Black & Decker Corp. v. Positec USA Inc., No. 11 C 5426, Slip Op. (N.D. Ill. Aug. 5, 2015) (Dow, J.).

Judge Dow denied defendant’s motion to strike plaintiff Black & Decker’s (“B&D”) jury demand as to their Lanham Act claim for defendant’s profits.

While the Lanham Act suggested the possibility of a jury

Black & Decker v. Positec USA, Inc., No. 11 C 5426, Slip Op. (N.D. Ill. Oct. 5, 2015) (Dow, J.).

Judge Dow entered the jury verdict in this Lanham Act case involving plaintiff’s (collectively “Black & Decker”) black and yellow Dewalt color scheme. The jury found as follows:

  • Defendants Positec and R W Direct

John Marshall’s Summer 2008 edition of its Review of Intellectual Property Law is on bookshelves everywhere, plus it is online (click here for the table of contents of the current edition with links to pdfs of each article). Some of the highlights in:
The text of Chief Judge Michel’s address to the Federal Circuit Judicial Conference in which he discussed the state of the Circuit and asked Congress to add a fourth law clerk for each appellate judge to speed the Federal Circuit’s output;
An article by R. Mark Halligan arguing for the addition of a trade secret misappropriation cause of action to be added to the Economic Espionage Act of 1996; and
Hal Wegner’s discussion of the impact of the Supreme Court’s patent exhaustion decision in Quanta v. LG; and
Daniel Sullivan’s student arguing that an Article I patent tribunal should be created and that patents should know longer be subject to trial by jury.
Whether you agree or disagree with the authors, this edition has some provocative arguments.

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I have written about the legal issues surrounding social networking sites (click here and here to read those posts). I even did an ALI-ABA teleseminar with Eric Goldman yesterday discussing, among other things, how the Communications Decency Act protects social networking sites against suit based on third party content published on the sites. But Julie Kay’s National Law Journal article yesterday — click here to read it — provided a new angle on the power of social networking sites in the courtroom.
It is no surprise that lawyers, either alone or assisted by jury consultants, research juror backgrounds, and use their research during voir dire and to inform their trial presentations, in particular opening and closing arguments. Of course, internet research has been a cornerstone of those efforts for years. But social networking sites have vastly increased the amount of information available about the average person. Instead of learning someone’s Turkey Trot 5k time and one or two newspaper quotes, you now may be able to see their entire resume on LinkedIn, read about major life events on FaceBook, or even read their personal, daily thoughts on a blog. Kay reports that the information is a valuable fact checking tool, acting as a backstop to information provided in a jury questionnaire.
Additionally, blogs can tell you a lot about a juror, that the juror might not be inclined to disclose in open court or on a questionnaire. To illustrate this point, Kay quotes Anne Reed of Reinhart Boerner Van Deuren — who writes Deliberations, one of my favorite legal blogs. Reed tells the story of “Erin” a relatively prominent Florida blogger who blogged that she was a juror several days after posting that: “I totally understand how innocent people that go to prison turn into hardened criminals . . . .” Reed explains that the lawyers might not have struck Erin for her blogging, but that it was critical information to have in the decisionmaking process:
“You’d hate to leave Erin on your jury without having seen her writing,” said Reed. “A juror’s blog tells you things about the jurors that she probably won’t tell you herself.”
Kay also quotes Holland & Knight litigator Dan Small who raises an important and often overlooked note of caution. Small is concerned that invading jurors’ privacy via internet research could make jurors very uncomfortable and is a substantial invasion for people performing their civic duty:
“You are taking people who are doing their civic duty and didn’t sign up to have their whole life probed,” Small said. “It scares people. They wonder: ‘Are they going to hack into our e-mails next?’ The Internet in so many areas creates an extraordinary conflict between the desire for information and the desire for privacy.”
Of course, there is a real question as to whether anything posted on the internet, without password protection or some other privacy protections, can be considered private in anyway. But there is little doubt that knowing their backgrounds were researched and their FaceBook pages were read could make jurors uncomfortable and learning that their backgrounds have been probed could turn jurors against the lawyers or their clients. So, at a minimum, the information needs to be used carefully and discreetly.

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As I posted yesterday afternoon, the jury came back for Trading Technologies (“TT”). The jury found that eSpeed willfully infringed TT’s patents for a six month period in 2004, found the patents valid and awarded $3.5M in damages. The parties have not completed their bench trial on inequitable conduct. So, the Court may still hold the patents invalid based upon inequitable conduct, which would render the $3.5M damages award moot. But unless and until that happens, the award stands and has the potential to be as much as trebled based upon the willfulness finding.
There has been some press coverage already. Here is some of the best:
Crain’s Chicago Business
Wall Street Journal (subscription required)
Ad Hoc News
CNN Money (AP story)
Futures Magazine
Reuters
You can read much more about this case and its related cases in the Blog’s archives by clicking here.

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The jury continued its deliberations yesterday and reconvened this morning. That is not a very informative update, but based on the Blog’s traffic this week people are looking for updates on the case. And that is all there is right now.
A relative who is a criminal defense attorney, often said that longer jury deliberations benefited the defense. Of course, when he had a close case and a fast jury, he sometimes thought that benefited the defense also. It is difficult to read the tea leaves with a jury. But I will let you know as soon as I learn the jury’s verdict. For more on the case and Trading Technologies’ related cases click here for the Blog’s archives.

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The parties have rested on the issues of infringement, validity and damages. Closings were Thursday and the jury now has the case. I attended the closings. Look for my thoughts on them Monday morning — unlike the Northern District, other government offices, the Post Office and many schools, the Blog will be working on Columbus Day. Judge Moran will hear the inequitable conduct case beginning next week.
I will let you know as soon as I learn the jury’s verdict. For more on this case and Trading Technologies’ related cases in the Blog’s archives click here.

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Trading Technologies Int’l, Inc. v. eSpeed, Inc., (N.D. Ill.) (Moran, Sen. J.).
Last week, I attended several hours of the Trading Technologies (“TT”) v. eSpeed trial. I watched the direct exam of TT’s infringement expert. Unfortunately, because of an ill-timed lunch break and other responsibilities, I missed eSpeed’s cross-exam. The jury is made up of eight members and two alternates, equally split between men and women. To their credit and that of the Northern District’s jury pool generally, the jurors appeared very engaged, dressed appropriately for court and were taking detailed notes.
None of the issues that I have written about came up (click here for the Blog’s archive on the case), but I came away with several thoughts about making your case to a jury:
TT’s PowerPoint slides were often, although not always, very dense. This led to a jury that was over-focused on the slides and not listening to the testimony. Of course, TT’s infringement case was on the slides so they may be comfortable with that. But I want the jury focused on my expert and her credibility, not her slides.
Despite their occasional wordiness, TT’s expert interacted very well with his slides. When the expert stepped away from the witness stand and pointed out information on the slides, he recaptured the jury’s attention very well.
When the expert relied upon deposition or trial testimony, TT put the testimony on a slide next to the person’s picture. This was an excellent way of humanizing the cold transcript. I suspect it also helped the jurors remember the testimony by attaching the words to a face.
I understand that trial will continue at least this week and maybe in to next week. I will try to observe the trial again, but I am traveling most of this week so it will not be until late this week or early next. And if I do make it back, I will do my best to watch both the direct and the cross of a witness or maybe both sides’ closings. That way I will be able to provide more perspective on the substance of the trial.

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