I have made it a practice not to immediately blog about big Supreme Court cases. While there is a rush to be the first to publish, I have found that there is a significant difference in the value between immediate analysis and analysis after people take a breath and think about the implications of the
Eastern District of Texas
America Invents Act: The More Things Change, the More They Stay the Same
The following article was written for my Retail Patent Litigation Blog, and it is just as relevant for Chicago readers. So, I am reprinting it here with minor, Chicago-specific revisions.
BNA has an interesting article by James Pistorino of Perkins Coie and Susan Crane looking at the impact of the America Invents Act (“AIA”)…
New Model Patent Jury Instructions
At the request of Federal Circuit Chief Judge Michel, an all-star panel was established to create a comprehensive set of model patent jury instructions — click here to download them. The panel included patent litigation heavy weights like Don Dunner and federal judges — Judges Ward (E.D. Texas) and Whyte (N.D. Cal.). The Federal Circuit has not officially endorsed the jury instructions, but they are very comprehensive and deal with just about every recent case law development. In particular, they provide an excellent glossary of patent terms for the jury (something that should be in every set of patent jury instructions, but often is not) and they provide two KSR obviousness instructions, one for if the jury is making the final determination and one if the judge does (the panel could not come to a consensus on what the correct reading of the law was).
The one instruction I had hoped to see that was missing was an instruction for awarding royalties on post-verdict sales — see the MTTLR Blog on the issue here or read commentary on Judge Clark’s plan to submit post-verdict damages to the jury here at Michael Smith’s E.D. Texas blog. If anyone has seen an instruction for post-verdict damages, send it to me and I will post it for all to consider.
You can also read more about patent jury instructions in the Blog’s archives — click here for the Seventh Circuit’s model patent jury instructions and here for a list of jury instructions Northern District judges have offered as precedent in IP cases.
Hat tip to Dennis Crouch for linking to the new model jury instructions here at Patently-O.
Continue Reading New Model Patent Jury Instructions
IP Legal News
Here are several stories worth checking out, but that did not warrant a separate post:
PA Tracer’s monthly patent filings report is out. The Northern District had nine new cases filed in July. That is reasonably busy for the deep summer, but nothing compared to the Eastern District of Texas’s 25 new patent cases — click here to read PA Tracer’s post.
The St. Louis Post-Dispatch ran a story recently about on Judge St. Eve — click here to read it.* The story discusses many traits that are obvious to those who have practiced before her. Judge St. Eve is very punctual and efficient, and she has absolute control of her courtroom, which she maintains with a civility and kindness that are impressive. The article also speculates, using unnamed colleagues and media as sources, that Judge St. Eve will eventually be on Supreme Court short lists. Here’s hoping she stays in the Northern District a long time before getting called up to One First Street.
Chicago Lawyer Magazine did a nice profile on Chicago IP lawyer Carol Genis of Bell, Boyd & Lloyd. Click here to read it. The article largely focuses on how Genis develops strong bonds of trust and friendship with clients.
Duane Valz, Vice President & Associate General Counsel of Yahoo!’s Global Patent Strategy, is discussing approaches for patenting Internet-related ideas in a webinar on Wednesday, September 3 from 1:30 – 3:00 CT — click here for more information.
* Hat tip to the WSJ Law Blog for pointing out the story here.
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Brian Higgins’s Maryland IP Law Blog post about the progeny of In re Seagate, 497 F.3d 1360 (Fed. Cir. 2007), inspired me to do follow up posts identifying Northern District cases discussing recent major IP decisions. The first looks at cases discussing eBay Inc. v. MercExchange, L.L.C., 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). Here they are:*
Black & Decker Inc. v. Robert Bosch Tool Corp., No. 04 C 7955, 2006 WL 3446144 (N.D. Ill. Nov. 29, 2006) (St. Eve, J.). — Granting a permanent injunction in a case between competitors.
Chamberlain Group, Inc. v. Lear Corp., No. 05 C 3449, 2007 WL 1017751 (N.D. Ill. Mar. 30, 2007) (Moran, J.). — Granting a preliminary injunction in a case between competitors and holding that in eBay the Supreme Court limited the automatic presumption of irreparable harm based upon infringement.
For further analysis of post-eBay decisions, check out my post about Michael Smith’s analysis (click here) and my post discussing Ray Nimmer’s thoughts on the potential for compulsory licensing regimes because of eBay (click here).
* A brief note on methodology: this was not a thorough study and does not include cases that granted or denied injunctions without discussion. For a more comprehensive list of decisions nationwide (updated through the end of 2007) go to the Fire of Genius.
Continue Reading Injunctions Post-eBay
Northern District’s 2007 Patent Filings Up 11%
There were 140 patent cases filed in the Northern District during 2007, an 11% increase from the 126 patent cases filed in 2006. This maintains the Northern District’s status as the fifth largest patent district. According to TrollTracker (click here for TrollTracker’s year end filing analysis), the Eastern District of Texas was first with 364 filings, more than 2.5 times the Northern District’s filings. The Central District of California came in a distant second with 272 patent filings, followed by the District of New Jersey at 187, the District of Delaware at 147 and then the Northern District. Of the Northern Districts 140* filings, 49 or 35% were disposed of during 2007.
A list of each case, the case number, the filing date and, where appropriate, the date the case was resolved are provided after the jump. In the next week or two, I will be doing similar posts for trademark and copyright cases filed during 2007.
* TrollTracker reports 137 patent cases. The discrepancy may be explained by several cases filed during the last few days of the year that did not make it to Pacer until after January 1.
Continue Reading Northern District’s 2007 Patent Filings Up 11%
Cummins-Allison & Glory Settle On Eve of Trial
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…