Posts Tagged: "ip litigation"

Looking first at patent litigation, approximately 20,000 companies have been sued for patent infringement in the U.S. since 2010; even your neighborhood restaurant is at risk. A particular global fast food chain is sued, on average, at least once a year for patent infringement. Those suits aren’t over hamburger recipes or kids’ meal toys: They’re over its mobile apps, point-of-sale technologies and other software that have nothing to do with food. Even financial and management consulting firms find themselves in the middle of trade secret, patent and copyright disputes over issues ranging from talent acquisition to website display carousels to website functionality to software the firms themselves developed.

Earlier today the United States Supreme Court issued a decision in WesternGeco LLC v. ION Geophysical Corp., which in a 7-2 decision ruled that a patent owner may recover lost foreign profits for infringement under 35 U. S. C. 271(f)(2). The question decided, as set forth in the opinion by Justice Thomas, writing for the majority, was: “The question in this case is whether these statutes allow the patent owner to recover for lost foreign profits.” Thomas simply answered the question in the opening paragraph saying: “We hold that they do.”

There are many reasons that it makes sense for companies, law firms and other entities with valuable IP assets to utilize legal finance. Most are well understood: The cost of litigation is rising, the IP landscape continues to be ever more fraught with risk, and fewer firms are willing to take IP matters on contingency… However, there’s another, less understood but quite compelling reason for IP litigants to use legal finance: Its positive impact on accounting outcomes. The accounting and financial reporting impact of litigation is clearly a pain point: The 2017 Litigation Finance Survey shows that a noteworthy 76% of in-house respondents identify as a business challenge that “ongoing legal expenses depress financial results.”

Mayer agrees that female patent litigators are under-represented in IP litigation. In fact, women now make up about half of all law students at ABA-accredited schools, but only about 34 percent of attorneys at law firms generally. In addition, the percentage of women partners at law firms is only around 22 percent with only about 18 percent being equity partners. And, studies that have focused on IP practices have found even fewer women attorneys. For example, Law360’s 2016 Glass Ceiling Report found that women make up only about 25 percent of the attorneys at IP boutiques surveyed.

Congressman Lamar Smith (R-TX), has sponsored a bill to amend Rule 11 — H.R. 720. The changes are made to remove the safe harbor provision and make sanctions mandatory. This bill has passed the House. A companion bill — S. 237 — has been introduced in the Senate with no action yet being taken… The proposed changes to Rule 11, if enacted, will have an impact of keeping unrepresented parties out of courts, and make the U.S. courts even more inefficient. It will have an adverse impact on patent owners in patent cases… Given the nature of patent litigation, experience teaches that it is inevitable that whenever a case is disposed of the winner will almost certainly try to shift litigation fees by any means possible, including by invoking Rule 11 sanctions. The parties with strong financial powers will have better chances to get sanction awards.

On June 27, 2017, Crowell & Moring LLP announced the arrival of partners Kent B. Goss and Valerie M. Goo to the firm’s Litigation Group. Goss and Goo are recognized trial lawyers who have a distinguished record in representing clients in commercial litigation and intellectual property matters, including eight- and nine-figure disputes. Their arrival expands on the litigation capabilities of Crowell & Moring’s nationally recognized group to serve clients in California and across the United States.  Both lawyers join the firm from Orrick.

The number of U.S. patents granted for clean energy technology has recently dropped following a near 10-year period of growth. In fact, according to the Brookings Institute, the number of CleanTech patents granted in the country fell by a whopping nine percent between 2014 and 2016. When the economy picks up and things shift again, energy patents should be able to move forward, but for now, the uncertainty with the current Trump administration has brought things to a complete standstill.

There has not been a single quarter in which more than 82 lawsuits involving allegations of infringing at least one design patent have been filed in U.S. district court going back to the first quarter of 2011… From the start of 2012 through the third quarter of 2016, a full 36.4 percent of design patent actions also include a claim of trademark infringement. In other patent cases, there is only a 2 percent overlap between patent and trademark claims in the same case.

The report indicates that IP litigation in U.S. district courts is declining across the board. During 2016’s third quarter, U.S. district courts received a total of 1,127 new patent infringement suits. This was greater than the 960 patent infringement cases filed in the first quarter of this year but it was also the third smallest docket in a single quarter going back to the fourth quarter of 2011, before the terms of the America Invents Act (AIA) of 2011 went into effect. The third quarter of 2015 saw 1,114 patent litigation filed in U.S. courts, so three of the lowest quarters in terms of patent infringement filings since the AIA have come over the past 15 months.

During 2016’s second quarter, plaintiffs filed a total of 1,282 patent infringement cases in U.S. district court. This is a 33 percent increase in the 958 patent cases filed during the first quarter but data suggests that the second quarter tends to see the highest level of infringement cases over all other quarters according to Lex Machina data scientists Brian Howard. “We would expect a jump up from the first quarter,” he said. The first quarter was also a trough for patent infringement cases after last November’s massive number of 847 patent cases, just more than 100 cases less than the entire docket for this year’s first quarter. “The rise we’ve seen puts this year on track with 2011 or 2012 rather than the last two years,” Howard said.

When looking at damages awarded in trademark infringement cases filed since 2005 and terminating between 2009 and 2016, fashion brands have taken in the highest award totals. The top spot here belongs to Parisian fashion brand Chanel, which has been awarded nearly $1 billion dollars from 160 infringement cases resulting in awards out of the 330 cases filed by Chanel. That’s almost double the $523 million awarded to Burberry Limited but its sibling Burberry Limited UK was awarded $416.6 million and those totals were awarded over the course of a combined 12 infringement cases. In terms of damage totals, there’s another steep drop to Gucci of Florence, Italy, which was awarded $207.7 million over the course of 26 cases.

One aspect of the recent Lex Machina report that should jump out to anyone who has closely followed the patent litigation sector over the past few years is that the high percentage of all patent cases filed at the U.S. District Court for the Eastern District of Texas (E.D. Tex.) has dropped significantly. During 2015, E.D. Tex. received 43 percent of all patent infringement cases filed in American district courts. This dropped off steeply to 30 percent, or 291 cases filed, during 2016’s first quarter.

Source Code Review is the most powerful tool in a litigator’s war chest in patent and trade secrets cases. An important consequence of the judicial climate shifting farther away from business methods and closer to technically complex IP is that receiving parties now face a higher burden of proof and subsequently higher legal costs. Not only are receiving parties now required to be more diligent prior to a case filing but they also end up spending extra thousands of dollars reviewing millions of lines of code to successfully formulating their infringement arguments. A significant cost and exposure risk can be avoided simply by a diligent assessment on both sides as to what source code needs to be produced to the receiving party.

Two of the biggest post-production/3D-conversion companies are preparing for battle in a patent infringement suit that is sure to create enemies and allies in the world of film post-production. Prime Focus Creative Services Canada filed a patent infringement suit against Legend3D in the U.S. District Court for the Central District of California. In the March 30, 2015 complaint, Prime Focus World requested a jury trial, an injunction banning Legend3D from performing the patented process, a finding of willful infringement and unspecified monetary damages. Each company has some of the biggest blockbusters in recent memory.