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Tag Archives: Lefkow

Improper Inventorship Case Transferred Because of Improper Venue

Posted in Claim Construction

Hester v. j2Global Comm., Inc., No. 13 C 6143, Slip Op. (N.D. Ill. Sep. 19, 2014) (Lefkow, J.).

Judge Lefkow held that venue was improper in this patent inventorship dispute, but instead of dismissing, transferred the case to the N.D. Georgia.  The Court lacked venue because:

  • At least one defendant did not reside in Illinois; and
  • The events giving rise to the claim did not happen in Illinois.  Furthermore, the location of the patent was not relevant, and even if it were, there was no evidence that the patent resided in Illinois.

Because the Northern District was not a proper venue and because the parties agreed that N.D. Georgia was a proper venue, the Court transferred the case to the N.D. Georgia.

Pre-Trial Consolidation of Patent Cases is Within the Court’s Discretion

Posted in Federal Rules

Unified Messaging Sols., LLC v. United Online, Inc., MDL No. 2371, Slip Op. (N.D. Ill. May 3, 2013) (Lefkow, J.).

Judge Lefkow denied defendants’ United Online, Juno Online Services, Netzero and Memory Lane (collectively “UOL Defendants”) motion to deconsolidate their case from this earlier consolidated patent litigation.  The Judicial Panel for Multidistrict Litigation transferred the earlier filed cases to the Court for pre-trial proceedings and ordered that any “tag-along actions” be transferred to the Court.  The Court then entered an order providing that any future tag-along actions would be consolidated for pre-trial purposes.  The Court also entered a scheduling order which required the consolidated defendants to file certain papers jointly, but providing them enlarged limits for those filings.

Being required to file a joint claim construction brief, particularly with the increased page limits, did not violate the UOL Defendants’ due process rights.  The defendants were given increased page limits to assure they had sufficient space to make any necessary arguments.  Additionally, the UOL Defendants had not even yet been included in the earlier created schedule. 

Additionally, the joint briefing and claim construction hearing did not violate the UOL Defendants’ rights to brief unique issues concerning their respective accused technologies.  Claim construction focuses upon the intrinsic evidence surrounding the patents, not the accused technologies. 

While the JPML did not require pre-trial consolidation, Fed. R. Civ. P. 42 allowed the Court to consolidate the actions based upon their common questions of law and fact.  And by returning each case to its home district for trial, many of the UOL Defendants’ concerned are minimized.  The fact that the Court ordered consolidation of tag-along actions before the case against the UOL Defendants was filed was irrelevant.

Finally, pre-trial consolidation did not violate the AIA’s anti-joinder provision, 35 U.S.C. § 299, as the JPML had already held.

Arguments Disclosed in Summary Judgment are Preserved

Posted in Discovery

CBOE v. ISE, No. 07 C 623, Slip Op. (N.D. Ill. Mar. 6, 2013) (Lefkow, J.).

Judge Lefkow granted in part plaintiff CBOE’s motion to strike defendant ISE’s expert witness in this patent case, as follows:

  • This case was not governed by the Local Patent Rules (“LPR”) because it was filed before the LPR became effective.
  • Although ISE’s interrogatories did not specifically identify its doctrine of equivalents theory, ISE sufficiently disclosed its theory as to claims 4, 35 and 36 during discovery, including in ISE’s summary judgment motion.
  • ISE did not sufficiently disclose its doctrine of equivalents argument as to claim 56.
  • CBOE was not prejudiced as to claims 4, 35 and 36 because the arguments were disclosed at least at summary judgment.
  • CBOE was prejudiced by ISE’s failure to disclose it argument as to claim 56.  ISE’s doctrine of equivalents argument as to claim 56 was, therefore, struck.
  • ISE had sufficiently disclosed its commercial success arguments by disclosing its product and the nexus between the patent and the product.  ISE identified its argument as early as its initial discovery responses.


Claim Construction Reconsidered in Motion in Limine

Posted in Trial

CBOE v. ISE, No. 07 C 623, Slip Op. (N.D. Ill. Mar. 6, 2013) (Lefkow, J.).

Judge Lefkow considered defendant ISE’s arguments that the Court’s construction of “means for matching” was incomplete because it did not define an algorithm as part of the structure for the means plus function term.  The Court held that there was a fact question as to whether pro rata allegation “was” sufficiently simple that anyone skilled in programming could create a software program for the function . . .”  The Court, therefore, decided to hear evidence before ruling.

Expert May Not Opine on Claim Construction at Trial

Posted in Trial

CBOE v. ISE, No. 07 C 623, Slip Op. (N.D. Ill. Mar. 6, 2013) (Lefkow, J.).

Judge Lefkow granted defendant ISE’s motion to exclude plaintiff CBOE’s evidence of non-infringing alternatives from the lost profits analysis in this patent case.  The identified alternative was never in use during the alleged infringement.  And CBOE offered only conclusory evidence that the alternative was available at the relevant time.  The Court denied ISE’s motion to exclude CBOE’s expert.  The expert’s experience with SEC regulations and rulemaking were sufficient to allow him to opine that CBOEdirect was not an “automated exchange.”  The expert was not, however, allowed to opine on claim construction issues because that was not the proper subject matter of expert testimony.

Enablement Not Required for Each Obviousness Reference

Posted in Trial

CBOE v. ISE, No. 07 C 623, Slip Op. (N.D. Ill. Mar. 6, 2013) (Lefkow, J.).

Judge Lefkow granted plaintiff CBOE’s motion in limine excluding argument that § 103 obviousness references must each be enabling in this patent case.  Furthermore, the Court limited defendant ISE’s enablement arguments to those specifically called out in ISE’s expert’s report.

Weight of the Evidence Cannot be Decided in Motion in Limine

Posted in Trial

CBOE v. ISE, No. 07 C 623, Slip Op. (N.D. Ill. Mar. 6, 2013) (Lefkow, J.).

Judge Lefkow granted in part plaintiff CBOE’s motion in limine to exclude defendant ISE from introducing evidence of secondary consideration of nonobviousness in this patent case.

Commercial Success:

Whether ISE had shown a nexus between its products and the claim elements was not proper for a motion in limine.


ISE introduced evidence of copying beyond its infringement contentions.  Weighing the evidence was a matter for the jury.

Failure of Others:

ISE identified 73 failed exchanges.  Whether the failures had a sufficient nexus to the claims is an issue for the jury.

Long Felt Need:

Again, whether ISE’s evidence of long felt need has a sufficient nexus with the claims is a jury question.

Teaching Away:

ISE’s expert sufficiently cited to evidence of teaching away to allow his testimony to go to the jury.

Expert Testimony Required for one Infringement Issue

Posted in Trial

CBOE v. ISE, No. 07 C 623, Slip Op. (N.D. Ill. Mar. 6, 2013) (Lefkow, J.).

Judge Lefkow granted plaintiff CBOE’s motion in limine limiting defendant ISE’s expert testimony consistent with prior rulings regarding the scope of evidence in this patent case.  The expert was allowed to testify regarding alleged infringement by CBOE’s accused CBOEdirect system.  The Court also noted that there would be a “failure of proof” if some expert did not testify that Hybrid’s “rule-based order routing algorithm” did not include matching or allocating through open outcry.

Admissions Related to Claim Construction Limit Trial Evidence

Posted in Trial

CBOE v. ISE, No. 07 C 623, Slip Op. (N.D. Ill. Mar. 6, 2013) (Lefkow, J.).

Judge Lefkow granted in part CBOE’s motion in limine to limit ISE’s infringement argument at trial in this patent case.  The issue for trial was whether CBOE’s Hybrid system was “merely two independent exchanges” or an integrated system.  ISE could, therefore, offer evidence that CBOEdirect contains elements of the asserted claims.  But ISE could not argue that CBOEdirect alone infringes based upon ISE’s admissions to the contrary in seeking reconsideration of the Court’s claim construction.

Rule 11 Sanctions for Failing to Purchase the Accused Product

Posted in Trial

Smart Options, LLC c. Jump Rope, Inc., No. 12 C 2498, Slip Op. (N.D. Ill. Feb. 11, 2013) (St. Eve, J.).

Judge St. Eve granted defendant Jump Rope’s Fed. R. Civ. P. 11 motion for sanctions in this patent case.  The Court previously granted Jump Rope summary judgment of noninfringement and plaintiff Smart Options appealed to the Federal Circuit.  As an initial matter, the Court held that while Smart Options’ notice of appeal divested the Court of jurisdiction generally, the Court retained jurisdiction over Jump Rope’s Rule 11 motion.

The Court previously held that Jump Rope did not infringe because it did not sell options to purchase items at a later date.  Instead, Jump Rope sold the immediate ability to go to the front of a line for an event or location.  Smart Options could have ascertained that inexpensively by downloading Jump Rope’s free app and purchasing a jump.  Instead, Smart Options provided generalized descriptions of it investigations, including reviewing Jump Rope’s website Terms of Use.  And Smart Options’ patent claims require paying an “option fee” to acquire an “option” to purchase something.  Furthermore, faced with Jump Rope’s explanation that it did not infringe at the outset of the case via Jump Rope’s Rule 11 motion, Smart Options continued to prosecute its case and still did not buy a “jump.”

Smart Options’ reliance upon Judge Lefkow’s constructions in a similar case did not protect Smart Options.  Lefkow did not construe “option.”  And the construction of “option” Smart Options allegedly used as part of its Rule 11 investigations was inexplicably different than the construction Smart Options advanced before the PTO and before Judge Lefkow.

The Court, therefore, granted Jump Rope’s Rule 11 motion and awarded Jump Rope its reasonable attorney’s fees and costs for defending the case and for the Rule 11 motion giving Jump Rope leave to file a petition setting out and supporting its fees and costs.


Forum Selection Clause Creates Jurisdiction

Posted in Jurisdiction

Flava Works, Inc. v. Rowader, No. 12 C 7181, Slip Op. (N.D. Ill. Nov. 16, 2012) (Lefkow, J.).

Judge Lefkow denied defendant’s Fed. R. Civ. P. 12(b)(2) motion to dismiss plaintiff Flava Works copyright suit for lack of jurisdiction and improper venue.  Defendant - a California citizen who did not direct any business at Illinois - would not have been subject to general or personal jurisdiction in Illinois.  But defendant accepted a valid forum selection clause including  Chicago by using Flava Works’ website.  While it could be considered an un-negotiable contract of adhesion, defendant could have used another website with a different forum selection clause.

Court Grants Time-Limited Reexam Stay

Posted in Local Rules

Cascades Computer Innovations, LLC v. SK hynix, Inc., No. 11 C 4356, Slip Op. (N.D. Ill. May 25, 2012) (Lefkow, J.).

Judge Lefkow granted a sixteen month stay of this patent case pending defendants’ inter partes reexamination of the patent in suit.  The Court originally denied an unbounded stay.  But the Court held that a more limited sixteen month stay would simplify the issues in the case because the sole asserted claim was part of the reexam.  Furthermore, a sixteen month stay would not prejudice plaintiff Cascades Computer Innovation.

Preliminary Injunction Not Warranted for Unenforceable Non-Compete Clause

Posted in Legal News

Peerless Indus., Inc. v. Crimson AV, LLC, No. 11 C 1768, Slip Op. (N.D. Ill. Jun. 10, 2011) (Lefkow, J.).

Judge Lefkow denied plaintiff Peerless’ motion for a preliminary injunction in this patent and tortious interference case involving audio-visual mount equipment. Peerless had a manufacturing agreement with Sycamore Manufacturing ("Sycamore") which was terminated no later than March 2010. The agreement included a non-compete clause that prevented Sycamore from selling the products it made for Peerless or any similar products, with a very broad definition of similarity. After the March 2010 termination and before the end of the non-compete term, in March 2011, Sycamore began selling similar products to defendant Crimson. The Court held that Peerless had "negligible" likelihood of success because the non-compete clause was likely unenforceable because it was broader than necessary to protect Peerless’ interests. The scope of similar products was far too broad. The scope should have been limited to substantially similar products. Additionally, the definition of similar products was "unworkably difficult to determine."

Peerless also could not show irreparable harm. As an initial matter, the non-compete term had ended before the date this Opinion issued. An injunction barring Crimson from selling product the agreement now allowed it to sell would have improperly extended the term of the non-compete. Additionally, because the alleged unauthorized sales were complete, the damages were readily quantifiable.

False Marking Case Transferred to District Where Defendant Already Faces Four False Marking Cases

Posted in Jurisdiction

Heathcote Holdings Corp. v. L’Oreal USA, Inc., No. 11 C 1921, Slip Op. (N.D. Ill. Aug. 9, 2011) (Lefkow, J.).

Judge Lefkow granted defendant L’Oreal’s motion to transfer plaintiff’s false patent marking case involving boxes of hair dye to the S.D. New York, L’Oreal’s home district. Generally, plaintiff’s Heathcote’s choice of forum would be given deference, but in false marking cases the United States is the real party in interest. So, the qui tam plaintiff’s chosen forum is given little deference. The situs of material events was New York, where the accused packaging was designed and where the relevant employees reside. L’Oreal’s witnesses and documents were more likely in New York than Illinois.

The convenience of the parties also weighed in favor of New York. Heathcote did not identify any employees that would have to travel to New York for the case, whereas L’Oreal’s relevant employees were in New York. Furthermore, Heathcote’s only business was litigation and therefore the travel would not distract Heathcote from its business.

The interests of justice weighed in favor of transfer. There were already four false marking cases against L’Oreal or its subsidiaries that had been transferred to the S.D. New York. And the potential consolidation of those cases would benefit the parties and judicial economy.

Northern District of Illinois Patent Program Begins

Posted in Legal News

The patent pilot program started this month in the Northern District and across the country.  The pilot program is a ten-year look at ways to handle patent cases more effectively.  The main component of the pilot program is judges in pilot districts, including the Northern District, self-selecting as patent judges.  Patent cases will continue to be randomly assigned to all Northern District judges.  But when a non-patent judge is assigned a patent case that judge will have thirty days to order reassignment of the case.  When reassignment is ordered, the case will be randomly reassigned to one of the patent judges.  There will also be patent-related education and programs offered for the patent judges across the country. 

One unanswered question about the pilot program remains:  If a non-patent judge was assigned a patent case less than thirty days before the program kicked off on September 19, can the non-patent judge order the patent case reassigned pursuant to the pilot program?  I have not seen it happen yet, but I suspect it could over the next week or two.

The Northern District issued the following list of judges who have self-selected as patent judges:

  • Chief Judge James F. Holderman

  • Judge Ruben Castillo
  • Judge John W. Darrah
  • Judge Gary S. Feinerman
  • Judge Virginia Kendall
  • Judge Matthew F. Kennelly
  • Judge Joan Humphrey Lefkow
  • Judge Rebecca R. Pallmeyer
  • Judge Amy J. St. Eve
  • Judge James B. Zagel
  • Federal Counterclaim Cannot Create Original Jurisdiction

    Posted in Jurisdiction

    First Step Child Care Center, Inc. v. KASI Designs, Inc., No. 10 C 7372, Slip Op. (N.D. Ill. Mar. 24, 2011) (Lefkow, J.).

    Judge Lefkow remanded plaintiff’s state claims involving the building of a child care center to state court. Defendant removed the case from state court alleging that it would bring copyright counterclaims. But defendant never asserted its counterclaims, and even if it had counterclaims cannot create original jurisdiction.

    Court Enters Preliminary Injunction as to Plaintiff’s “Lettuce” Marks

    Posted in Legal News

    Lettuce Entertain You Enters., Inc. v. Leila Sophie AR, LLC, No. 09 CV 2582, Slip. Op. (N.D. Ill. Feb. 26, 2010), (Lefkow, J.). 

    Judge Lefkow granted plaintiff Lettuce Entertain You ("LEYE") a preliminary injunction against defendants’ use of the name "Lettuce Mix" in their salad bar restaurant in Lincoln Park. LEYE argued that the defendants’ "Lettuce Mix" name would infringe its family of "Lettuce" marks for use in restaurant services.

    Likelihood of Success


    LEYE’s Lettuce marks were not generic as used for restaurant services. While some of LEYE’s meals included lettuce, LEYE was not in the business of lettuce sales. And defendant’s intent to use its Lettuce Mix name was sufficient for use in commerce.


    The Court held there was a likelihood of confusion. Both parties marks focus upon "lettuce" and use it as a pun for "let us." This is true even though LEYE’s logo, which includes a waiter opening a covered a dish was different from defendant’s logo. Additionally the parties’ services in the restaurant industry were similar.


    Both parties used the marks in the same area and manner. They directly compete for restaurant customers, and at least one of LEYE’S 70 restaurants is within one mile of Lettuce Mix. To the extent both parties cater to patrons seeking inexpensive, casual meals, the patrons are assumed to use a lesser degree of care, even though some of LEYE’s restaurants are more expensive.

    LEYE’s family of Lettuce markers was strong, and defendants’ argument to the contrary was their genericness argument that the Court previously denied.


    LEYE, however, did not provide evidence of actual confusion, although actual confusion is not required. And there was no evidence that defendants intended to pass themselves off as affiliated with LEYE. Finally, defendants’ was not a fair use because lettuce was not descriptive of their service.


    Irreparable Harm

    Trademark infringements are presumed to result in irreparable harm. LEYE would, therefore, have been irreparably harmed by any trademark infringement from defendants.


    Balancing Harm

    Defendants would not suffer significant harm from the injunction given that they had already stopped using the allegedly infringing name. And any loss of defendants’ goodwill would be attributable to their own actions.


    Public Interest

    The public interest would not be harmed by the preliminary injunction. Enforcement of trademarks serves the public good, and LEYE had shown a "substantial" likelihood of confusion.

    President Obama Makes Northern District of Illinois & IP Nominations

    Posted in Legal News

    President Obama announced a couple of nominations this week impacting the Northern District of Illinois and the national patent bar.

    First, President Obama appointed WilmerHale partner Edward DuMont to the Federal Circuit.  DuMont clerked for the Seventh Circuit’s Judge Posner and was an Assistant to the Solicitor General where he briefed and argued Supreme Court cases.  DuMont currently has an appellate practice with a considerable focus on patent and intellectual property issues (click here for DuMont’s firm bio).  DuMont also spent a year working for a law firm in Bangkok, Thailand.  DuMont’s Supreme Court and varied appellate experience make him a very interesting choice to take Judge Michel’s place on the Federal Circuit bench.

    Second, President Obama has nominated the Northern District’s Deputy U.S. Marshall Senior Inspector Darryl McPherson to become the Northern District’s next U.S. Marshall.  McPherson has served as a Deputy U.S. Marshall since 1999 and won a Special Recognition award for his service as lead Deputy Marshall for Judge Lefkow. 

    Both nomination must be confirmed by a vote of the U.S. Senate. 

    Location of Family Major Factoring in Determining Citizenship

    Posted in Jurisdiction

    24 Hour Fitness USA, Inc. v. Bally Total Fitness Holding Corp., No. 08 C 3853, 2008 WL 4671748 (N.D. Ill. Oct. 21, 2008).

    Judge Lefkow granted defendants’ Fed. R. Civ. P. 12(b)(1) motion to dismiss plaintiff 24 Hour Fitness’s (“24”) trade secret misappropriation complaint for lack of subject matter jurisdiction. 24 alleged that defendant Bally Total Fitness (“Bally) and the individual defendant (“Defendant”) misappropriated 24’s trade secrets when Defendant resigned his position as 24’s COO and became Bally’s CEO. But defendants argued that the Court lacked subject matter jurisdiction over 24’s state law trade secret claims because there was no diversity of citizenship – both 24 and Defendant were California citizens. 24 argued that Defendant was, in fact, a citizen of Illinois because he worked at Bally’s Illinois headquarters and because Defendant’s contract with Bally required that he move to Illinois before the case was filed.

    Looking at the totality of the circumstances, the Court held that Defendant remained a citizen of California, where he had lived while employed by 24. Defendant had put his California home for sale and did have a contract requiring that he become domiciled in Illinois, although the particulars of the contract were disputed. But the most significant factor in the analysis was that Defendant’s family remained in California. And Defendant had not purchased or rented a home in Illinois or gotten an Illinois driver’s license, bank account or voter registration card.

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    Seventh Circuit American Jury Project

    Posted in Trial

    The Seventh Circuit instituted a Commission to study the implementation of the ABA Jury Project.  The Northern District was heavily represented on the Commission.  The following Northern District Judges were members of the Commission:  Bucklo, Brown, Coar, Darrah, Denlow, Der-Yeghiayan, Gottschall, Holderman, Kennelly, Lefkow, Moran, Schenkier, St. Eve, and Zagel.  The Commission recently published its report — click here to read it.  The report describes a two phase analysis.  In the first phase, district judges tested the following seven ABA Principles:

    1.       Twelve-Person Juries;


    2.       Jury Selection Questionnaires;


    3.       Preliminary Substantive Jury Instructions;


    4.       Trial Time Limits;


    5.       Juror Questions;


    6.       Interim Trial Statements by Counsel; and


    7.       Enhanced Jury Deliberations.

    Other Principles, such as juror notebooks and allowing jurors to take notes, were already in such widespread use that they were not tested.  Click here for the Phase One Project manual detailing the principles, the rationales and authority behind them, and suggested procedures.  Phase One resulted in questionnaires from 22 participating federal trial judges, 74 participating attorneys and 303 jurors from 38 trials that used one or more of the seven Principles.  Based upon the analysis of Phase One results and questionnaires, the Commission focused Phase Two on the following four Principles:

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    Jurisdiction: Amount in Controversy Must be Tied to Alleged Wrongs

    Posted in Jurisdiction

    Integrated Genomics, Inc. Kyrsides, No. 06 C 6706, 2008 WL 63065 (N.D. Ill. Mar. 4, 2008) (Lefkow, J.).

    Judge Lefkow dismissed defendant Ivanova for lack of subject matter jurisdiction, held that the Court had subject matter jurisdiction over defendant Kyrsides, and denied defendants’ Fed. R. Civ. P. 12(b)(6) motion to dismiss plaintiff’s claims based upon preemption. Plaintiff alleged that defendants’ breached their non-compete agreements and otherwise named plaintiff when defendants resigned from plaintiff, where they worked with genome software, and joined plaintiff’s competitor in similar roles. Defendants each argued that plaintiff had not sufficiently pled diversity jurisdiction because plaintiff had not shown that $75,000 or more was in controversy. In response, plaintiff alleged that they lost customers to defendants’ new employer after defendants resigned. But that was insufficient because plaintiff did not allege that defendants were responsible for, or the cause of, those lost customers. The Court, therefore, dismissed defendant Ivanova. But for Kyrisides, plaintiff also relied upon an email sent from Kyrsides to plaintiff’s employees explaining Krysides’s view that his resignation cost plaintiff a very large number of contracts. Kyrsides statements were sufficient proof that the amount in controversy exceeded $75,000.

    The Court held that a motion to dismiss was not the appropriate vehicle for deciding the scope of the relevant non-compete agreements. The scope of a non-compete was fact-intensive and best determined after additional discovery.

    Finally, the Court held that plaintiff’s claims were not preempted by the Illinois Trade Secret Act ("ITSA"). While the claims could encompass trade secret information, they were based upon the broader category of confidential information. Because the claims were potentially broader than trade secrets, they were not preempted.

    N.D. Ill. 2008 Joint Trial Call

    Posted in Legal News

    Lanham Act Case Made Exceptional

    Posted in Trial

    Ty, Inc v. Softbelly’s, Inc., No. 00 C 5230, 2007 WL 734394 (N.D. Ill. Mar. 6, 2007) (Lefkow, J.).

    Judge Lefkow granted plaintiff’s, Ty, motion to make the case exception and grant it attorneys’ fees and expenses.  A jury previously returned a verdict against defendant, Softbelly’s, for violations of the Lanham Act and common law unfair competition.  The Court held that the case was exceptional because "Softbelly’s made an aggressive, uncounseled, and persistent endeavor to trade on the success and reputation of Ty’s marks."

    Contract 101: Offer & Acceptance in Copyright Contracts

    Posted in Legal News

    Bergt v. McDougal Littell, No. 06 C 4645, 2006 WL 3782919 (N.D. Ill. Dec. 21, 2006) (Lefkow, J.).

    Judge Lefkow denied defendants’ motion to dismiss plaintiff’s copyright and fraud case which alleged that defendants’ use of plaintiff’s copyrighted painting "Primavera" in textbooks exceeded the number of copies allowed by the parties’ license agreement.  Defendants sent plaintiff, via his agent ("Agent"), a request to use copies of his painting in a run of no more than 40,000 textbooks.  Agent responded shortly thereafter with a document labeled "Invoice" which granted defendants the right to use Primavera in textbooks without specifying any limitations, for example limiting use to the run of 40,000 textbooks as per defendants’ initial request.  Defendants argued that Agent’s letter was a counteroffer which changed the terms of the parties’ license.  But the Court held that defendants’ initial letter, specifying the price and the limited run, was an offer and that Agent’s letter was the acceptance.  The Court reasoned that Agent’s letter did not require a response, suggesting it was an acceptance, and that defendants could not have reasonably believed that Agent was modifying the offer to allow unlimited use of Primavera, instead of a limit of 40,000 copies, without increasing the $200 license fee.

    There is also what appears to be a similar case, although brought by a different plaintiff, addressed in this post.