patent litigation – Overlawyered

Justice Sotomayor on administrative law’s “stacked deck”

Walter Olson — Tue, 26 Feb 2019 11:02:51 +0000

Last week the Supreme Court heard oral argument in Return Mail Inc. v. USPS, posing the patent law issue (to quote SCOTUSBlog) of “Whether the government is a ‘person’ who may petition to institute review proceedings under the Leahy-Smith America Invents Act.” On pp. 30-31 of the transcript, Justice Sonia Sotomayor referred favorably to the Cato Institute’s brief on the unique dangers that can arise when federal agencies litigate before tribunals operated by federal agencies.

And that wasn’t even the best part! This was, from her comments immediately afterward, on the failure of the law to specify whether the word “person” includes the government:

It does seem like the deck is stacked against a private citizen who is dragged into these proceedings. They’ve got an executive agency acting as judge with an executive director who can pick the judges, who can substitute judges, can reexamine what those judges say, and change the ruling, and you’ve got another government agency being the prosecutor at the same time.

In those situations, shouldn’t you have a clear and express rule?

Tags: administrative law, Cato Institute, patent litigation, Sonia Sotomayor

Justice Sotomayor on administrative law’s “stacked deck” is a post from Overlawyered - Chronicling the high cost of our legal system

Transferring drug patents to Indian tribes, cont’d

Walter Olson — Sat, 18 Nov 2017 19:48:43 +0000

More on the controversy that erupted in September: By ruling the patent invalid due to obviousness, a federal judge may have mooted Allergan’s innovative move to transfer its patent over a successful dry-eye drug, Restasis, to the St. Regis Mohawk tribe. “The Restasis patents are at the center of a novel legal strategy that involves using Native American sovereignty rights to avoid certain types of patent reviews, called inter partes reviews, or IPRs….But this ruling won’t be the last time sovereign immunity is used to defend patents.” [Joe Mullin, ArsTechnica] And for something contrarian, Joanna Shepherd at Truth on the Market offers context on the bypassing of inter partes reviews, saying IPR is a process itself unbalanced in favor of patent challengers.

Tags: Indian tribes, patent litigation, pharmaceuticals

Transferring drug patents to Indian tribes, cont’d is a post from Overlawyered - Chronicling the high cost of our legal system

September 27 roundup

Walter Olson — Wed, 27 Sep 2017 10:01:33 +0000

Welcome news: U.S. Department of Education withdraws notorious Dear Colleague letter on Title IX and misconduct accusations [Hans Bader, CEI; ABA Journal]
Kaspersky Lab turns tables, forces E.D. Tex. patent claimant to pay to end case [Joe Mullin, ArsTechnica] Following unanimous SCOTUS ruling easing fee awards for ill-grounded patent litigation, firm told to “pay $1.6 million in attorney’s fees for filing an unwarranted patent lawsuit against a competitor.” [same, Octane Fitness vs. Icon]
Activist litigation with taxpayer imprimatur: “University Of North Carolina Law School’s Civil Rights Center Closes Following Board Of Governors Vote” [Paul Caron/ TaxProf, Bainbridge, earlier]
Another positive review for Ben Barton and Stephanos Bibas’s Rebooting Justice [Jeremy Richter, earlier]
Appeals court rejects constitutional challenge to North Carolina homewrecker tort (“alienation of affection”) [ABA Journal, Eugene Volokh, earlier]
Social engineering often seen as intrinsically anti-liberty. Rightly so? [Cato Unbound: Jason Kuznicki, Alex Tabarrok and others]

Tags: alienation of affection, law schools, North Carolina, patent litigation, patent trolls, Title IX

September 27 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Defamation suit after being called patent troll

Walter Olson — Wed, 06 Sep 2017 10:00:03 +0000

David Barcelou and his company Automated Transactions, which have sued banks charging patent infringement over their use of Internet-connected automated teller machine technologies, in December filed a defamation suit in New Hampshire state court against the American Bankers Association, Crain’s Communications, and a variety of banks and other defendants. The suit contends that the defendants have engaged in a “smear campaign” intended to discredit the plaintiffs, prominently through use of the pejorative term “patent troll.” [Automated Transactions LLC v. ABA via IP Watchdog]

Tags: libel slander and defamation, patent litigation, patent trolls

Defamation suit after being called patent troll is a post from Overlawyered - Chronicling the high cost of our legal system

The patent court where you can’t check out?

Walter Olson — Thu, 31 Aug 2017 04:15:31 +0000

Is the notorious E.D. Texas, unwilling to release its clutch, coming up with new rules that will let it keep hearing its enormous patent docket? “In a recent decision, Eastern District of Texas Judge Rodney Gilstrap developed a broadly-sweeping four-factor ‘totality’ test seemingly aimed at keeping patent-infringement suits in his jurisdiction.” [Ryley Bennett, WLF]

Tags: Eastern District of Texas, patent litigation

The patent court where you can’t check out? is a post from Overlawyered - Chronicling the high cost of our legal system

After SCOTUS rulings, less forum-shopping

Walter Olson — Tue, 15 Aug 2017 10:02:31 +0000

Following the Supreme Court’s ruling in TC Heartland v. Kraft Foods, cases filed in the Eastern District of Texas fell from 36% of all patent filings to 21% [Debra Cassens Weiss, ABA Journal] “Quick trials, big verdicts favoring consumers, and a state law that allows nonresidents to easily join mass litigations made St. Louis a destination of choice for attorneys going after companies that do business nationwide. Those days may be over” following the high court’s decision in Bristol-Myers Squibb [Margaret Cronin Fisk and Jef Feeley, Bloomberg]

More: Multidistrict litigation sought in more patent cases [Amanda Bronstad, Texas Lawyer]

Tags: Eastern District of Texas, forum shopping, Missouri, patent litigation, Supreme Court

After SCOTUS rulings, less forum-shopping is a post from Overlawyered - Chronicling the high cost of our legal system

Soon, tumbleweeds in E.D. Tex.? SCOTUS strikes at patent forum-shopping

Walter Olson — Tue, 23 May 2017 04:05:02 +0000

This morning’s Supreme Court opinion in TC Heartland v. Kraft Foods, hinging on what I described in January as a dry point of statutory interpretation, is likely to stand as a landmark win for defendants in patent litigation – and, on a practical level, for fairer ground rules in procedure. A unanimous Court (8-0, Thomas writing, Gorsuch not participating) rejected the broad reading of a venue statute by which the Federal Circuit had empowered lawyers to forum-shop disputes from all over the country into a few decidedly pro-plaintiff venues, above all the largely rural Eastern District of Texas. From here out, defendants can still be sued in a district such as E.D. Tex. if they have a regular and established place of business in it, but the decision is likely to shrink what I called in my January preview a “jackpot patent litigation sector… that shifts around billions of dollar.” By redirecting cases into more neutral venues, it should bring outcomes closer to reflecting cases’ actual merits, which would in turn do much toward restoring confidence in this sector of the law.

If Congress believes the Court has erred it is free to restore patent venue to a more shopper-friendly set of rules. But after the experience of recent years, it is unlikely that a Congress of either party or any likely political complexion will have an appetite for doing that.

[cross-posted from Cato at Liberty] More: Mike Masnick, TechDirt; Daniel Nazer, EFF. [& welcome SCOTUSBlog, Washington Post readers]

Tags: Eastern District of Texas, forum shopping, patent litigation, patent trolls, Supreme Court

Soon, tumbleweeds in E.D. Tex.? SCOTUS strikes at patent forum-shopping is a post from Overlawyered - Chronicling the high cost of our legal system

SCOTUS will look at patent forum-shopping

Walter Olson — Sat, 28 Jan 2017 05:05:58 +0000

The Supreme Court has granted certiorari in the case of T.C. Heartland v. Kraft Foods, which turns on a minor detail of statutory interpretation but raises high stakes indeed: if the Court agrees that a 2011 enactment narrowed venue in patent suits, it could end the current arrangement in which plaintiffs are free to steer most such suits into just a few friendly jurisdictions. My write-up at Cato concludes:

My own suspicion is that not in a thousand years would a thoughtful deliberative process have entrusted the future care of intellectual property in America’s tech sector to the bench and bar of Marshall, Texas, population 24,501. But that’s in no way a reflection on the quality of the able if wily legal talent to be found in East Texas. It’s a reflection on the quality of the lawmakers in the U.S. Congress.

Tags: Eastern District of Texas, forum shopping, patent litigation, Supreme Court, WO writings

SCOTUS will look at patent forum-shopping is a post from Overlawyered - Chronicling the high cost of our legal system

Supreme Court roundup

Walter Olson — Tue, 24 Jan 2017 11:29:03 +0000

I’ve written about Antonin Scalia’s role in the late 1970s and early 1980s as editor of Regulation magazine, and more references to his work there came up at several panels during the recent Federalist Society lawyers convention, all worth watching for their own sake: antitrust (with Judges Doug Ginsburg, Frank Easterbrook (mentioning Regulation at 16:00), et al.), administrative law (Eugene Scalia, same, at 4:25+), and statutory interpretation (Paul Clement, same, at 36:15); and see earlier on my question at the telecommunications panel;
“Can States Forcibly Unionize Small Businesses?” [Ilya Shapiro and Frank Garrison on Cato certiorari petition in Jarvis v. Cuomo, building on Harris v. Quinn line of cases]
High court will hear new cases on limits of personal jurisdiction [Bristol-Myers Squibb v. Superior Court, Tyrrell v. BNSF Railway Company, earlier on BNSF, and more from Michelle Stilwell, WLF on that case]
SCOTUS hears oral argument in “Slants” derogatory trademark First Amendment case [Mark McDaniel and Meredith Bragg/Reason, Jacob Sullum, earlier]
Court accepts case on patent venue that could threaten preferred forum-shopping supremacy of Eastern District of Texas [TC Heartland v. Kraft Foods Group, brief by 56 law and economics professors]
Now taking senior status, Judge Diarmuid O’Scannlain has ranked among MVPs of federal bench in part through his skill at flagging error by his Ninth Circuit for high court review [Ethan Davis and Daniel Sullivan, National Review]

Tags: Antonin Scalia, Eastern District of Texas, forum shopping, Ninth Circuit, patent litigation, Supreme Court

Supreme Court roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Supreme Court roundup

Walter Olson — Thu, 29 Dec 2016 11:31:29 +0000

How feckless for an editorial board to undermine institutional legitimacy of a key check on executive power, the Supreme Court, by spreading notion that some of its seats are “stolen” [New York Times]
Eastern District of Tumbleweeds? High court asked to curtail forum shopping in patent suits [Washington Legal Foundation on TC Heartland LLC v. Kraft Foods Group Brands LLC, more on E.D. Tex.]
Federal charges result in plea deal. State then charges defendant over same conduct. Ought to call it double jeopardy, even if that means overturning misguided “dual sovereignty” doctrine [Ilya Shapiro and Thomas Berry on cert petition in Walker v. Texas]
“Justices Struggle With Cheerleader Uniform Case That Holds Big Implications For Fashion” [Daniel Fisher on Star Athletica v. Varsity Brands]
More Federalist panels on Justice Scalia’s influence: showcase panel on his constitutional influence; federalism and separation of powers with Roger Pilon et al.; the impact of his writing style; criminal law and the Fourth Amendment; Heller, guns, and the Second Amendment;
Appointments Clause makes one of few checks on unaccountable-by-design CFPB, Court should enforce it seriously [Ilya Shapiro on cert petition in Gordon v. CFPB]

Tags: Antonin Scalia, CFPB, Eastern District of Texas, forum shopping, guns, New York Times, patent litigation, Supreme Court

Supreme Court roundup is a post from Overlawyered - Chronicling the high cost of our legal system