Archive | Civil Procedure

Pleading Patent Infringement Remains a Low Bar

Here is a small reminder that, even after the demise of Form 18 of the Federal Rules of Civil Procedure, pleading requirements for patent infringement are still loose enough for plaintiffs to embark on discovery fishing expeditions.  In a very brief opinion in Network Managing Solutions, LLC v. AT&T, Inc., No. 16-cv-295-299(RGA) (D. Del. Feb […]

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Another Reason Why Ex Parte Reexaminations May Not Be the Best Way to Challenge Patent Claims

Despite the defendant’s diligence in seeking an ex parte re-examination of the patent-in-suit by the USPTO shortly after being sued, a district court has denied the defendant’s motion for a stay.  Pro-Troll, Inc., v. Shortbus Flashers, Inc., No. 16-cv-04062-VC (N.D. Cal. Dec. 23, 2016).   The court’s reasoning included in an interesting comparison of ex parte […]

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Communications with Patent Agents and Foreign Associates – Recent Developments on Privilege

If you are, or work with, a patent agent – or if you are at one end or the other of communications between U.S. attorneys and foreign attorneys and/or patent agents – this recent presentation by my colleague Peter Keros has some useful information.  The basic takeaways are these.  First, patent agents are treated like […]

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Complaint Dismissed to Uncharted Patent Claims Under Iqbal/Twombley Notice Pleading Standard

For those paying attention to the evolving law of notice pleading patent infringement, a Florida court confirmed that patent plaintiffs face a raised bar under Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). The plaintiff, who provided a claim chart alleging a theory that one patent […]

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What Is a Party’s Burden in Seeking a Determination of Patent-Ineligibility?

A court denied a patent infringement defendant’s motion to dismiss under FRCP 12(b)(6); the defendant, alleging that four patents were invalid under 35 U.S.C. § 101 for failing to recite patent-eligible matter, failed in its burden of stating a representative claim.  JSDQ Mesh Technologies LLC v. Fluidmesh Networks, No. 1-16-cv-00212 (D. Del. Sept. 6, 2016). The […]

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Some Complaints for Patent Infringement Easily Fail Under Iqbal and Twombley

Here is an example of how the abnegation of Form 18 of the Federal Rules of Civil Procedure is changing patent litigation.  In Mike Murphy’s Enters. v. Fineline Indus., LLC, No. 1:16-cv-784-LJO-SAB (E.D. Cal. Aug. 4 2016), the court granted a Rule12(b)(6) motion and dismissed the plaintiff’s complaint alleging infringement of United States Patent No. […]

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No Interlocutory Appeal for Adverse Alice Ruling

Having denied a defendant’s motion to find patents invalid under 35 U.S.C. § 101, Delaware’s Judge Robinson has now denied the defendant’s request for interlocutory appeal under 28 U.S.C. § 1292(b).  Improved Search, LLC v. AOL, Inc., No. 1:15-cv-00262 (D. Del. May 6, 2016).  Judge Robinson explained that interlocutory appeal should be exceptional, and should […]

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Patent Invalidation under Alice Held Not to Justify Fee Award

A declaratory judgment plaintiff, having successfully invalidated patent claims under 35 U.S.C. § 101 and the Alice case, has lost a motion for its attorney fees under 285 U.S.C. § 285. Clarilogic, Inc. v. FormFree Holdings Corp., No. 3-15-cv-00041 (S. D. Cal. April 27, 2016).  The court had earlier granted a motion for summary judgment […]

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Plaintiff Stuck with Collateral Judgment of Patent Invalidity Under Alice in More Ways Than One

Not only did collateral estoppel apply from a prior finding of patent invalidity under 35 U.S.C. § 101, but a plaintiff was denied a motion to voluntarily dismiss its claim of patent infringement, the court expressly leaving open the specter of a fee award to the defendant as a prevailing party under 35 U.S.C. § […]

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