Expert’s Secondary Considerations Opinions Struck Due to Inadequate Discovery Response

The court granted defendant's motion to strike portions of the report of plaintiff's infringement expert regarding previously undisclosed secondary considerations of nonobviousness. "⁠[Plaintiff] argues that [defendant's] interrogatory was premature because it asked for expert opinion, but [plaintiff] was at least obligated to provide the factual basis for any secondary considerations, and include this factual basis in the interrogatory response itself. . . . The important point, in the Court’s view, is that [plaintiff] not only failed to disclose the factual basis for any secondary considerations, but failed to even disclose any reliance on secondary considerations at all. The prosecution history [...]

2018-03-02T16:09:03+00:00 March 2nd, 2018|Press|

Bare ​Allegation that Defendant Executive “Controls” Trade Association Does Not Support Sherman § 1 Group Boycott Claim

The court granted defendant's motion to dismiss plaintiff's Sherman § 1 group boycott claim because plaintiff failed to sufficiently plead an agreement to restrain trade. "⁠[Plaintiff] names two [pharmacy benefit manager] executives, including one from [defendant], that serve on the . . . board of directors [of a trade association]. This presence is characterized by [plaintiff] as 'controlling' the association. [T]his allegation falls short of the sufficiency required by Twombly. The allegation lacks temporal context and is not, in and of itself, indicative of any anticompetitive influence." Park Irmat Drug Corp. v. Express Scripts Holding Company et al, 4-17-cv-00979 (MOED [...]

2018-02-26T12:53:02+00:00 February 26th, 2018|Press|

Nativity-Themed 3D Cards Overcome Scènes à Faire and Merger Defenses at Pleadings Stage​

The court denied defendant's motion to dismiss plaintiff's infringement claim as to a nativity-themed set of the parties' three-dimensional card designs and rejected defendant's merger and scènes à faire arguments. "⁠[Defendant] argues that there likely are 'only a limited number of ways of expressing the idea' of a manger or nativity scene. That is, as [defendant] suggests, a nativity scene is virtually certain to include Baby Jesus, Mary, Joseph, wise men, and livestock inside a barn-like structure, as well as other accoutrements like the Star of Bethlehem. Accordingly, 'the burden of proof is heavy on the plaintiff who may have [...]

2018-02-26T12:46:03+00:00 February 26th, 2018|Press|

Description of Shoe Strap, Raised Heel, and Grooved Sole Does Not Support Allegation of Non-Functionality

Overruling plaintiff's objections to the magistrate judge's recommendation, the court granted defendant's motion to dismiss plaintiff's trade dress infringement claim because plaintiff failed to sufficiently allege its claimed dress over three styles of shoes was non-functional. "⁠[As] detailed in Judge Locke’s Report, no specific facts are plead that plausibly support the non-functionality of the claimed trade dress. In fact, features such as the strap, the raised heel appendage and woven uppers are functional in that such features help the user put them on and keep them on; similarly, grooved soles provide traction for the wearer. Moreover, the ornamental features of [...]

2018-02-26T12:43:03+00:00 February 26th, 2018|Press|

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|