of INTA being held this week in Seattle, there is a lot of IP-related content.

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Earlier this week, the Northern District announced a court-wide Early Settlement Conference Program focused on reducing costs for litigants where there is potential for early settlement.  The program was generated by the Northern District magistrate judges, in particular Judge Denlow.  The plan provides that at the outset of a case, a judge can send plaintiff via ECF a "Notice to Plaintiff's Counsel of Early Settlement Program."  That Notice will require plaintiff's counsel to conduct defendant's counsel within fourteen days of receiving the Notice if defense counsel has been identified or within fourteen days of defense counsel filing an appearance, if not.    If all parties are interested in a judicial settlement conference, they will file a "Request for Early Settlement Conference."  The Request will cause a settlement conference to be scheduled before either the judge or an assigned magistrate judge.  Additionally, the parties can file a Request on their own without first receiving a Notice from a judge, if all parties want a judicial settlement conference.

It is great to see that the Northern District is creating a formal process for requesting early settlement conferences.  For the most part, my experience suggest that this program just formalizes the Northern District's standard practices.  But it is still very valuable, especially for litigants that are not as familiar with Northern District custom and practice.

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Niro Scavone's Joe Hosteny recently responded to my John Marshall Review of Intellectual Property article, The Uneven Application of Twombly in Patent Cases: An Argument for Leveling the Playing Field (click here to read it).  In the article, I argued that Twombly's increased pleading standard should be applied to patent cases, but that it was being applied unevenly to patent plaintiffs and defendants.  To fix that, I argued that plaintiffs should be required to identify the asserted claims and the products accused of infringing those claims in their complaints. 

Hosteny responded in his February 2009 IP Today column, the Litigator's Corner -- click here to read it -- contending that increasing pleading standards, in his experience, has either wrongly streamlined cases, where a defendant attempted to limit plaintiff to its original complaint regardless of what discovery later showed, or has increased the cost of discovery when plaintiff was required to move to compel after defendant unreasonably limited the scope of discovery defendant would provide based upon a more detailed complaint.

Hosteny admits his argument is based upon anecdotal evidence, and I do not fault him for that.  As litigators, we constantly rely upon our own anecdotal evidence to make decisions about our cases.  But I do disagree with Hosteny's conclusion.  If the Federal Circuit adopted rules requiring more detailed pleadings, or even if just an individual district court did it, just like with other rules a body of law would be created guiding litigants in future cases.  Over time Hosteny's anecdotal examples would stop recurring as defendants relied upon prior opinions telling them how much discovery beyond the claims was required.  And plaintiffs would learn how long they generally had to amend their complaints to add new claims or products.  So, while increased patent pleading standards might briefly increase the scope of discovery in patent cases, over time increased pleading standards would significantly reduce the cost and scope of patent cases.

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UTStarcom, Inc. v. Starent Networks, Corp., No. 07 C 2582, Slip Op. (N.D. Ill. Apr. 13, 2009) (Bobrick, Ret. J. & Special Master).

Special Master Bobrick, a retired judge, awarded defendant Starent its attorneys fees  related to Starent's efforts to get complete interrogatory responses from plaintiff UTStarcom.  In an earlier opinion (click here for the Blog's related post), the Court denied Starent's request to dismiss plaintiff's trade secret misappropriation claim as a sanction for UTStarcom's incomplete responses, but awarded attorneys fees.  Of particular interest, the Special Master held that block billing was not inappropriate and that block billed entries could be recovered.  Additionally, based in part on UTStarcom's failure to provide its rates as part of a reasonableness analysis, the Special Master held that Starent's rates were not unreasonable, although they may have been more than standard local rates.  The Court also noted that patent cases required special expertise which often commands a premium.  The Special Master did, however, reduce the rates of Starent's law students whom the Special Master noted were neither lawyers nor paralegals.  Finally, the Special Master reduced by one-third the bills for certain time that was added to Starent's Bill of Costs late.

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SRAM Corp. v. Formula S.R.L., No. 06 C 1025 & 07 C 1565, Slip Op. (N.D. Ill. Apr. 3, 2009) (Kocoras, J.).*

Judge Kocoras construed the terms of plaintiff SRAM's patents to components of a hydraulic disc brakes for bicycles.  Of particular interest, the Court construed the following terms:

• "One-piece lever" did not require further construction.  Defendant's proposed construction -- a lever consisting of only one piece -- was unnecessarily limiting.  Furthermore, the use of patent term of art "consisting of" would have "drastic consequences" to the scope of the inventor's protection.  Similarly, defendant's other construction -- only one piece -- was unnecessary.  It did not add anything to the term "one-piece."
   
• "Attached" did not require a direct connection between two components, as proposed by defendant.  Defendant's reliance upon the patent's figures was pertinent, but not dispositive.  In fact, the specification specifically identified an attachment between two components by a third component.  Attached, therefore, meant the connection of two components, whether or not the connection used an intermediate component.

*  I am posting about this decision on the eve of the first Grand Tour of 2009, the Giro d'Italia.  Good luck to Lance Armstrong, Levi Leipheimer, and the American teams, High Road and Slipstream.

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Here are a few stories that do not warrant a full post:

• The mainstream media and the blogosphere are buzzing with predictions of who is on President Obama's shortlist for replacing Justice Souter  The Northern District's Judge Castillo and the Seventh Circuit's Judge Wood are both making many of the lists -- check out one list at the Daily Writ.  Both excellent choices.  Over the weekend, the Chicago Tribune ran a story about a local expectation that someone connected to the University of Chicago would be appointed to the Supreme Court during the Obama presidency.  I also wonder if the Northern District's Judge St. Eve is or should be on some shortlists.
   
• Ronald Slusky is bringing his two-day patent claim drafting seminar to Chicago May 19-20.  Slusky promises to teach "a comprehensive approach to analyzing inventions and capturing them in a sophisticated set of patent claims.  Through this interactive seminar, participants will enhance their skills in a classroom setting."  I have not attended Slusky's seminar myself, so I cannot speak to its value, but it definitely looks interesting.
  
  
• Last week the House held hearings about the Patent Reform Act.  Check out some commentary on the hearings at Patently-O.
   
• I got out of the habit of posting each week's Blawg Review, but last week's was both too good and too unique to pass up.  Blawg Review #209 is up at John Hochfelder's New York Injury Cases Blog (another LexBlog site) -- read it here.  Hochfelder tells the moving story of his father's life, the life of an American hero.   Blawg Review #210 is also available at the China Law Blog -- click here to read it.  It is also an excellent Review based loosely on the 90th anniversary of China's May 4th Movement.

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Today, May 5 from 12:00 until 1:30, the Intellectual Property Law Association of Chicago is hosting a seminar about the Northern District of Illinois's proposed Local Patent Rules.  Click here for my earlier post discussing the highlights and background of the Rules, as well as a link to the Rules themselves.  The seminar will be held in the Chief Judge Holderman's courtroom, 2541.  To register for the event, email Alicia Diaz.

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Chief Judge Holderman recently gave his annual State of the Northern District speech.  In a word, Judge Holderman said that the state of the District is "good."  Here are some of the highlights of the presentation (click here to read the Court's press release):

• Judge Gettleman intends to take senior status May 5 and Judge Coar intends to take senior status August 12.  Additionally, Magistrate Judge Ashman intends to retire later this year.
   
• Combined with the vacancy created when Judge Filip went to the Justice Department, when Judges Gettleman and Coar take senior status there will be three Article III and one magistrate vacancies on the Court.
   
• Civil filings were up 2.7% in 2008 over 2007.  And the Court resolves those disputes quickly.  The Northern District is in the top 10% of district court with its median time of 6.2 months to disposition.
   
• The Court is participating in a pilot program which allows jurors to fill out jury forms and get information about their service online.

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UTStarcom, Inc. v. Starent Networks, Corp., No. 07 C 2582, Slip Op. (N.D. Ill. Jan. 22, 2009) (Bobrick, Ret. J. & Special Master).

Special Master Bobrick, a retired judge, denied defendant Starent's motion to dismiss plaintiff UTSI's trade secret misappropriation claim for repeatedly deficient interrogatory responses related to the claim.  Over the course of a year, UTSI served six responses to the interrogatories at issue based upon various requests by Starent and orders by the Special Master.  After the sixth set of responses, Starent agreed that the answers were sufficient.  Starent, however, requested dismissal of the claim based upon UTStarcom's repeated failure to provide a substantive answer.  UTStarcom responded that dismissal was a drastic remedy that was not warranted because had provided substantive answers and because Starent had not been prejudiced by the delay.  UTStarcom even suggested other remedies like exclusion of late produced evidence.  The Special Master held that it was a close case and that either outcome would be defensible.  The Court however, denied Starent's motion to dismiss but did award attorney's fees for the filing of Starent's motion.

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