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

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.

Continue Reading Sealing Documents in Federal Courts

Last week’s Olympic edition Blawg Review focused on the medals. Building on that, this week I discuss the elements of a world record swim. If you were watching last week, instead of blogging, you saw 20 of them in the Olympic pool; seven by Mr. Phelps.
Practice
Nothing is more critical than preparation. A big part of preparation is tightening your stroke and cutting out unnecessary motion. Reese Morrison, at the Law Department Management blog, discusses blunt suggestions for trimming legal bills.
Endless hours in the pool alone are not enough, you need a good coach. Business development coach Cordell Parvin provides an excellent three part series at his Law Consulting Blog – one, two, and three – on persistence, an important element of any Olympic training program. In an Olympic caliber display of persistence, Drug & Device Law had an exhaustive post discussing and classifying each medical device preemption case since the landmark Supreme Court decision in Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008).
You also need a support network to help you get through all of the pool time. Bruce Allen, at Marketing Catalyst, teaches us how to avoid the cocktail conversation you cannot escape from at a networking event. At Copyblogger, John Morrow explains that content is no longer king in the blogosphere, you need friends. And he teaches you how to get them. At BlawgIT, Brett Trout – who is a fighter, not a swimmer – has an interesting post about how to work together as a community to thwart webjackings (the hijacking of a website). And Mediation Channel’s Diane Levin discusses the social side of blogging, and reading blogs.
Of course, if you do not have time to practice you will never set the record. So, you need a job, or at least some cash. On that note, Harmful Error posts the great news that loan forgiveness programs were expanded this week for legal aid lawyers, state prosecutors and public defenders.
The Suit
The clothes make the man (or the woman). This year the go-to duds were Speedo’s LZR suits. Patent Librarian Michael White tells us that, no surprise, Speedo patented the LZR. IPKat expands on swimming patents, providing a broader view of Olympics-related patents.
Genes
As a guy who swam for a lot of years and practiced hard throughout, I can tell you not everyone has what it takes to set world records. The closest I came was getting beat by an Olympian and world record holder. Of course, you might be less impressed by my loss if you knew that at the time his Olympic medals were four or five decades old, and I was 19. At Idealawg, Stephanie West Allen discusses the traits that make entrepreneurs entrepreneurial.
Mental Focus
One of the big stories on Phelps this week was how he thinks of nothing but not losing during a race. At Litigation & Trial, Maxwell Kennerly tells us that you have to know when you are sweating the details more than your client would want by over emphasizing proof-reading. Of course, even Kennerly agrees that some details matter.
Knowing the Rules
You have to know the rules. Turn wrong or break the rules for your stroke and beating a record by ten seconds will not matter. At the Legal Juice, John Mesirow reports that kids at the Lake County Florida library are allowed to rent R-rated movies because they believe it is an unconstitutional delegation of authority for the Motion Picture Association of America’s guidelines for determining obscenity. I am sure kids from all over that area are flocking to the Lake County library because the rules are on their side, at least for now.
Filewrapper reports on a Federal Circuit decision holding that copyright infringement, and not just breach of contract, when the terms of an open source license governing the copyrighted material are breached. For more on this major decision in the IP world, check out: BLT; Law Pundit; and Patently-O.
Seattle Trademark Lawyer Mike Graham shows the consequences of not following the rules using two Western District of Washington opinions.
Ethan Lieb, guest blogging at Freakonomics, argues that we need to change the rules requiring unanimous juries. And the WSJ Law Blog discusses a judge and a juror who clashed over jury nullification.
The Start
A bad start is hard to recover from, especially when you are chasing the fastest time ever. Evan Schaeffer shows how to open well at trial at the Illinois Trial Practice Weblog, and he links to Trial Theatre’s opening statement quiz.
Turns
Coming off the wall in a turn is the fastest a swimmer goes during a race. So, you need good turns. IntLawGrrls discuss how to turn around the conflict between Georgia and Russia (sorry the turns section was tough).
Legal Literacy discusses Whole Foods’ turned around (or recalled) beef and looks behind the scenes at how it happened and Whole Foods’ impressively quick response.
The Finish
Do you do an extra stroke or do you glide in hard? Always a tough question, but the .01 seconds the decision costs you can mean the race and the record.
At his E.D. Texas Weblog, Michael Smith reports that while the E.D. Texas started out as a rocket docket, particularly for patents, it has now slowed down and let many other districts catch it with a time to trial of 24 – 30 months.
The Law and Magic Blog reminds us that we cannot always win, and that trying to rig the system to guarantee wins – he is talking about the stock market, but it holds true for the pool – is dangerous work.
At the IP ADR Blog, Victoria Pynchon praises several Perkins Coie attorneys who went the distance for their pro bono clients at Gitmo and earned the clients’ respect for providing them an able defense.
** Images provided via a Creative Commons license by A. Dawson or Andre from Flicker. **
Next week’s Blawg Review will be at fellow LexBlog site, the Texas Appellate Law Blog.
Blawg Review has information about next week’s host, and instructions on how to get your blawg posts reviewed in upcoming issues.

Continue Reading Blawg Review #173

There has been a lot of coverage of Troll Tracker’s recently disclosed identity.* Troll Tracker ended his anonymity a few weeks ago and now faces a libel law suit along with his employer, Cisco, based upon statements he made about a case involving Cisco — this is one of the many reasons I do not write about cases that my firm or I are involved in.
I did not intend to weigh in on this story because there was not much to add (see below for links to some of the best coverage). But then I read Joe Hosteny’s March 2008 IP Today article – click here for the article — about anonymous blogging and anonymous commenting. Hosteny is a partner in the Niro Scavone firm, a firm that was often a focus of the . I have not always seen eye to eye with Hosteny in the courtroom, but I found his article both very good and thought provoking.
Hosteny raises real concerns about how the anger surrounding the non-practicing entity dispute has gotten out of hand. Death threats over patent litigation (even assuming they are idle threats) cannot be tolerated. These threats make me question whether the patent litigation bar is maintaining the levels of civility and sanity required by our professional standards.
Violent threats and, more broadly, incivility have no more place in the realm of legal blogs than in the legal system. But it does not follow that anonymous blogging and commenting are inherently bad – the issue is more complex than that. Lots of electrons have been spilled over the pros and cons of anonymous blogging – blog guru Kevin O’Keefe is no fan of anonymous blogging, whereas the anonymous editor of Blawg Review provides a great service to both the legal and the blogging communities with the weekly Blawg Review, despite his anonymity.
Anonymous blogging is not the problem. The problem is with anonymous bloggers who believe that anonymity allows them to comment on cases involving themselves or their clients , or to post threatening comments (Troll Tracker, of course, never posted any threats that I am aware of). If Troll Tracker had not blogged about his client’s case and if he had stuck to the verifiable facts, he likely would not have gotten sued.
Similarly, anonymous commenting is not the problem if legal bloggers, including Troll Tracker, monitored and approved comments before** they went live, the death threats against Niro never would have been published. I moderate the comments to this Blog and, as a result, angry rants against a judge or an attorney (none have been violent) do not make it on the Blog. And that anonymity may have provided the writer with false courage. But I prevent that, and so can any blogger, by acting as a gatekeeper.
Hosteny argued that anonymity is cowardly and not in the tradition of the First Amendment because the Declaration of Independence was signed by the Continental Congress. But he leaves out that the Federalist Papers were signed with aliases. Anonymity can be useful in that it can provide courage to voice ideas that otherwise might not be interjected into public discourse. For that reason, I think there is a place for anonymous blogging and commenting, as long as anonymous bloggers do not use anonymity as an excuse to avoid the rules of our profession and of common sense.
As promised above, for more coverage of Troll Tracker and the defamation suit, see:
E.D. Texas Blog
IP Law360 (subscription required, but a very thorough history)
Patently O — discussing a related federal suit filed in the District of Arkansas, including a link to the complaint.
Prior Art Blog — detailing the history of the suit and here and here on other aspects of the story as well.
WSJ Law Blog
* There are no Troll Tracker links because the site is currently either down or subscriber only.
** Troll Tracker did remove violent and offensive comments, but only after they were posted and he became aware of them.

Continue Reading Anonymous Bloggers Carry on Tradition of the Federalist Papers

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

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

Following up on my recent post about Judge St. Eve’s post-eBay permanent injunction opinion (the first in the Northern District), Michael Smith who writes the E.D. Texas Federal Court Blog has written a very interesting article analyzing the first nine district court permanent injunction decisions decided using the eBay standard.


Continue Reading Analyzing Permanent Injunctions Post-eBay