Philip Brooks' Patent Infringement Updates

Rule 11 Sanction Denied Despite Plaintiff's Claim Construction And Infringement Theories That "Stretch[ed] The Bounds Of Reasonableness"

The following is excerpted from a November 30, 2011 article by Gregory S. Cordrey of Jeffer Mangels Butler & Mitchell LLP published by Mondaq:

In three patent cases brought by the same plaintiff, Raylon LLC, against numerous defendants, Judge Davis of the Eastern District of Texas denied Rule 11 sanctions and motions for attorneys' fees under Section 285 of the Patent Statute, and Section 1927 of Title 28.

In denying Defendants' subsequent motion for Rule 11 sanctions, the Court stated its concern "about plaintiffs who file cases with extremely weak infringement positions in order to settle for less than the cost of defense and have no intention of taking the case to trial." The court further stated that "[w]here it is clear that a case lacks any credible infringement theory and has been brought only to coerce a nuisance value settlement, Rule 11 sanctions are warranted." On the other hand, the court countered that "there may be legitimate cases where a plaintiff settles with a few smaller defendants in an effort to raise needed capital in order to proceed to trial against the remaining major defendants. In those situations, plaintiffs typically settle with smaller defendants and proceed to trial against larger defendants who have larger damage potential. Such is a legitimate trial strategy. Moreover, the Court does not want to discourage early settlement of some or all defendants. This Court has always taken a favorable view of business resolutions to legitimate commercial disputes when those settlements are based on the case's merits and risks."

Read the full article here.

International Information Conference on Search, Data Mining and Visualization

Christoph Haxel shared the following information with the public Patent Landscaping Innovations group on LinkedIn:

The programme for the April 2012 International Information Conference on Search, Data Mining and Visualization (II-SDV) is now complete and announced today. This conference focused on Tools for Intelligence will take place in Nice, 16-17 April 2012 and the programme features 23 very excellent speakers.
 
We are proud of the conference, and urge you to take a look via the link at www.ii-sdv.com The super-early bird price for registrations is valid until 15 December 2011.

Patent Settlement Agreements Remain a Focus in the U.S. Congress

Alan Klein, partner in the Trial Practice Group of Duane Morris LLP, wrote the above-titled article for this month's INNsight newsletter at GenericsWeb. The following is excerpted from the article:

Patent litigation settlement agreements between brand and generic drug manufacturers are receiving increased scrutiny in the United States Congress with the introduction of legislation with bipartisan support. The proposed Bills seek to curtail such agreements and get generic drugs to market faster and end what critics have complained are “pay for delay” deals benefiting both brand patent holders and generic drug company challengers. As noted below, however, there is a flip side to this controversy which the generic drug industry has highlighted in its public responses to this legislation. Opponents point to the risks of litigation and to the broader benefits accruing to consumers, health insurance companies and government third-party payors from such settlement agreements.

The Preserve Access to Affordable Generics Act, introduced last January in the current Congressional term, would establish a presumption that such patent suit settlement agreements are anticompetitive if the generic first filer receives anything of value or agrees to limit or forego research, development, manufacturing, marketing or sales of the generic drug for any period of time.

A second Bill introduced earlier this month, titled the Fair and Immediate Release of Generic Drugs Act (the “FAIR Generics Act”), would prevent brand drug companies from so-called “parked exclusivities” – providing generics which are not first-to-file with the right to market a generic equivalent of the brand drug during the first filer’s 180-day exclusivity period.

Read the full INNsight article here.

Steven Mitby Named Partner in Houston's AZA Law Firm

The following is excerpted from a November 17, 2011 AZA press release published at Market Watch:

Intellectual property and complex commercial litigation attorney Steven Mitby has been named a partner in Houston's Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C., a dynamic boutique law firm also known as AZA.

"In just the last year alone, Steve helped win a $392 million patent infringement claim, an important appellate victory for Continental Airlines pilots in an ERISA case, and an oil & gas dispute where he was asked to come in at the last minute," says Joe Ahmad, one of the founding partners of AZA.

Named to the 2011 Texas Rising Stars list published in Texas Monthly magazine, Mr. Mitby recently helped Austin-based Versata Software Inc. win a $392 million patent infringement verdict in the U.S. District Court for the Eastern District of Texas. In July, he was named Appellate Lawyer of the Week by Texas Lawyer after helping his clients avoid millions of dollars in liability following his arguments before the 5th U.S. Circuit Court of Appeals.

Read the full press release here.

Patent Owners Receive Positive Injunction News

The following is excerpted from the article titled, "New Encouragement for Patent Owners Seeking Injunctions After Winning an Infringement Suit" by Meredith L. Ainbinder of Sunstein Kann Murphy & Timbers LLP published in its November 2011 IP Update:

Uncertainty continues to linger around a patent owner’s ability to obtain a permanent injunction after succeeding in proving infringement at trial. While a monetary award compensates the patent owner for the defendant’s past infringement, only an injunction stops future infringement.

In Robert Bosch LLC v. Pylon Manufacturing Corp.,the Federal Circuit ruled that permanent injunctions are not awarded as a matter of course, but at the same time took a district court to task for not granting such relief to Bosch, a large supplier of automotive equipment. Whether the ruling portends an era of more easily obtained injunctions depends on how district court judges read between the lines of Bosch.

Read the full article here.

International Comparative Legal Guide to Patents 2012

Research and Markets has published the above-titled book that covers: patent enforcement & amendment; licensing; patent term extension; patent prosecution & opposition; border control measures; antitrust law & inequitable conduct in 29 jurisdictions.

The table of contents:

General Chapter:

1 The Use of Declaratory Relief Across the World – Gerry Kamstra & Christian Harmsen, Bird & Bird LLP

General Chapter:

1 The Use of Declaratory Relief Across the World – Gerry Kamstra & Christian Harmsen, Bird & Bird LLP

Country Question and Answer Chapters:

2 Australia Griffith Hack Lawyers: Wayne Condon & Eliza Mallon
3 Austria Fiebinger Polak Leon Attorneys-at-Law: Constantin Kletzer & Kristina Hesse
4 Belgium Baker & McKenzie: Pierre Sculier & Elisabeth Dehareng
5 Brazil Momsen, Leonardos & Cia: Otto Banho Licks & Marcela Trigo de Souza
6 China CCPIT Patent and Trademark Law Office: Chuanhong Long & Lili Wu
7 Finland Roschier, Attorneys Ltd.: Rainer Hilli & Johanna Flythström
8 France Armengaud & Guerlain: Catherine Mateu
9 Hungary Danubia Patent & Law Office: Michael Lantos
10 India Subramaniam, Nataraj & Associates, Patent & Trademark Attorneys: Hari Subramaniam & Ritu Gandhi
11 Ireland Matheson Ormsby Prentice: Alistair Payne & Gerard Kelly
12 Israel Ehrlich & Fenster: Dr. Gal Ehrlich & Roy S. Melzer
13 Italy Avvocati Associati Franzosi Dal Negro Pensato Setti: Vincenzo Jandoli
14 Japan Nakamura & Partners: Yoshio Kumakura & Yuriko Sagara
15 Luxembourg Philippe & Partners: Emmanuelle Ragot
16 Macedonia PEPELJUGOSKI LAW OFFICE: Dr. Valentin Pepeljugoski
17 Mexico Olivares & Cía.: Alejandro Luna & César Ramos, Jr.
18 Netherlands Van Doorne N.V.: Bas Pinckaers & Ricardo Dijkstra
19 Norway Wikborg, Rein & Co.: Gunnar Meyer & Ingvild Hanssen-Bauer
20 Pakistan Bharucha & Co.: Qamar Uddin & Shumaila Ali
21 Philippines SyCip Salazar Hernandez & Gatmaitan: Enrique T. Manuel & Vida M. Panganiban-Alindogan
22 Poland Patpol: Katarzyna Karcz & Bartlomiej Kochlewski
23 Spain Gomez-Acebo & Pombo: Eduardo Castillo & Gonzalo Ulloa
24 Switzerland Schellenberg Wittmer: Andrea Mondini & Philipp Groz
25 Taiwan TIPLO Attorneys-at-Law: J. K. Lin & H. G. Chen
26 Thailand Tilleke & Gibbins: Nandana Indananda & Vasan Abe Sun
27 Ukraine Vasil Kisil & Partners: Oleksiy Filatov & Tetiana Kudrytska
28 United Kingdom Bird & Bird LLP: Gerry Kamstra
29 USA Kirkland & Ellis LLP: Ken Adamo & William Cory Spence
30 Vietnam Pham & Associates: Pham Vu Khanh Toan

A sample is available by registering here.

Patent Infringement Appeals Up 7.5%

The following chart obtained from the United States Court of Appeals for the Federal Circuit shows that the number of patent infringement appeal filings increased to 426 in Fiscal Year 2011. This is the highest level since FY2006 and a 7.5% increase over the average of the past four fiscal years.

Additional statistics of the United States Court of Appeals for the Federal Circuit are available here.

Patent Dispute Causes "Tickle Lipo" to End Production

The following is excerpted from a November 11, 2011 MicroAire press release published by PR Newswire:

Using the term "nutation" to describe its product's reciprocating action was not enough for "Tickle Lipo" to avoid a patent dispute with MicroAire Surgical Instruments.

MicroAire, which owns patents on Power Assisted Liposuction (PAL), received a letter last month from attorneys representing Euromi, maker of "Tickle Lipo," in which the company says it is prepared to discontinue sales of its Lipomatic device no later than the last week of December 2011. This decision by Euromi comes as a direct result of patent-infringement claims made by MicroAire against Euromi, and despite Euromi's formal denial of those claims.

MicroAire has multiple patents covering reciprocating-cannula liposuction, which it employs in its popular PAL device. The term "reciprocating" covers any back-and-forth movement, including the so-called "nutating" movement used by Euromi's Lipomatic device, which is also known by the name "Tickle Lipo."

According to a 2011 survey of over 1,700 surgeon-members of the American Society for Aesthetic Plastic Surgery (ASAPS), MicroAire's PAL is the most widely used and most preferred alternative to manual liposuction. The survey also indicates that fat removal technologies such as laser and mesotherapy were associated with a disproportionately higher rate of complications, compared with PAL.

Read the full press release here.

China Awakening Patent Power

The following is excerpted from a November 11, 2011 article by Jameson Berkow published by The Gazette:

Those who deride China for failing to take patent protection seriously might just be provoking a sleeping dragon.

For China, experts argue, has intentionally maintained a lax intellectual property enforcement regime for decades, waiting until its internal invention industry had become strong enough to warrant something more robust.

Soon more patents will be filed in Beijing each year than in Washington D.C. and Chinese entrepreneurs are stealing the attentions of Silicon Valley pundits and investors. Many believe the Chinese patent dragon is beginning to show signs of stirring. Once that happens, experts say, foreign firms looking to do business there will need to worry less about losing IP to China's infamous underground economy and more about losing an IP infringement case in a Chinese courtroom.

"So what they did was have a regime in place where they were free to copy, to steal ideas from other countries."

Nearly three decades later, the result is a Chinese version of every major western invention that exists everywhere else: Weibo is China's Twitter and Baidu is China's Google, both are protected under Chinese patent law.

"In Canada, you have maybe 60 patent infringement cases filed per year, maybe 80, and in the United States there are 3,000," said Mr. Elmer. "China now has more than 3,000 ... probably closer to 4,000 now."

Read the full article here.

Entrepreneurial Business Law Clinic to Launch at The Ohio State University

I heard yesterday from Lee Thomason of Spalding & Thomason that he has accepted a full-time position as Assistant Clinical Professor at the Moritz College of Law at The Ohio State University, where he will launch its new Entrepreneurial Business Law Clinic.

The Ohio State University Moritz College of Law Entrepreneurial Business Law Clinic (EBLC) was created to serve start-up and emerging businesses that need transactional legal assistance. The clinic will begin operation in January 2012. The College’s seventh clinic, EBLC will benefit students by providing them the opportunity to represent entrepreneurs and their businesses while simultaneously supporting and furthering Ohio’s mission of sustained economic growth.

Students enrolled in the EBLC will assist young companies – not ready or able to hire attorneys – on a pro bono basis and will offer legal service on matters such as business structure and formation, taxation, employment contracts, and intellectual property issues.

Third-year Moritz students will enroll in the class beginning in January 2012.

Congratulations to Lee! Read more here.