Posts Tagged: "willful infringement"

The technology covered by the ‘073 patent has been incorporated into the series of Bakugan rollable toys developed by Spin Master and released in 2007 in conjunction with the Japanese-Canadian anime adventure series Bakugan Battle Brawlers. According to Spin Master’s complaint, the Bakugan toy series has been a major success for the company, earning $1 billion in sales in just over a decade. Bakugan is a combination of the Japanese words for “to explode” (baku) and “sphere” (gan) and Spin Master’s toys were designed to be spherical, rollable toys which would “explode” into a character when the toy came into contact with a magnetic component. Spin Master’s toys remained popular through a number of Bakugan spin-off series and the company planned to reboot the toy brand for release along with a new anime series to be released in the 2019-20 time frame.

The world’s biggest music streaming service, Spotify, has recently been sued by Wixen Music Publishing for allegedly using thousands of songs without a license and compensation to the publisher. Filed in the United States Federal District Court for the Central District of California, this is a major lawsuit that is only the latest in a string of legal actions that Spotify has faced in the past year. Benjamin Semel, partner at Pryor Cashman LLP, sat down with IPWatchdog to discuss the lawsuit in detail. He told us that this lawsuit speaks to the risk for music services like Spotify of a strategy to seek forgiveness rather than permission. Currently, copyright law gives music services the ability to compel songwriters and publishers to license their songs, but a specific process must be followed.

Along with the willfulness finding, the Federal Circuit also overturned findings of no invalidity on a patent that had already survived multiple reexaminations at the U.S. Patent and Trademark Office in a decision giving patent owners further reason to question whether the Federal Circuit may be more aligned with anti-patent viewpoints… “We hold that a reexamination confirming patentability of a patent claim alone is not determinative of whether a genuine issue of fact precludes summary judgment of no invalidity,” the Federal Circuit’s opinion reads.

Exmark Manufacturing was awarded $24 million in compensatory damages after a jury found that Briggs and Stratton infringed Exmark’s patent on a lawn mower with improved flow control baffles. The award was doubled by the court, after a finding that Briggs and Stratton’s infringement was willful. On appeal, Briggs challenged six holdings: (1) summary judgment that claim 1 was not anticipated or obvious; (2) denial of summary judgment that claim 1 is indefinite; (3) denial of a new trial on damages; (4) evidentiary rulings related to damages; (5) denial of a new trial on willfulness; and, (6) denial of Brigg’s laches defense. The Federal Circuit vacated findings of willfulness and the underlying damages award, remanding to the trial court.

Supporters of the Patent Trial and Appeal Board (PTAB) continue to claim that the facts and figures showing the PTAB is overruling Article III federal district court adjudication on patent validity is fictitious. Ignoring the truth doesn’t make the truth any less correct. Still, in some circles the fiction spewed by those who champion the patent killing fields of the PTAB continues to be persuasive… More alarming, in many of the cases where the PTAB has overruled district court adjudication of the patents there were findings of willful infringement, meaning the defendants (and ulitmately the IPR petitioners) knowingly and intentionally infringed the patents adjudicated to contain valid claims. Notwithstanding, the PTAB, dutifully complied with their role as executioner of patents.

HoloTouch, Inc. filed a lawsuit asserting willful patent infringement claims against Redmond, WA-based tech giant Microsoft Corporation (NASDAQ:MSFT). Filed in the Southern District of New York, the suit alleges that Microsoft has ignored licensing talks with the original inventor of certain holographic interface input technologies which were developed in the mid-1990s even while filing patent applications which cite to patents issued to HoloTouch as prior art.

On November 21st, a jury verdict entered in the Eastern District of Texas awarded $12.3 million in damages to Tinnus Enterprises and ZURU Ltd. in a patent infringement case against major U.S. telemarketing firms Telebrands and its subsidiary Bulbhead.com. The verdict, which also carries a finding of willful infringement of the patents-in-suit, further upheld the validity of patents owned by Tinnus in stark contrast to findings which have issued by the Patent Trial and Appeal Board (PTAB) on those patents.

At issue in the trademark infringement suit is Amazon’s sale of counterfeit wheel center caps bearing distinctive Mercedes-Benz trademarks… Daimler argues that Amazon “facilitates the sale of an exorbitant number of counterfeit and infringing goods” through its platform, counterfeit activity which has increased since 2015 when the company began inducing Chinese manufacturers to list on its U.S. and European e-commerce platforms. Daimler notes that lawsuits over counterfeit products have been filed against Amazon by well-known consumer brands including a February 2017 suit filed by French luxury goods brand Chanel against the American e-commerce giant.

The reality created by eBay in light of the AIPA is simple: If you scrape an invention off the USPTO website and massively commercialize it, you get to keep it. Ubiquity has become a defense. How odd that ubiquity caused by your own initial theft becomes an impenetrable shield in patent infringement litigation… Of course, not all infringers should be liable for willful patent infringement. Some infringers are not the experts in the field. Some are users of technology produced by the experts. If you are a small coffee shop and you purchase a router, you are not an expert and you are not willfully infringing. You just bought a product that some infringer sold you and you reasonably believed could be lawfully purchased and used. But if you are the company producing that router, it must be assumed that you are willfully infringing.

On Monday, October 16th, the Internet security company VirnetX (AMEX:VHC) of Zephyr Cove, NV, announced the results of a patent litigation campaign it had pursued against Cupertino, CA-based consumer tech giant Apple Inc. (NASDAQ:AAPL). According to a press release issued by VirnetX, the Eastern District of Texas increased the damages to be paid by Apple from $302.4 million in a prior jury verdict up to nearly $440 million for Apple’s infringement of patents covering secure communications in applications like FaceTime.

Idenix Pharmaceuticals LLC v. Gilead Pharmaceuticals, Inc., C.A. No. 14-846-LPS (Delaware Dist. Court, Sept 22, 2017) (“Idenix v. Gilead”), is a good example of the exercise of such discretion by a district court.  Rich in facts, the case is suitable for the application of the flexible contextual standards the Supreme Court showed preference for in Halo.  Also, the case involves balancing the public good of promoting innovation by deterring willful infringement against the public good of facilitating imitation and refinement through imitation.  It is apparent from the Court’s reasoning that it was being very mindful that without the particular “refinement through imitation,” involved in the case, a life-saving cure for hepatitis C would not have been discovered.  Enhanced damages were not awarded.

In one of the first district court cases to apply Halo, the Eastern District of Pennsylvania was confronted with a defendant who obtained a noninfringement opinion sometime around the final day of a 12 to 18 month project. See: Dominion Res. Inc. v. Alstom Grid Inc., No. CV 15-224, 2016 WL 5674713 (E.D. Pa. Oct. 3, 2016) (holding that the defendant’s state of mind on the final day of 12-18 month project was far too late to be defense to willfulness) (appeal pending). The court ruled that opinion letters obtained so long after infringement began, even if still during the period of infringement, did not absolve the defendant of willful infringement under a subjective recklessness standard. Shortly thereafter, the District of Delaware was confronted with a case in which the defendant obtained a noninfringement and invalidity opinion well before litigation, and the defendant even modified designs of the products at issue to conform to recommendations contained therein…

The standards for overturning a jury verdict and Court’s award of enhanced damages are high. The legal standard regarding lost profits is not limited to one third party sale and courts have discretion to determine if substantial evidence supports a finding of lost profits.

As Stone Creek deepens the divide among circuits, the issue of whether willfulness is required for disgorgement of a defendant’s profits in trademark cases is ripe for Supreme Court review… The Stone Creek decision solidifies the Ninth Circuit’s position that willfulness is required for a recovery of profits in trademark cases. This approach is consistent with equitable principles because disgorgement is generally used to deter culpable behavior and deterrence would not be necessary, and would not work, for an innocent infringer. Depending on the facts of a case, trademark law provides sufficient remedies to prevent a likelihood of confusion and compensate a plaintiff for its losses—beyond a defendant’s profits—like an injunction, actual damages and/or corrective advertising. An award of profits can be reserved for willful infringers, without depriving a plaintiff of remedies for non-willful infringement.