Here are several stories that did not warrant a full post, or that were so well done by another blogger that there was no point in recreating the wheel:
The Federal Circuit upheld Judge Coar’s preliminary injunction in Abbott v. Sandoz, No. 05 C 5373 — click here to read the Federal Circuit’s opinion and here to read the Blog’s prior posts on the case. Dennis Crouch at Patently-O has a good post explaining the central issue of the case — a defendant’s burden of proof regarding invalidity in the likelihood of success analysis. Judge Newman wrote the majority decision with Judge Gajarsa dissenting. Crouch sees the case as a “good vehicle” for en banc review of the preliminary injunction standard.
Ocean Tomo is holding its 8th IP auction at home in Chicago this Wednesday and Thursday.
Michael Sadowitz at the MTTLR Blog has a great post (click here to read it) discussing one of the big post-eBay unknowns, who sets post-verdict damages when a permanent injunction is not issued, judges or juries. Sadowitz looks at a string of Eastern District of Texas cases letting juries set post-verdict damages. Sadowitz also notes that the few courts that have looked at the issue have split as to whether post-verdict damages can be severed from the damages portion of the trial.
Finally, having mastered all things drug and device related, the Drug & Device Law blog has moved into the patent realm, with some excellent analysis by their colleagues Kevin McDonald and Larry Rosenberg of Jones Day. The post (click here to read it) discusses a recent Federal Circuit decision which held that cash payments made to settle Hatch-Waxman patent litigations do not violate antitrust laws, under certain conditions:
On October 15, 2008, the Federal Circuit joined the growing list of federal courts to hold that the use of cash payments to settle Hatch-Waxman patent litigation does not violate the antitrust laws as long as (1) the settlement excludes no more competition than would the patent itself and (2) the claim for patent infringement and/or validity is not a “sham,” that is, not “objectively baseless.” In In re Ciprofloxacin Hydrochloride Antitrust Litigation, No. 08-1097, 2008 WL 4570669 (Fed. Cir. Oct. 15, 2008), a unanimous panel of the United States Court of Appeals for the Federal Circuit affirmed the summary judgment granted to Bayer by the United States District Court for the Eastern District of New York, holding that Bayer’s settlement of patent litigation with a generic pharmaceutical manufacturer did not violate the antitrust laws.

Continue Reading IP Legal News

Several stories and updates that are worth a mention, but do not warrant a separate post:
I was going to write a post explaining new Federal Rule of Evidence 502, but Beck & Herrmann at Drug & Device Law beat me to it and did an excellent job (actually, they did not, but their colleague David B. Alden of Jones Day did) — click here to read the post. Every litigator should read FRE 502 for themselves and then read the Drug & Device Law post or some other guide. It is a significant rule, even though it codifies much of what was already the standard practice.
Anne Reed at Deliberations provides a series of links to the most recent edition of The Jury Expert — click here for Reed’s post. If you do not already subscribe to The Jury Expert, do it now. This is a fabulous publication. My favorite article is by Oklahoma State’s Edward Burkley and Darshon Anderson, discussing translating the science of persuasion into the courtroom. Anyone who makes it their business to persuade judges, juries, colleagues or even their spouse should read this article. Much of the article will not be new to anyone who studies the art of persuasion. But at a minimum it is an excellent distilling of important persuasion techniques and everyone will learn or rethink a few things.
Patent Reform is back, or at least Minority Whip Senator Kyl (R-AR) has introduced a new patent reform bill. It is hard to imagine there is much traction in the midst of a presidential election and all of the economic unrest swirling around Washington. But you can read more about the bill at Patent Docs and the 271 Patent Blog.

Continue Reading Northern District & IP Legal News

Jones Day v. BlockShopper.com, No. 08 C 4572 (N.D. Ill.) (Darrah, J.).
As I have described in earlier posts (click here, here and here) plaintiff Jones Day sued defendants, BlockShopper LLC and two individuals associated with the website (collectively “Blockshopper”), for allegedly using Jones Day’s service marks and linking to its website in at least two articles discussing Chicago real estate transactions of Jones Day associates. Jones Day claims service mark infringement, Lanham Act false designation of origin, Lanham Act dilution, and state law deceptive trade practices and unfair competition. Plaintiff also moved for a temporary restraining order (“TRO”). The parties stipulated to a TRO which the Court entered ordering defendants not to: 1) use Jones Day’s service mark; 2) use any content from or link to Jones Day’s website; or reference Jones Day in Blockshopper headlines.
Last Friday, Blockshopper filed a motion to dismiss. And several public interest groups — the Electronic Frontier Foundation, Public Knowledge and the Citizen Media Law Project — has sought leave to file this amicus brief supporting Blockshopper’s motion to dismiss. Jones Day opposed the motion, arguing that the three groups and their arguments do not meet any of the Seventh Circuit’s standards for amicus filings. I will keep you posted about the case generally and as to whether the Court enters the amicus brief.
And the case continues to draw fairly strong legal blog interest:
The Prior Art
Real Lawyers Have Blogs (LexBlog’s Kevin O’Keefe)
Public Citizen at its Consumer Law & Policy blog (acknowledging that he was incorrect as to the timing of an alleged quote from Judge Darrah, which he also did in a comment to my post discussing the alleged quote)
Las Vegas Trademark Attorney
Citizen Vox
Ars Technica (and here, discussing the amicus brief)
The legal blog commentary continues to run heavily against Jones Day and in favor of Blockshopper.

Continue Reading Jones Day v. Blockshopper: Amicus Filing

Jones Day v. BlockShopper.com, No. 08 C 4572 (N.D. Ill.) (Darrah, J.).
As I have described in earlier posts (click here and here) plaintiff Jones Day sued defendants, BlockShopper.com and two individuals associated with the website (collectively “Blockshopper”), for allegedly using Jones Day’s service marks and linking to its website in at least two articles discussing Chicago real estate transactions of Jones Day associates. Jones Day claims service mark infringement, Lanham Act false designation of origin, Lanham Act dilution, and state law deceptive trade practices and unfair competition. Plaintiff also moved for a temporary restraining order (“TRO”). The parties stipulated to a TRO which the Court entered ordering defendants not to: 1) use Jones Day’s service mark; 2) use any content from or link to Jones Day’s website; or reference Jones Day in Blockshopper headlines. Blockshopper has a deadline of this Friday, September 19, to file a motion to dismiss
It is not surprising that the suit has gotten a lot of interest in the legal blogosphere. Here are some of the most significant posts:
Consumer Law & Policy Blog — considering the merits of the claims.
Legal Blog Watch — questioning the PR ramifications of the suit.
Techdirt
While I generally save my commentary for the opinions, there is one point that needs to be made. Many bloggers are using an alleged quote from Judge Darrah (I did not hear it and have not seen a transcript of the hearing, so cannot confirm it) warning Blockshopper that defending the suit would be very expensive. Unless the comment was made in a hostile or aggressive manner, which I very much doubt and which has not been suggested in the posts I have seen, that is simply a statement of legal reality. Defending federal intellectual property cases has become expensive, very expensive. And defense costs are a factor in the calculus of every defendant’s business decisions about a law suit.

Continue Reading Jones Day v. Blockshopper: Lighting the Legal Web on Fire

Counsel on Call is putting on a two hour seminar next Wednesday, June 25, titled “Were You Born to Blog?” It is being held in Counsel on Call’s office at from 3:00-5:00 pm.
The panelists are three (relatively) local bloggers with great credentials:
Mark Herrmann of Jones Day and the Drug & Device Law Blog;
Patrick Lamb of the Valorem Law Group and the In Search of Perfect Client Service blog; and
John Wallbillich of Lexvista Partners and the Wired GC.
According to Wallbillich, they will “pull the veil back a bit and give a real-world view of why legal blogging matters, where it is going and how it can be used by firms and in-house law departments to foster service delivery and collaboration.” These guys are each excellent bloggers. I have no doubt the program will be well worth the time. And although I am already sold on the value of blogging, I will try to attend.
Program and registration information is here.

Continue Reading Chicago Blogging Seminar