Chicago patent attorney Kevin Keener recently filed the following action in N.D. Ill. Federal Court. You’ll note that the name of the patentee was filed under seal as was any identifying information about the asserted patent. The infringers are unknown but likely “foreign” individuals and unincorporated businesses who are selling infringing items to US customers via Amazon.com and other “infringing webstores.” Amazon has not been named as a defendant.
Read the complaint: doe v doe
The patentee argues that the secrecy is important because of the “risk that Defendants will transfer assets or destroy evidence upon learning of Plaintiff’s identity and patent.” The case has been assigned to Judge Matthew Kennelly as part of the Patent Pilot.
The complaint twice refers to its “design” and never to an “invention.” This makes me think it is likely a design patent case.
Although the defendants are unknown and are believed to be foreign, the patentee alleges that the N.D.Ill. “Court has personal jurisdiction over Defendants in that they transact business in the State of Illinois and in the Northern District of Illinois.” Regarding venue, the complaint alleges lots of potential connections, but fails to cite the statement in 28 U.S.C. § 1391(c)(3) that a foreign defendant “may be sued in any judicial district.”
Presumably, the plaintiff may be seeking an immediate temporary restraining order under R.65. However, the rules limit the court’s ability to act and at least require an “affidavit or a verified complaint” stating particular facts which “clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” Id. It is possible that such a document was filed under seal.
via @jngross
The district court denied the patentee’s motion to file the complaint with its identity being kept under seal. Further, like the case noted in comment 4, the court also ordered the patentee to show cause why the suit should not be dismissed under section 299. Patent Holder Identified in Exhibit 1 v. Does 1-254, as Identified in Exhibit 2, No. 21 C 514, 2021 WL 410661 *2-*3 (N.D. Ill. Feb. 6, 2021)
“risk that Defendants will transfer assets or destroy evidence upon learning of Plaintiff’s identity and patent.”
Wouldn’t they do that anyway if they see that in the lawlsuit?
Could be an ex parte TRO?
In another recent design patent infringement complaint brought against a host of defendants listed in a “Schedule A”, a district court ordered the patentee to show cause as to why the joinder provision of Sec. 299 of the Patent Act did not require dismissal for improper joinder. (At least the patentee identified itself in this case)
Oakley, Inc. v. The Partnerships and Unincorporated Assocs. identified on Schedule ‘A,’ No. 21 C 536, 2021 WL 308882, *1-*2 (N.D. Ill. Jan. 30, 2021) (where patentee asserted a design patent against 60 different defendants identified on a Schedule A, in a manner that followed a permissible procedural practice in trademark and trade dress cases in dealing with multiple counterfeit products sold by multiple defendants using different assumed names, ordering the patentee to show cause why the design patent infringement claim should not be dismissed in view of the limited joinder provisions of § 299 of the Patent Act)
That was messed up. Let’s try again.
I {REDACTED} {REDACTED} {REDACTED} {REDACTED} {REDACTED} {REDACTED} {REDACTED} but {REDACTED} {REDACTED} {REDACTED} {REDACTED} seal {REDACTED} {REDACTED} {REDACTED} be {REDACTED} {REDACTED}.
The complaint (par. 41) also refers to 35 U.S.C. § 289, which is specific to design patents.
I assume you saw in FN1 where it says definitively a TRO motion is forthcoming?
Also, you should refer this case over to Volokh. They have a fascination with all things involving sealed information.
This thread should probably be moved over to the secret comments thread, where all comments are under seal.
Shhh, you’ll blow our cover!
I but seal redact .
That was messed up. Let’s try again.
I {REDACTED} {REDACTED} {REDACTED} {REDACTED} {REDACTED} {REDACTED} {REDACTED} but {REDACTED} {REDACTED} {REDACTED} {REDACTED} seal {REDACTED} {REDACTED} {REDACTED} be {REDACTED} {REDACTED}.
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