Here are several posts related to IP litigation that are worth a read:
Anne Reed at Deliberations has a fascinating post discussing a study about the differences between city and suburban or rural juries — click here to read it. The study is focused on criminal cases, but it has value for civil juries as well. It is no surprise to anyone involved in trials across the country that city jurors act differently than suburban or rural jurors. But the real message of Reed’s post is that you have to be careful to draw overly strong conclusions about one factor (juror’s home addresses) from a study of a massive, complex system like a trial. The outcomes are also dependent upon the sophistication of the court as to the subject matter and type of law of the case, the volume of the court’s docket, etc. And there might be more important ways to classify jurors. For example, relative wealth and level of education may be more important factors than where they live. But Reed points out that the real value of the study for lawyers, consultants and litigants is that it makes us think about how juries are influenced and challenges our preconceived notions. Reed challenges us to Reed the study and use it as a springboard, instead of as an answer.
At his The Prior Art blog, Joe Mullin has an update on Scott Harris and his patent portfolio, after his settlement with his former firm, Fish & Richardson — click here for the post. Harris and Memory Control Enterprise recently filed a patent infringement suit in the Northern District involving GPS navigation technology. I will post about those cases as opinions and orders are issued.
Here is a useful white paper on taking cross-cultural depositions from the All Language Alliance. Hat tip to Evan Schaeffer at his Illinois Trial Practice Weblog for the link in a post about depositions using interpreters.
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Joe Mullin
Sealing Documents in Federal Courts
Patent Appeal Tracer has run a provocative series of posts discussing the process for and practice of sealing documents in the Eastern District of Texas cases, focused of course on patent disputes. The first post details the procedures as they understand it and questions whether parties should be allowed to file sealed documents without the court’s review — click here to read it.
The second post includes the comments of Michael Smith from his E.D. Texas Weblog — click here to read it. Smith explains that the sealing rules have changed since those quoted by Patent Tracer, but that it is still possible for pre-approval to be granted in cases giving the parties initial control over what is sealed. Smith acknowledges that too much may be filed under seal, but explains that the E.D. Texas Rules Committee is balancing the public right to information with a workable process:
Now the question of whether too much is being filed under seal is a valid one – I’ve seen a couple of cases recently where it seemed everything was under seal, and it wasn’t immediately apparent that anything confidential was involved. But that is definitely the exception in my experience. . . . But I can say that our principal concern, at least on the ED Tex’s rules committee when the issue has come up, was coming up with a mechanism to make filing under seal as easy as possible where the reason for the filing was that confidential documents were attached.
Most recently, Patent Appeals Tracer solicited the views of Joe Mullin who writes for IP Law & Business as well as writing The Prior Art blog — click here for the post. Mullin does not feel qualified to discuss the district to district differences in sealing, but strongly advocates for the importance of public openness in patent disputes and worries that the litigation stakeholders are not representing the public interest (that is likely why you see news agencies appearing in significant cases to advocate unsealing documents and court proceedings):
Sometimes both the plaintiff and defendant share an interest in minimizing public exposure. (or at least believe it’s in their interest; I would argue that a fair, accurate, and complete public record is in everyone’s long-term interest, but of course, I admit to being self-interested in that regard!)
Other times, I suspect defendants want to resolve their own dispute while still making life difficult for other defendants or possible defendants–after all, that’s likely to be the competition. . . .
So there isn’t necessarily anyone looking out for the public interest. Yet, patents have a big public impact on our economy as a whole and on individual consumers. That’s true even though the chain of events from a particular lawsuit to the marketplace can be murky.
I think there is no doubt that Mullin is correct as to the importance of patent cases. Patent litigation has been a significant business issue for some time, and its important continues to increase. For the power of patent litigation in an industry, you can look to the Eastern District of Texas Desire2Learn case cited by Mullin or the Trading Technologies cases here in the Northern District, among many, many others.
But in my experience the district and circuit judges act as the protectors of the public interest. And, at least in the Northern District, the judges largely get it right.* The practice here, as required by the Seventh Circuit, is that there are no blanket rights to file under seal provided in protective orders. Instead, each party must file a motion to seal when proposing to file sealed documents. Additionally, the parties publicly file a carefully redacted version of the sealed documents. And in most protective orders, the parties are required to spell out and justify distinct categories of documents that may be marked confidential. While this system still could be abused, I think it strikes a balance that benefits public access.
The process of filing motions for leave to seal and creating redacted versions of documents can be costly and seem unnecessary in the midst of a long litigation, particularly after a judge has already repeatedly agreed to seal the same information. But it serves to protect the public’s interest in an open system. I think it is a relatively strong system, particularly when supplemented by a third party news media voice on behalf of public openness in significant cases. And my experience litigating in various district courts across the country is that systems like the Northern District’s are becoming the norm. It is increasingly hard to find courts that will grant blanket permission to seal documents, especially without requiring that the public filing of redacted versions.
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ICR v. Fish & Richardson Update: Case Settled
Illinois Computer Research, LLC v. Google Inc., No. 07 C 5081 (N.D. Ill.) (Pallmeyer, J.).
The parties in this case filed a Stipulation of Dismissal this week — click here to read it. Of course, details of the settlement were not disclosed. But this appears to close what had been a very contentious dispute — click here to read the Blog’s coverage of the case.
One other note about the case, I had been meaning to cover plaintiff’s motion to strike some of defendant’s pleadings for using variations of the term “shell corporation,” arguing that the term is derogatory in a manner similar to the “patent troll” moniker. Judge Pallmeyer ruled on the motion in a Minute Order stating that the Court would no longer use the terms, but denying the motion to strike. Because the Minute Order does not provide much analysis and because the issue was already covered very well by Joe Mullin at The Prior Art blog — click here to read Mullin’s post — I will not do a separate post on the motion. But if you are interested in the historical, legal use of the term, the pleadings on the motion are an excellent information source.
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Harris v. Fish & Richardson Update: Patent Troll Tracker Returning
Joe Mullin, an IP Law & Business reporter, has an excellent series of posts on his The Prior Art blog discussing the Harris v. Fish & Richardson case and the Patent Troll Tracker — click here for this blog’s coverage of the Harris case. Mullin has three posts with lots of details and has promised a fourth:
1. Harris has dropped his subpoena for a deposition of Rick Frenkel, the previously anonymous creator and author of the Patent Troll Tracker — click here for the post. The post includes detailed analysis of each party’s declaratioins and allegations about the other.
2. Frenkel, in a declaration related to the subpoena for his deposition, stated that his Patent Troll Tracker blog will return — click here for the post. Unfortunately, Frenkel did not give a date for his blog’s return. While I have not always agreed with the Troll Tracker (for example, I am not a fan of the “Troll” name), Frenkel researches and writes very well and it will be good to have his voice back as part of the blog conversation.
3. Mullin’s third post is a detailed analysis of whether Frenkel is a reporter, including an analysis of Harris’s arguments, through the Niro Scavone firm, that he is not — click here for Mullin’s post. Mullin concludes that Frenkel is a reporter. The facts that he wrote anonymously, did not reveal his sources and was advocating a position (which Harris argued meant Frenkel was not a reporter) do not mean Frenkel could not be reporting. Mullin explains that there is a long history of both advocacy in reporting and anonymous reporting, and that reporters generally do not reveal anonymous sources.
4. Mullin promised a fourth post this week about anonymous blogging, a subject I have weighed in on several times — click here for the Blog’s anonymous blogging posts. I will likely comment on Mullin’s post once it is up. But I think he previewed his position when he posted over the weekend that he was discontinuing moderation of comments and welcomed anonymous comments.
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ICR v. Fish & Richardson: Patent Infringement Gets Personal
Illinois Computer Research, LLC v. Google Inc., No. 07 C 5081 (N.D. Ill.) (Pallmeyer, J.).
Judge Pallmeyer is presiding over this case, which began as a standard case of a patent holding company, Illinois Computer Research (“ICR”) suing a large defendant, in this case Google, for patent infringement. The complaint was a standard three page notice pleading complaint alleging that Google infringed ICR’s patents based upon its Book Search functionality – click here for the original complaint. But the case quickly morphed into a dispute between a law firm, Fish & Richardson (“Fish”), and its former partner, the inventor and former owner of the patents in suit Scott Harris. ICR amended its complaint adding Fish and turning it in to a speaking complaint alleging that Fish forced Harris to resign because of the suit against Google and seeking a declaratory judgment that Harris, not Fish, owned the patent in suit – click here for the amended complaint.
Fish answered the amended complaint – click here for the answer – and filed speaking counterclaims alleging that Harris breached his partnership contract and fiduciary duties, and seeking a declaratory judgment that Fish owned the patents – click here for the counterclaims. Harris responded with his own speaking counterclaims alleging tortious interference and defamation – click here for Harris’s counterclaims and click here for Fish’s answer. Shortly after Fish’s second answer, Google was voluntarily dismissed with prejudice, but the case regarding Harris and Fish continued.
Fish filed a motion for expedited discovery, which the Court granted in court, without an opinion detailing the discovery allowed. Fish also filed a Fed. R. Civ. P. 12(c) motion for judgment on the pleadings seeking to dismiss plaintiffs’ tortious interference and defamation claims. That motion has been briefed, but not decided yet. And last week, Fish filed a motion to amend its counterclaims and third-party complaint naming six additional entities – click here for the motion. The motion does not identify the new parties specifically except to say that some are unnamed Doe defendants and that they are all related or believed to be related to Harris’s and ICR’s law firm Niro Scavone. Fish appears to be making a Propat-style argument that some or all of the additional defendants have or had an interest in the patent in suit and, therefore, are necessary parties. I will cover these opinions as they come out, but in light of all of the coverage this case has been getting – for example, see this recent Troll Tracker post and this case timeline at Joe Mullin’s The Prior Art Blog which Mullin promises to update periodically – I thought readers would be interested in some detailed background of the case. More to come as the Court issues opinions.
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