Perhaps there are other entities like this, but if so they haven’t made the boom that this one has.  Blackbird Technologies was founded by former big-firm (WilmerHale, Kirkland Ellis) patent litigators. It buys (or somehow obtains rights to assert) patents and asserts them with its own in-house staff of litigators.  Its “news” page reports a number of suits — at least 100 in its short life — and reports that it settled many.

It came onto my radar because of an interesting case involving a prosecution bar.  A defendant pointed out that because Blackbird’s business is buying patents to assert, no lawyer at it should see the defendant’s highly confidential information because those lawyers could then go acquire patents that covered the defendant’s planned products.  The court resolved the issue by requiring the company to covenant not to sue with respect to future products, an interesting resolution of the problem.  A pertinent part of the order in Blackbird Tech LLC v. Service Lighting and Electrical Supplies, Inc., et al., C.A. No. 15-53-RGA (D. Del. May 18, 2016) (Andrew, J.) provides:

the Court will require that Blackbird agree to a covenant not to sue any of these Defendants for infringement of patents involving lighting technology that are acquired during the time between the entry of the protective order and one year after the conclusion of the litigation. To be clear, if Blackbird acquires a patent on any lighting technology6 during the restricted time period, it may never assert that specific patent against these Defendants.

(As an aside, I would love to see how it acquires patents, since some interesting ethical issues could arise from its acquisition practices, since it’s a corporation but it’s practicing law, it seems.  There are some very odd issues that arise sometimes.)

Then I read that Blackbird has sued Cloudflare (Blackbird Tech LLC v. Cloudflare, Inc., which it seems is an Internet security company.  In response, Cloudfare put a “bounty” on every Blackbird patent.  That story is reported widely, including here and here, for example.

Blackbird states that it is designed to help small inventors overcome the obstacles of patent litigation, including the obstinate, more powerful defendant.  I am know that small inventors, and small companies, sometimes face the 800 pound gorilla defendant who refuses to deal fairly, and so the benefit that something like Blackbird can bring is real.  It will be interesting, however, to see if that is what Blackbird is, or if it is going to bring a bunch of nuisance suits, which Cloudflare believes it has done, as it has stated here.

This one, Nova Chemicals Corp. v. Dow Chemical Co., __ F.3d __ (Fed. Cir. May 11, 2017) (here) is interesting because of the issue it doesn’t raise, but more on that in a moment.  Patentee Dow sues and obtains a judgment against Nova.  Years later, the defendant believes that the judgment had been obtained by fraud, and brings an independent action in equity (as allowed by FRCP 60) to set aside that earlier judgment.  Basically, Nova asserted that Dow had lacked standing, basing its argument on some later testimony in an unrelated case, and that the infringement proofs had been misleading.

To set aside a judgment under these circumstances, through an independent action, requires proof of fraud on the court or a truly grave miscarriage of justice.  The district court dismissed the complaint and the CAFC affirmed that dismissal under Rule 36, without any opinion.

Then Dow moved in the district court for fees.  The district court granted them under Section 285, which of course allows a court in patent cases which are “exceptional” to award fees.  Nova never argued 285 did not apply, and the CAFC noted that on appeal.

The CAFC affirmed the district court’s findings, and it’s an odd case not likely to recur, so the substance of the panel’s 285 analysis isn’t too revealing.

But what is interesting to me are two things.  First, the apparent concession by Nova that 285 applies to equitable actions to set aside judgments. I’m not sure that is so clear but presumably they looked at that.  But it is also interesting to me, and is related to that, that this appeal (and the earlier appeal) was taken to the Federal Circuit, not to a regional circuit.  The Federal Circuit’s appellate jurisdiction is limited to civil actions arising under the patent laws, which an independent action to set aside a judgment is not, one would think…

Lawyers leaving a firm are often tempted to try to persuade clients to go with them, to make copies of files that may not be their property, and to engage other activity that may constitute breach of fiduciary duty to their current firm.  Some of that — and more allegedly happened in Houston, resulting in the filing of JL Salazar Firm v. Friedrich.  An article about the case is here.

I’ve walked lawyers through departures many times, and most states have bar opinions providing step-by-step “instructions” for what can, and cannot be done.  Often lost in the desire to leave, and to make a new start, is the fact that the clients don’t “belong” to anyone.

Many employers allow employees to use email, but have policies that state that the employer is free to monitor email.  Many cases have held that, depending on the facts, the employee cannot assert privilege under those circumstances:  both in claims between employee and the employer and between the employee and a third party.

This doctrine bit another employee recently, in a New York Appellate Division case, Peerenboom v. Marvel Entertainment, LLC, (N.Y. App. Div. March 16, 2017), available here.  The court found spousal privilege and attorney client privilege waived because the employee (the chair of the company) lacked a reasonable expectation of privacy based upon application of the four factors from the leading case.

Any time a lawyer is aware that his client is sending emails from an employer, he should consider whether privilege will be deemed waived, and, conversely, lawyers should look to see if the opponents are doing this, and so waiving privilege.

This is not a new body of law, but it continues to bite people.