A world Record Inferential leap—worthy of Bob Beamon

Patent Holder Identified in Exhibit 1 vs. Does 1-254 (N.D. Ill. 2021)

I previously wrote briefly about this double-anonymous lawsuit.  The plaintiff filed the lawsuit in secret in order to avoid spooking the defendants.  The complaint was followed up by a request for temporary restraining order.  District Court Judge Matthew Kennelly quickly denied plaintiff’s request to conceal its identity and also issued an order to show cause as to why the case should not be dismissed for improper joinder under 35 U.S.C. § 299.  This ex parte situation provides an instance where it is important that the case was routed to a patent-knowledgeable judge such as Judge Kennelly.

In its opinion, the court begins with a discussion of a common practice in trademark litigation — to file suit naming “dozens or even hundreds of claimed infringers and counterfeiters.”  In those cases, an attachment to the complaint offers some information that partially identifies the defendants.  And, that attachment is filed under seal to avoid tipping-off the defendants before a TRO can be filed to payment processors (such as PayPal) to attach any of the defendants assets in the US. In those cases, however, the plaintiff’s name is ordinarily made public.  In response, the plaintiff has amended its pleadings to now disclose its name under the new caption

NG Imports vs. Does 1-254 (N.D. Ill. 2021)

In his order, Judge Kennelly also raised the improper joinder issue of 35 U.S.C. § 299. That provision was added to patent holders from asserting their patents against a large number of defendants in a single lawsuit and reads “For purposes of this subsection, accused infringers may not be joined in one action as defendants or counterclaim defendants, or have their actions consolidated for trial, based solely on allegations that they each have infringed the patent or patents in suit.”  In response, the patentee has alleged that all of the accused products are coming from the same “unknown Chinese manufacturer.”  That same-source linkage would seemingly be enough to allow joinder.

The amended complaint also reveals the patent at issue – US10881159.  A parallel lawsuit was previously filed in California asserting the same patent against a Chinese company. NG Imports v. Zhengzhou Kerui Electronic Commerce Company, Ltd., Docket No. 2:20-cv-09776 (C.D. Cal. Oct 23, 2020).

= = = =

The papers mention a site that I have not explored sellerdefense.cn — a site that “monitors this District’s PACER filings and screens for Plaintiff counsel’s filings as well as all Trademark and Patent filings throughout the District.”   In his opinion, the Judge found that the existence of the website as justification for sealing Plaintiff’s name an “inferential leap—worthy of Bob Beamon in the 1968 Olympics—that if it becomes known that the plaintiff has filed a lawsuit against someone, the defendants will all hide their assets. The Court is unwilling to draw this inference without some supporting evidence and argument.”

10 thoughts on “A world Record Inferential leap—worthy of Bob Beamon

  1. 2

    Dennis, I think you meant to write, “That provision was added to *prevent* patent holders from asserting their patents against a large number of defendants in a single lawsuit…”

  2. 1

    “Though the connection is less obvious than for agencies that deal with civil rights, poverty, health care or housing, there is a direct line between what the [PTO] does and the systemic disenfranchisement of Black people.”

    link to nytimes.com

    I think we should come up with a word for the disorder of seeing patents as excessively central to the world. Suggestions are welcome.

    1. 1.1

      Equity instead of equality should be a non-starter for all.

      1. 1.1.1

        Anon confirmed ebil.

        1. 1.1.1.1

          So 6, in 1984-speak, you have given me a compliment.

          Thank you.

    2. 1.2

      Patent topic saliency disorder?

    3. 1.3

      “Whether that’s due to structural issues in the Patent and Trademark Office or to systemic barriers Black people face that make them less likely to apply for patents is unclear”

      I love when leftists presume the premise from the outset without acknowledging that they are doing so. It could, oh I don’t know, be because black people recognize that individual patenting is not a way out of the oppression of people like the author (lawlyers of whatever stripe).

      “Few avenues exist for people to engage with the office,”

      It’s pretty ez to write a letter to the director or anyone else. Can prob email them as well.

      “For example, a majority of the agency’s “public” advisory committee members are representatives of corporations, including several from the pharmaceutical sector. Is it any wonder that the interests of Black people are overlooked, when you consider how vastly underrepresented they are in corporate America?”

      I would actually agree with them if they put forward something that was uniquely in the interests of black/brown people that was at issue which this would influence. As I have yet to see much, I’m not sure how this would be relevant.

      “For too long, the Patent and Trademark Office has operated as though equity isn’t part of its mandate.”

      Pretty sure it isn’t.

      “But the right leader will understand that the patent system is one of the most powerful instruments for justice in our federal arsenal. To stay true to its promise of equity across government, the Biden administration must choose wisely.”

      Imma disagree. Practically all patent attorneys (which the director has to be iirc now) will likely be near, or outright, a corporatist from the get go (read: oppressor of black/brown people regardless of their own ethnicity or race), and likely has very little influence over any muh equity to be achieved in the office. They’ll give us some flowery speech tho and all leftists will feeeeeeel really good while nothing happens. But gl w that.

      1. 1.3.1

        When “equity” is made to be equal to “right” (or correct), your agreement (or reality for that matter) need not be considered.

        Welcome to Neo-Liberalism and the foundation of identity politics.

    4. 1.4

      I refuse to look at the work of a censorious organization like the NYT. In what context was that bit of @#$% released from the bowels of the Gray Lady?

      If someone thinks the PTO is hard to deal with, that’s not a black thing, that’s a general government incompetence/we-don’t-care-about-the-public-we-serve thing, regardless of your skin color. I’ve been in this business for a while, and I have yet to encounter a requirement that applicants reveal their skin color, hair color, eye shape, height, weight, sexual orientation, marital status or anything else. Did I miss some amendment of the statute or the CFR that now requires disclosure of that information to get a patent? Or was the author of that quote one of those people who finds “racism” lurking under every rock and behind perceived slight (real or imagined)?

      But what does this have to do with Dennis’ post?

      1. 1.4.1

        The intersection with ANY post (and anything in general) is based on the connection between ‘equity’ and ‘equality.’

        That is to say, there is none, but that simply won’t stop any intrusion of ‘political correctness.’

        If YOU dare to speak up, then (as 6 puts it), you are ebil.

Leave a Reply

Your email address will not be published. Required fields are marked *

You can click here to Subscribe without commenting

Add a picture