Yes, there are still 1404 motions seeking transfer based on convenience, and this one in a case brought by Oyster Optics presents a current recitation of the relevant caselaw before denying the requested relief.
Interesting article by former D.Delaware judge Sue Robinson in Law360 today – Does The Path To The Right Venue Have To Be Narrow? Her subject, and conclusion, is this:
“The mantra seen in more than one venue decision — that venue statutes should not be given a liberal construction — is based on language from cases resolving discrete legal issues not necessarily related to § 1400(b), or policy considerations and not statutory interpretation. Consider as well the context of this discussion — patent litigation, where the property at issue is constitutionally protected, the subject matter involves cutting-edge technology, and the disputes generally are national in scope. To transform the Olberding dicta into a general principle of statutory construction is, I propose, not mandated by Supreme Court precedent and, at least arguably, not consistent with a just determination of a proper venue as selected by an injured patent owner.”
It’s an interesting analysis of some of the cases discussed by the courts in TC Heartland and In re Cray.
I had some people ask me last night at a Christmas party (because this is what we talk about at Christmas parties in Marshall) if Judge Payne’s opinion that I posted on yesterday assigning the burden with respect to marking issues analyzed the case under the Federal Circuit’s December 7 opinion in Arctic Cat v. Bombardier, No. 2017-1475. The answer is yes, it did.
And then there’s that pesky marking statute, 35 U.S.C. § 287(a). Under § 287(a), a patentee or other party selling a patented product under the patent must mark that product with the patent number to provide notice to the public that the product it may be pursuing is patented. (No, there is not a penalty for overuse of the letter “p”. Why do you ask?) If they don’t satisfy the marking statute, damages can be limited to the point that the word “presuit” will henceforth cause the patentholder uncontrolled crying fits. The issue of when a plaintiff has the burden of proving compliance with the marking statute at trial was the subject of an interesting order from across the street earlier today.
They’re not quite the intellectual thrill of a JMOL ruling, but court orders determining whether to enhance damages and award ongoing royalties are where the money is, literally speaking. A recent order awarding ongoing royalties by declining to enhance damages provided more information when enhancement is and isn’t appropriate.
The Intellectual Property Section of the State Bar of Texas has its latest TIPsheet out (Texas IP, get it? Patent lawyer humor). In addition to the chair’s article by Herb Hammond, the issue features an article on Employee – Inventor Remuneration Policies by Sushil Iyer.
This year, the Section’s Patent Committee formed the Patent Policy Subcommittee to provide thoughtful analysis of patent policy issues. The Subcommittee plans to highlight various stakeholder perspectives on policy issues through newsletter articles, with TC Heartland Changes Patent Venue Landscape by yours truly as the inaugural article. The Subcommittee also plans to address patent agent privilege, the constitutionality of inter partes review; patent legislation (e.g., STRONGER Patents Act); and patent eligibility. The Subcommittee is interested in hearing from Section members on these and other issues they would like it to examine.
The subcommittee is chaired by Roshan Mansinghani (firstname.lastname@example.org), with members James Hooper (email@example.com), George W. Jordan III (firstname.lastname@example.org), Cullen Kiker (email@example.com), Michael Smith (firstname.lastname@example.org), and William Ramey (email@example.com).
A copy of my article is attached below. Again, if you have suggestions as far as topics you’d like to see the committee address, just email any one of us and we’ll pass it to Roshan.
A Marshall jury in Judge Roy Payne’s court returned a verdict Thursday in favor of Ericsson in a case brought against TCL Communications.
With In Re Cray clarifying to some extent when venue is proper based on the alleged existence of a regular and established place of business, cases are starting to get thumbs up or thumbs down on pending venue motions at an accelerating pace, providing additional analysis on where in the Cordis/Cray continuum they fit.
Like this one.
Earlier today Judge Rodney Gilstrap granted the motions to intervene in a patent infringement suit brought against a retailer by three suppliers. The motion was granted as an intervention as of right under FRCP 24, but the Court found intervention appropriate even under the standards for permissive intervention.
I’m sorry – I just can’t hear about a court “sitting in equity” without wondering whether everyone needs to reach in their briefcase and find their wigs. (I realize a few may already have them on, and guys, your secret – such as it is – is safe with me). That’s probably not quite what it looked like in Judge Mazzant’s courtroom in Sherman when he pressed “enter” to paste his electronic signature on the opinion in this interesting Lanham Act case dealing with remedies. But a good exposition of the law is always welcome, so let’s see what happened here.