This analysis is being cross-posted at my [Chicago IP Litigation blog/Retail Patent Litigation blog]. Lex Machina recently published its comprehensive 2017 patent litigation year in review. As usual, it is full of fascinating data and charts, which I commend for your consideration. Most of us in the space know the biggest takeaways already — patent … Continue Reading
While the rest of the country saw a year-over-year drop in patent cases during 2016, the Northern District saw an increase. According to the excellent data from Docket Navigator, the Northern District’s share of patent cases nearly doubled from 2.8% in 2015 to 5.3% in 2016. In a number of cases, the Northern District moved … Continue Reading
The Northern District has the highest grant rate for stays pending Inter Partes Review (“IPR”), Covered Business Method Review (“CBM”) and Post-Grant Review (“PGR”) of any of the biggest patent districts nationwide – 72.7%. According to Docket Navigator’s excellent data, through 2016 the Northern District fully granted 59.1% of stay motions and partially granted another … Continue Reading
This recent RPX report tells retailers what you likely already knew anecdotally – NPE cases are back. Patent litigation filings in the first half of 2015 are close to 2013 levels. As you are likely aware, this is in stark contrast to the large drops in 2014 filings. The 2014 drop was largely explained by … Continue Reading
Magna Carta Holdings, LLC v. Nextgen Healthcare Information Sys., Inc., No. 08 C 7406, Slip Op. (N.D. Ill. Mar. 9, 2012) (Kendall, J.). Judge Kendall construed a key term in this patent litigation – the Comparator Term – after the parties each acknowledged that the Comparator Term’s construction would likely resolve the case. The Court … Continue Reading
I have run across a couple of items that fall outside of the Blog's Northern District IP focus, but that are useful for all of us focused on resolving IP disputes in the courts:
An Idaho Business Review* article about a patent trial between Rambus and Micron reminded me of the importance of viewing trial proceedings through the eyes of the jury. The reporter explained that after a week and a half of proceedings, much of them under seal, the Court has issued an order requiring that the jury be provided daily refreshments paid for by the United States. That was the extent of what the reporter knew about the proceedings. Of course, the Court likely decided numerous complex issues during the week and a half, but all the reporter, and likely the jury, saw was mysterious and sometimes frustrating delay. Lawyers often forget how juries see repeated sidebars and morning or mid-day motion hearings. Do your best to fill in or at least explain the gaps and delays for your jury, otherwise they will do it themselves.
Patent Troll Tracker identified this blog by E.D. Texas patent defendant Desire2Learn chronicling its ongoing patent infringement trial. This is dangerous territory for a litigant, but it could be a fascinating look at the trial process from the corporate litigant's vantage point.
* Why do I read the Idaho Business Review? I don't. I found the article through the wonders of RSS feeds and content searches. Thank you Kevin O'Keefe and LexBlog for teaching me the power of RSS.
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According to the Boston Globe, the Boston Patent Law Association ("BPLA"), headed by Boston attorney Lee Carl Bromberg, is trying to make the District of Massachusetts the next hot patent court. The BPLA is working to create patent rules for D. Mass. and case deadlines similar to those found in "rocket dockets" like E.D. Texas, W.D. Wis. and E.D. Va. Bromberg also touts the intelligent judiciary in Boston as a reason D. Mass. should be the next patent court.
I am all for districts adopting patent rules. Regardless of their specific content, the certainty of patent-specific rules for claim construction and the exchange of infringement and invalidity contentions benefits all parties. Local rules also save the expense of the numerous discovery motions parties often use to resolve these issues in the absence of local rules. But I think what matters most, is getting a judge that is interested in or at least willing to tackle a patent case. Judge Ward's interest in patent cases (and now the interests of his E.D. Texas colleagues) is really what made the E.D. Texas a patent hot-bed, his local rules were just an off-shoot of that. Similarly, the chief reason that the Northern District is a top five patent district is that there are a critical mass of judges that have taken an interest in patent cases. And although the Northern District lacks patent local rules, the judges that seem to preside over the most patent cases tend to have set or preferred procedures for patent cases that take the place of broader patent-specific rules. For example, Judge St. Eve has a standing order setting a claim construction schedule.
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Statistics compiled by the Patent Troll Tracker* blog show that the Northern District continues to play a prominent role in deciding the nation's patent disputes and, as a result, its IP disputes more generally. Filings of patent cases for 2007 (through the end of July), show that the Northern District had the fourth most patent filings:
2007 Patent Filings (through July) District Cases Defendants
E.D. Texas 202 705
C.D. Cal. 148 329
D.N.J. 98 169
N.D. Ill. 81 163
N.D. Cal. 78 156
D. Del. 75 199
S.D.N.Y. 67 167
Another interesting statistic from this data: with the exception of the E.D. Texas, all of the districts have a rough average of two to three defendants per case. E.D. Texas averages about three and a half defendants per case. I would have expected that E.D. Texas would average closer to five to ten defendants per case. Perhaps all of the large patent licensing company cases that garner so much attention in Marshall are balanced by disputes between individual parties.
If readers are interested in these statistics, let me know and I will compile my own data and make it a regular (maybe quarterly) feature.
* I appreciate the Patent Troll Tracker's statistics and even the effort he performs keeping track of cases filed by patent licensing companies, but as I have explained before I am no fan of name calling (by either plaintiffs' or defendants' counsel). As such, I prefer the neutral term "patent licensing company."
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Rembrandt Techs., LP v. Comcast Corp., No. 07 C 1010, 2007 WL 1598003 (N.D. Ill. Apr. 25, 2007) (Moran, J.).
Judge Moran granted defendants' motion to compel documents from third party Zenith Electronics Corp. ("Zenith"), but restricted access to the documents by plaintiff, Rembrandt Technologies' ("Rembrandt") inhouse counsel. In the underlying action, E.D. Texas Case No. 05 C 443, Rembrandt alleged that defendants infringed its patents. Zenith was identified as a leading licensor of Rembrandt's technology. So, defendants subpoenaed Zenith to determine what Zenith paid for its license. Zenith essentially agreed to produce the documents pursuant to the subpoena, but wanted to restrict access to the documents so that no party's inhouse counsel received access. Defendants agreed to the restriction, but Rembrandt argued that its chief patent counsel, John Meli, was a chief decisionmaker in the case and, therefore, required access to the documents. The Court acknowledged that Meli was a decisionmaker in the case and noted that the Texas court's protective order allowed Meli access to highly confidential documents. Therefore, the Court granted Meli access to any license agreements produced by Zenith pursuant to the subpoena. But the Court denied Meli access to any other documents produced by Zenith.
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Cummins-Allison Corp. v. Glory Ltd., No. 02 C 7008 (N.D. Ill. Apr. 25, 2007) (Posner, J.). Judge Posner, sitting by designation, entered an order dismissing all claim and counterclaims without prejudice and terminating the case, on what appeared to be near the eve of trial. The parties filed a Stipulated Dismissal earlier in the month. … Continue Reading
According to this Law.com article, effective May 1st the Northern District of Texas, based in Dallas, has instituted local patent rules similar to those used in the more famous (at least in patent circles) Eastern District of Texas, which were modeled after the Northern District of California’s Local Patent Rules. Additionally, the Southern District of Texas, … Continue Reading