About Cara Fry

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So far Cara Fry has created 11 blog entries.

“Divide and Conquer” Approach Inappropriate for Assessing Trade Dress Functionality

The court denied defendant's motion for summary judgment of noninfringement and rejected the defendant's argument that plaintiff's trade dress was invalid because some elements were functional. "Defendant urges the Court to dissect Plaintiff’s trade dress and examine its individual elements. On the contrary, 'Trade dress refers generally to the total image, design, and appearance of a product and may include features such as size, shape, color, color combinations, texture or graphics.' . . . This court does reject the Defendant’s divide and conquer approach in this instance, and will deny summary judgment on the issue of functionality. Contrary to Defendant’s [...]

2017-09-25T20:26:48+00:00 September 25th, 2017|Trademark|

Expert Testimony Concerning Mental Thought Processes of Examiner Excluded

The court granted defendants' motion to exclude the testimony of plaintiff's patent law expert regarding what a patent examiner would have done under different facts because it was unreliable speculation. "Defendants . . . seek to exclude portions of [the expert's] Report that discuss whether an examiner would have considered certain evidence, if presented, what an examiner would have done under an alternative set of facts, all as unreliable speculation. . . . In Barry v. Medtronic, the court excluded similar testimony under Rule 702: . . . '[the expert’s] resume fails to establish his education, training, or experience in [...]

2017-09-25T20:25:55+00:00 September 25th, 2017|Patent|

Minimum Statutory Damages Awarded in BitTorrent Case Due to Minimal Economic Damages to Plaintiff

Adopting in part the magistrate judge's recommendation, the court partially granted plaintiff's motion for default judgment, awarding the statutory minimum in damages. "This court agrees with the district courts of Western Washington, Oregon, and Northern California that awarding the minimum statutory damages of $750 adequately compensates copyright holders of movies for a defendant’s improper downloading and sharing of a movie over BitTorrent. In this case, a high definition digital copy of [the work in suit] can currently be purchased for $14.99. . . . Because of the minimal cost of downloading [the work] legally, because of how difficult it is [...]

2017-09-25T20:24:37+00:00 September 25th, 2017|Copyright|

Antitrust Class Action Allowed to Proceed Due to Arbitration Agreement’s Unconscionability

The court denied defendant's motion to compel arbitration because the agreements in question, in addition to being contracts of adhesion, were procedurally unconscionable. "At the time they first contracted with [defendant, two plaintiff au pairs] were 19 and 22-years old, respectively. . . . Both were foreigners, both spoke English as a second language, and neither had experience with contracts or contract law. . . . Though both testified that they read the contract before signing, neither understood what the word 'arbitration' meant. It is beyond dispute that neither [of two plaintiff au pairs] was afforded an opportunity to negotiate [...]

2017-09-25T20:23:25+00:00 September 25th, 2017|Antitrust|

Three New Litigation Libraries

Since 2008, we’ve delivered more than 16 million copies of the patent Docket Report to attorneys, judges, and other litigation professionals.  Today, more than 14,000 professionals receive the Patent Docket Report every morning, and they have created more than 90,000 custom daily alerts.  We are pleased to announce that these popular features are now available for trademark, copyright and antitrust practitioners! The new practice areas include: The Docket Report - New case summaries with parties, attorneys, and law firms, with free links to the docket sheet and pleadings.  The Docket Report also includes professionally curated summaries of every significant decision [...]

2018-01-17T16:33:55+00:00 September 25th, 2017|Press|

Not all analytics are created equal.

Jonathan Germann recently posted an article to the AALL Computing Services Special Interest Section website comparing two legal analytics platforms.  The article includes a great list of questions/topics researchers should investigate before relying on an analytics service. Read more here:

2017-09-25T17:59:28+00:00 September 25th, 2017|Press|

Voluntary Dismissal of Lanham Act Claims Does Not Justify Award of Attorney Fees

The court denied defendant's motion for attorney fees because the case was not exceptional. "After considering the totality of the circumstance - including the 'take no prisoners' approach used at times by both sides in this case - the court concludes this was not an exceptional case within the meaning of § 1117(a) and that no attorney fees should be awarded. The following factors, among others, weigh against such an award and are sufficient to merit denial of the motion. [Plaintiff] alleged two federal trademark claims (as well as common law unfair competition) among the thirteen claims in its initial [...]

2017-09-13T15:49:02+00:00 September 13th, 2017|Trademark|

Qualcomm Denied World-Wide Antisuit Injunction Against Apple

The court denied defendant's motion for an international anti-suit injunction because the parties and issues in plaintiff's foreign suits were not the same as the instant suit. "[Plaintiff] has asserted anticompetitive-based causes of action under Article 102 of the Treaty of the Functioning of the European Union, Article 54 of the Agreement on the European Economic Area, Section 18 of the U.K. Competition Act of 1998, Japan’s Antimonopoly Act, the Chinese Anti-Monopoly Law, and the Taiwan Fair Trade Law. [Defendant], however, has not even attempted to explain . . . why this Court’s findings on [defendant's] FRAND obligations to [the [...]

2017-09-13T15:34:56+00:00 September 13th, 2017|Antitrust, Docket Report|

Totality of Confusion Factors Weighs Against Attorney Fees Award Despite Willful Infringement Verdict

Following a verdict of willful infringement, the court denied the plaintiff's motion for an award of attorney fees of $4,339,947.76 because the case was not exceptional. "This finding [of willfulness] by the jury . . . does not automatically render this case 'exceptional' within the meaning of the Lanham Act. The court must examine the 'totality of the circumstances' to determine if a case is 'exceptional.' Defendants offered evidence relevant to the Sleekcraftfactors at the second trial, including but not limited to, evidence demonstrating: [plaintiff's] mark was not strong because it was not well known; Vodka and tequila are not [...]

2017-09-12T12:24:24+00:00 September 12th, 2017|Docket Report, Trademark|

Arguments in IPR Result in Prosecution Disclaimer Estopping Infringement Claim​

The magistrate judge recommended granting defendant's motion for summary judgment that plaintiff's infringement claims were estopped due to plaintiff's prosecution disclaimer in its response to intervenors' petition for inter partes review. "Regardless of whether an examiner or panel agreed with the patentee’s statement, the statement itself may result in disclaimer because it constitutes a representation to the public about the scope of the patent. [Plaintiff's] statements to the Patent Office in its preliminary response were clear and unmistakable. [Plaintiff] repeatedly emphasized that the TR 23.809 standards document does not describe a GGSN that preserves the PDP context after receiving an [...]

2017-09-12T13:42:03+00:00 September 12th, 2017|Docket Report, Patent|