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

Prominent Consulting LLC v. Allen Bros., Inc., No. 07 C 6357, 2008 WL 373217 (N.D. Ill. Feb. 11, 2008) (Dow, J.).

Judge Dow held that the Court had jurisdiction over plaintiff Prominent Consulting’s (“PC”) copyright claim and denied defendant Allen Brothers’ motion to stay based upon Colorado River abstention. The Court had subject matter jurisdiction over PC’s copyright infringement claim – based on source code PC wrote for Allen Brothers’ websites – because the claim was not controlled solely by the parties’ contract. At least some of PC’s copyrights existed before the parties entered the contract because PC wrote some of the code before signing the contract.

The case appeared ripe for Colorado River abstention: the parties were involved in state court proceedings paralleling the federal case; both cases arose out of the parties’ website-related agreement; and PC’s available relief was identical in each case because PC’s late federal registration prevents statutory copyright damages. But the Court’s exclusive jurisdiction over the copyright claim prevented abstention. The Court cited Colorado River for the proposition that district courts lack discretion to stay cases involving exclusively federal claims.

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Trading Techs. Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312, Min. Orders (N.D. Ill. Jan. 3, 2007) (Moran, Sen. J.).*

In addition to the willfulness decision discussed earlier today (click here for the post) and the invalidity decision that I will blog about early next week, Judge Moran also issued two minute orders deciding several of the outstanding post-trial motions.  The Court denied defendant eSpeed's motion for a new trial and its combined motion for judgment as a matter of law that: 1) the claims are invalid because of anticipation, obviousness, prior sale; and 2) because the claims have a June 9, 2000 priority date they were not infringed.

There are still several pending motions, including various motions regarding damages and interest on the jury's award and eSpeed's motion for an evidentiary hearing regarding inequitable conduct.  I will keep you posted as those are decided.

*  Click here to read much more about this case in the Blog’s archives.

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Konvin Assocs. V. Extech/Exterior Techs., No. 04 C 2544, 2006 WL 2460589 (N.D. Ill. Aug. 21, 2006) (Kennelly, J.).

In this opinion, Judge Kennelly ruled on opposing summary judgment motions arguing invalidity and infringement issues.  As an initial matter, the Court refused to exclude opposing expert affidavits despite the fact that neither expert was disclosed as required by Rule 26(a)(2)(A).  The Court held that Rule 37(c) does not allow striking evidence based upon Rule 26(a) violations where the violation is harmless.  Because neither party argued that they were harmed by the failure to disclose the experts, the Court refused to exclude the expert affidavits.  The Court went on to deal with numerous invalidity and infringement issues, but I will focus on one more expert testimony issue.

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