Is a Partner with Goodwin‘s IP Litigation Group where he focuses his practice on patent and other IP litigation. Mr. Frederickson’s practice includes all phases of litigation, from pre-suit investigation and counseling through trial and appeal. He has represented both plaintiffs and defendants in federal courts throughout the country, including the Eastern District of Texas, the Eastern District of Virginia, the District of Delaware, the Southern District of New York, the Western District of Pennsylvania, and the District of Massachusetts. Mr. Frederickson has represented clients across a variety of fields and industries, including smartphone applications, voice-over-IP telephony, cellular networks, electronic medical records, Ethernet routing and Power-over-Ethernet switches, label printers and printer software, and pharmaceuticals.
For more information or to contact Mr. Frederickson, please visit his Firm Profile Page.
Much has been written about the uncertainty in U.S. patent law concerning laws of nature, natural phenomena, and abstract ideas following the Supreme Court’s decisions in Mayo v. Prometheus and Alice Corp Pty Ltd v. CLS Bank Int’l. A recent decision from the Enlarged Board of Appeal at the European Patent Office (the Enlarged Board), however, demonstrates that the United States is not alone in grappling with issues surrounding patent eligibility. In the case of genetically modified plants and animals, questions arise on where to draw the line between human invention and biological processes. Earlier this year, the Enlarged Board reversed a 2015 decision that had held that product-by-process patents could be sought for genetically modified plants and animals despite a patent exclusion for “essentially biological processes.”
Five years ago today, the Supreme Court issued its decision in Octane Fitness LLC v. ICON Health & Fitness, Inc., empowering district courts to award attorneys’ fees in those patent case that “stand out from others.” Last year, we crunched the numbers and explored several notable trends that have emerged post-Octane Fitness. For that article, we looked at nearly 420 decisions spanning nearly four years. In the last 14 months, district courts have been asked to declare patent cases exceptional another 165 times. Below, this article revisits the statistics and takes a deeper look at the line between zealous advocacy and litigation misconduct that can serve as the basis of an exceptional case determination.
On February 2, 2018, in Sophos Inc. v. RPost Holding, Inc., Judge Denise Casper became the latest judge to declare a case “exceptional” under 35 U.S.C. § 285 and award the declaratory judgment plaintiff, Sophos, the opportunity to recover its attorneys’ fees. The court’s decision in Sophos comes as the four year anniversary of the Supreme Court’s landmark decision in Octane Fitness v. ICON Health & Fitness rapidly approaches. After Octane Fitness, many predicted a large uptick in the number of fee-shifting motions filed and their success rate in patent cases. This article explores the fallout from Octane Fitness after four years on the books and any trends that have emerged in the courts.