Docket Report

Antitrust Claims Based on Patent Misuse, Rather Than Patent Invalidity, Not Compulsory Counterclaims in Underlying Infringement Suit

The court denied defendants' motion to dismiss plaintiffs' antitrust claims and determined plaintiffs' claims were not compulsory counterclaims in a prior patent suit between the parties. "The Second Circuit Court of Appeals has drawn a distinction between antitrust claims that rely on misuse of a valid patent as opposed to antitrust claims based on patent invalidity. . . . [Plaintiffs'] antitrust claims do not implicate the validity of the ‘886 patent. Instead, [plaintiffs'] claims that defendants conspired to deceive the USP and relies on a theory of misuse of a valid patent. [Defendants'] insistence that the patent misuse/patent validity distinction [...]

2018-03-23T11:34:02+00:00 March 23rd, 2018|Antitrust, Docket Report|

Despite Jury Verdict of Infringement and $351,000 Statutory Damages Award, Prevailing Party Denied Attorney Fees

After a jury trial where plaintiff prevailed on its infringement claim, the court denied plaintiff's motion for attorney fees because plaintiff did not obtain a high degree of success under § 505. "Plaintiff argues that [the degree of success] factor weighs in its favor because the jury found infringement and awarded $460,800 statutory damages on all thirty-five copyrighted works. Plaintiff also argues that it reached a high degree of success because the Court granted its motion for partial summary judgment as to Defendant's DMCA defense and denied Defendant's motion for summary judgment. According to Plaintiff, even though the Court reduced [...]

2018-03-23T11:30:02+00:00 March 23rd, 2018|Copyright, Docket Report|

Unworkable Interplay Between Court and PTO Proceedings Requires Stay of Litigation

The court sua sponte stayed plaintiff's patent infringement action pending ex parte reexamination to conserve judicial resources. "⁠[H]appening essentially in real time, there are accusations of perjury being submitted to the PTO based on declarations and arguments before this Court, and there are arguments of inequitable conduct being submitted to this Court based on accusations of perjury before the PTO. The questionable and challenging interplay between these two proceedings has become unworkable. Continuing in this tandem fashion will only ensure that even more judicial and agency resources are wasted. . . . It’s become apparent that there’s no chance of [...]

2018-03-23T11:26:02+00:00 March 23rd, 2018|Docket Report, Patent|

Photograph of Asserted Trade Dress Insufficient to Describe the Elements of the Trade Dress

The court granted defendant's motion to dismiss plaintiff's trade dress infringement claim because plaintiff failed to sufficiently identify the elements of its dress. "Plaintiff argues that Defendants have copied virtually every detail of its trade dress in order to create a near replica, which is readily ascertainable by the description and photographs found in the Amended Complaint. . . . McCarthy on Trademarks and Unfair Competition states that images are not sufficient to identify a trade dress and 'if plaintiff fails to properly articulate the elements of its trade dress, the court can dismiss on a Rule 12(b)(6) motion.' . [...]

2018-03-23T11:24:03+00:00 March 23rd, 2018|Docket Report, Trademark|

Expert’s Flawed Royalty Rate Analysis Requires New Trial on $75 Million Verdict

Following a jury verdict of $75 million, the court granted defendant's motion for new damages trial because the application of plaintiff's survey expert's results by plaintiff's damages expert was unreliable. "⁠[Plaintiff's damages expert] directly translated the roughly 28% of survey respondents who allegedly would not have bought [defendant's] phone without the infringing feature to [defendant's] profit in an effort to determine the potential 'at-risk' profit. . . . [The expert] did not consider the numerous patented features on the accused phones, many of which a consumer would consider essential, assuming [another expert's] survey results were extrapolated. . . . [He] [...]

2018-03-22T15:22:02+00:00 March 22nd, 2018|Docket Report, Patent|

FTC Act § 13(b) Not Subject to “Likelihood of Reoccurrence” Standard

The court granted defendant's motion to dismiss the FTC's complaint and declined to impose a likelihood of reoccurrence standard for whether a party "is about to violate" § 13(b) of the FTC Act. "The FTC cites FTC v. Evans Products Co., 775 F.2d 1084 (9th Cir. 1985) and FTC v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009), among others. In my opinion, the FTC's reliance on those cases is misplaced. While the courts in Evans Products and Accusearch applied a likelihood of recurrence standard, they did so in deciding whether a district court had properly granted or denied injunctive [...]

2018-03-22T12:49:02+00:00 March 22nd, 2018|Antitrust, Docket Report|

Counsel’s Abdication of Representation Responsibilities Warrants Rule 60 Relief from Default Judgment

The court granted defendant's motion for relief from the court's default judgment because defendant demonstrated extraordinary circumstances led to default. "While it is true that 'the neglect of an attorney acting within the scope of his or her authority is attributable to the client,' such is not the case here. [Defendant] hired [his counsel] to defend him in this action. Instead, the record shows that [counsel] worked on this case for a mere two months before abdicating his responsibilities toward [defendant] after a half-hearted attempt to settle the matter. It cannot be said that these actions were within the scope [...]

2018-03-22T12:44:02+00:00 March 22nd, 2018|Docket Report, Trademark|

Links to Terms of Use on Website Pages Deemed “Conveyed in Connection With” Pages’ Photos​ Under DMCA

The court denied defendant's motion for summary judgment that it did not commit a DMCA violation and rejected defendant's argument that its website's Terms of Use were not "conveyed in connection with" plaintiff's photographs under 17 U.S.C. § 1202(c). "Defendant cites several cases in support of its assertion that a standard copyright message at the bottom of a webpage is not 'conveyed in connection with' content at the top of a webpage. . . . However, the cases the [court in the most analogous case proffered by defendant] cites to in support of the statement that courts 'have generally required [...]

2018-03-22T12:41:02+00:00 March 22nd, 2018|Copyright, Docket Report|

Agency’s Non-Regulatory Function and Political Accountability Negate Need for Active Supervision to Receive Parker Immunity

The court granted a state agency's motion to dismiss plaintiff's Sherman § 1 claims because the agency, the Virginia Department of Medical Assistance Services (DMAS), was entitled to Parker immunity. "⁠DMAS is not subject to the active supervision requirement. The primary mission of DMAS is the provision of medical assistance services and not the regulation or licensure of members of the dental profession. Moreover, DMAS is politically accountable. It is overseen by the Secretary of Human Resources and the Director of DMAS, who is appointed by the Governor and subject to confirmation by the General Assembly. To the extent the [...]

2018-03-21T13:54:02+00:00 March 21st, 2018|Antitrust, Docket Report|

Counsel’s Contingency-Fee Representation of ​Registrant Does Not Preclude Counsel’s Expert Testimony

The court partially denied defendants' motion to exclude an expert's testimony and rejected defendants' argument that the expert's representation of plaintiffs automatically disqualified the expert from testifying. "As the attorney who assisted [plaintiffs] with the registration of the copyrights at issue in this case, the Court is satisfied that [the expert] has specialized knowledge of the requirements and procedures for registration under the Copyright Act. . . . Defendants argue that because [the expert] is representing [plaintiffs] on a contingency basis, he is disqualified from testifying in this case. . . . [However,] [i]n the Court’s view, based on review [...]

2018-03-21T13:50:02+00:00 March 21st, 2018|Copyright, Docket Report|