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

• Startup guru Guy Kawasaki has started the Alltop project which categorizes blogs by subject matter and aggregates blog content  for each subject on a single page.  The law Alltop site is excellent, although I would suggest adding the Chicago IP Litigation Blog.  It is like having someone else set up and update feed readers for you.  This is how Alltop describes itself:

We help you explore your passions by collecting stories from “all the top” sites on the web. We’ve grouped these collections — ”aggregations” — into individual Alltop sites based on topics such as environment, photography, science, celebrity gossip, fashion, gaming, sports, politics, automobiles, and Macintosh. At each Alltop site, we display the latest five stories from thirty or more sites on a single page — we call this “single-page aggregation.”

• The Patent Appeal Tracer follows patent cases from filing of a Federal Circuit appeal, after many of the regional IP blogs stop following them, until an opinion issues, when Patently-O and others take over.  It is an interesting idea and a well written blog.  As an example of what they do, check out this recent post on the Federal Circuit appeal of Northern District case Ball Aerosol and Specialty Container, Inc. v. Limited Brands, Inc., No. 05 C 3684 (N.D. Ill.) (Der-Yeghiayan, J.) -- click here or here for coverage of the case in the Blog's archives.

[UPDATE]:  The Chicago IP Litigation Blog has been added to Alltop's law page.  Thanks Guy.  Now, if I could just get Kawasakied.

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Ball Aerosol and Specialty Container, Inc. v. Limited Brands, Inc., No. 05 C 3684, 2008 WL 839993 (N.D. Ill. Mar. 27, 2008) (Der-Yeghiayan, J.).

Judge Der-Yeghiayan denied defendants' (collectively "Limited Brands") motion for reconsideration regarding the Court's claim construction opinion and its summary judgment opinions of infringement, validity and damages – click here to read more about those opinions in the Blog's archives. The Court previously construed the claims of plaintiff Ball Aerosol's ("BASC") patent covers a candle tine. The Court granted BASC summary judgment of infringement and validity, pre-KSR. When KSR revised the obviousness standard, the Court sua sponte ordered supplemental briefing regarding obviousness in light of KSR. Based upon that briefing, the Court again granted summary judgment of validity. The Court then granted BASC summary judgment on damages awarding it 20% royalties and finding Limited Brand's infringement willful.

The Court held that its original claim construction, validity and infringement holdings were correct and that Limited Brands had been given ample opportunities to defend itself. The Court also denied Limited Brands' argument that reasonable royalties could not be decided on summary judgment. Limited Brands' Seventh Amendment right to a jury trial regarding damages had not been violated. There is no right to a jury without a material question of fact.

The Court also held that while its initial grant of summary judgment of willfulness was made before the Federal Circuits' decision In Re Seagate, the undisputed facts also warranted summary judgment of willfulness pursuant to Seagate's objective recklessness standard. Limited Brands was aware of BASC's patent both before the suit was filed and before it began making the infringing candle tin. In fact, Limited Brands had extensive discussions with BASC regarding BASC's specifications for candle tins. Furthermore, Limited Brand's main defense – advice of counsel – was negated because Limited Brands did not disclose its opinion by the Court's deadline for doing so.

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Ball Aerosol & Specialty Container, Inc. v. Limited Brands, Inc., No. 05 C 3684, 2007 WL 2570351 (N.D. Ill. Sep. 4, 2007) (Der-Yeghiayan, J.).

Judge Der-Yeghiayan granted plaintiff Ball Aerosol & Specialty Container (“BASC”) summary judgment on the issue of patent damages, held that the case was exceptional and then doubled some of the damages and trebled the remainder. The Court previously construed the claims of BASC’s patent for a candle tin with a cover that can be used as a base and granted plaintiff summary judgment of infringement. In this opinion, the Court weighed the Georgia Pacific factors and held that they warranted a royalty rate of 20%. This rate represented an increase over the 17% rate BASC argued it would have granted in an arms-length negotiation to compensate BASC for the compulsory license. The Court then found that the case was exceptional because, among other reasons, defendants continued selling infringing product after the Court granted summary judgment of infringement. Based on the exceptional case holding, the Court doubled the damages from sales before the Court granted BASC summary judgment of infringement and trebled the damages for all sales after summary judgment.

Summary judgment of damages is a fairly rare occurrence. A quick review of the docket does not suggest that the parties waived their right to a jury. So, the facts in this case must have been very strong.

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