The Bilski analyzers are moving away from the opinion itself, and toward the practical impacts of the decision and the unanswered questions it left, as opinions always do. Here are several of the best:
271 Patent Blog (asking whether a method for swinging on a swing meets the Bilski standard);
Maryland IP Law;
Patently-O (and here and here and here and here); and
The Prior Art.

Continue Reading More Bilski News

Jones Day v., 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

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.

Continue Reading IP Litigation News

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

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.

Continue Reading ICR v. Fish & Richardson Update: Case Settled

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.

Continue Reading Harris v. Fish & Richardson Update: Patent Troll Tracker Returning

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

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.

Continue Reading ICR v. Fish & Richardson: Patent Infringement Gets Personal