Kilopass  is an important case, given the pending case on 285 before the Supreme Court, and in my view is a big step toward a proper interpretation of Section 285.  However, what drives me nuts is that the majority opinion, by Judge O'Malley who I respect enormously, talks about "chaning the standard" for imposing fees.  The Court can't do that:  Only Congress can.  The question should be:  what standard did Congress set in 1952?  For the reasons that follow, I believe Chief Judge Rader's concurrence is ultimately correct.  (Disclaimer:  I clerked for Chief until a few months ago.)

Down in the comments I explain there is no constitutional right implicated by fee shifting, so the PRE standard is irrelevant, and the statute means what it says.  Here is a clip from a California case, quoted in a comment below:

Hundreds of California statutes provide for an award of attorney fees to the prevailing party. (See Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar 2d ed. 2001) § 2.1, p. 12; see also id., ch. 17 [charting many such statutes].) Fee shifting simply requires the party that creates the costs to bear them. (Premier Elec. Const. Co. v. N.E.C.A., Inc. (7th Cir. 1987) 814 F.2d 358, 373.) It does not make a party “liable” for filing a lawsuit. This distinguishes Professional Real Estate Investors, supra, 508 U.S. 49, Equilon’s central authority, which concerns not fee shifting but the scope of antitrust liability for engaging in litigation. There, when movie studios challenging the rental of videodiscs to hotel guests brought a copyright infringement action against certain hotel operators, the operators filed counterclaims alleging the studios’ action was intended illegally to restrain trade. The high court held that one who initiates litigation is immune from antitrust liability for doing so unless the litigation is a “sham.” (Id. at pp. 60-61.) The case did not involve a fee-shifting provision nor did the court anywhere suggest that its “sham” litigation rationale might apply in the fee-shifting context. Equilon cites no case in which a fee-shifting provision has been held unconstitutional under Professional Real Estate Investors or its rationale. (See generally Alyeska Pipeline Co. v. Wilderness Society (1975) 421 U.S. 240, 262, 44 L. Ed. 2d 141, 95 S. Ct. 1612 [finding it "apparent that the circumstances under which attorneys' fees are to be awarded and the range of discretion of the courts in making those awards are matters for Congress to determine"].)

Among other things, Florida seems to more heavily restrict the use of "linkedin" and things like that.  A copy of the complaint is here.

The AIPLA has expressed concern over the definition of patent assertion entities… arguing it's overly inclusive and basically saying that bad PAEs are those who abuse infringement litigation… see posts below re why 285 already deals with this.

Probably few posts for a while. Happy Holidays to all.

It's early, but as I read this case it may severely limit the ability to bring cases in the ITC, rather than federal court.  Y'all probably know better than me.

Here's a nice summary of these changes, some of which have real practical implications that lawyers need to keep up with.

The brief reads like a very, very long version of my blog post, below.

Let the definitional games begin!  Here is the news.

Okay, he didn't quite go that far, but close.  And he has a point, as I can vouch for.  (I was an expert in a high-profile case a while back, and one of the jurors was tweeting or facebooking, I don't know which, throughout, and the judge and lawyers monitored and tried to get the juror to stop.)  The article about his remarks is here.

The article is here.  I like the fact that it ties the chimney-sweep-lost/found-jewel-case with spoliation of ESI, as I've taught both!

An article is here.  From what I can tell it sounds like "typical" discovery stuff, but I can't find the actual decision.

I hadn't seen this case til now, Network Protection Sciences LLC v. Fortinet.

There's a wonderful little body of law trying to harmonize the ethical rules — which say a lawyer can't use someone to (a) have an ex parte contact with a person who is "represented by counsel" (which is WAY broader than you might think; (b) have contact with a person who is not "represented by counsel" by appearing disinterested when he is not; or (c) engaging in deceit — with the use of undercover investigators to find out, e.g., if the target sells knock-off goods.

Boiled down, the rule seems to be developing that, if the contact is made pre-suit and without knowing that the person is "represented by counsel" (again, very broad counter-intuitive meaning), and if the private investigator only acts like an ordinary consumer, then the contact is okay.  A recent case so holding is Turfgrass Group, Inc. v. Northeast La. Turf Farms, LLC 2013 WL 6145294 (W.D. La. Nov. 20, 2013).

Higher education doesn't think so… but they think the anti-troll bill is targeting them.  Read about it here.

(Go Wildcats!)

Article here.

If you haven't read how the USPS used, for its hugely-popular stamp of the statue of liberty, a picture of the "sculpture" of the replica outside the New York New York casino in Vegas, you should.  It is here.

On a follow up to the post below about this issue, a district judge struck the answer of a defendant after concluding that the defendant had misrepresented its involvement in an IPR proceeding that had turned out favorably to the patentee, in order to avoid the estoppel effect.  The decision in Bortex Indus. Co. Ltd. v. Fiber Optic Designs Inc. is here.

This issue drives me nuts:  section 552 of the Restatement was designed to impose tort liability under narrow circumstances for economic loss caused by negligent misrepresentation and, by its terms, applies even when there is privity of contract between plaintiff and defendant.  (Indeed, some states hold there HAS to be privity for a 552 claim!).  Yet, some courts say that a 552 claim is barred by the economic loss doctrine, which is intended to police the boundary between contract and tort law.

The problem with this is that (a) 552 and (b) fraud and (c) other torts are narrowly crafted to be, in a sense, exceptions to ELD.  If ELD bars a 552 claim, it bars a fraudulent inducement claim.  That, of course, is silly, but why this issue persists, I don't know.  I wrote a paper about this years ago, never published. I wish I would have..

Rant done.

I love stuff like this…

Watson files an ANDA; Bayer sues, triggering an automatic 30 month stay of the ANDA.  Judge grants judgment on the pleadings to Watson, which is affirmed on appeal.  District judge later denies request by Watson for "exceptional case" under 285.

Later, Watson sues Bayer in state court, alleging malicious prosecution and other state law claims.  Boiled down, it asserts Bayer filed the infringement suit for an improper purpose — to trigger the 30 month stay.  Bayer removes the case to federal court.  Judge denies the motion to remand, though honestly I'm not quite sure why!