Archive | Civil Procedure

E.D. Texas Applied Wrong Standard for Joinder of Patent Defendants: Fed. Circuit

Eight of eighteen defendants named in a complaint for patent infringement sought a writ of mandamus directing the Eastern District of Texas to sever and transfer claims against the respective defendants to various district courts.  The Federal Circuit partially granted the writ, directing the district court to “determine whether the claims ‘aris[e] out of the […]

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When Can a Patent Owner Sue for a Declaratory Judgment?

Does jurisdiction exist over a declaratory judgment action (i.e., is there a case or controversy) where the plaintiff alleges that a party’s possible future use of software would infringe patent claims?  The court in Auburn University v. International Business Machines Corp., No. 3:09-cv-694 (M.D. Ala. April 23, 2012), held that there was no justiciable controversy […]

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Answering an In Rem Action Against a Domain Name under the ACPA

The Anti-cybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d) allows a trademark owner to “file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located” where personal jurisdiction over […]

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Preliminary Injunction for Software Copyright Infringement

When can a plaintiff obtain a preliminary injunction relating to a customer’s use and distribution of copyrighted software beyond the scope of the customer’s license?  The court in Accusoft Corp. v. Quest Diagnostics, Inc., No. 12-40007 (D. Mass. April 18, 2012), granted a preliminary injunction, but limited the preliminary relief so as to properly balance […]

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Patent Infringement Notice Pleading: A Lesson from Contrasting Cases?

Two recent cases provide a contrast that may illustrate minimum notice pleading requirements for patent infringement plaintiffs.  In j2 Global Communications, Inc. v. Vitelity Communications, LLC, No. CV 11-07904 (C.D. Cal. April 12, 2012), the court held that the plaintiff had adequately described the accused products, and denied a motion to dismiss.  In contrast, the […]

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Independent Contractors Are Covered by the Attorney-Client Privilege

Use of independent contractors is common in the tech world, especially in software development.  Communications between a company’s attorneys and an independent contractor may be protected by the attorney-client privilege, so long as the communications are directed to the independent contractor functioning as an employee.  A recent case illustrates the principle.  Gen-Probe Inc. v. Becton […]

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Notice Pleading Contributory and Induced Patent Infringement

Bare bones allegations that a defendant knew of a patent, and intended others’ infringement, were not enough to sustain allegations that the defendant indirectly, i.e., contributorily and by inducement, infringed the patent.  DR Systems, Inc. v. Avreo, Inc., No. 11-CV-0932 (S.D. Cal. March 29, 2012). The plaintiff’s complaint simply alleged that the defendant knew of […]

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Notice Pleading Patent Infringement Requires Some Specificity

Even after bringing suit against 33 parties just before the America Invents Act’s prohibition on joining unrelated defendants took effect, the notice pleading requirements of the Federal Rules of Civil Procedure still required that a plaintiff identify specific ways in which infringement was alleged to take place.  Select Retrieval, LLC v. American Apparel, LLC, No. 11cv2158 […]

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Meeting the Notice Pleading Standard for Patent Infringement

The court in Gradient Enterprises, Inc. v. Skype Technologies S.A, No. 10-CV-6712L (W.D.N.Y. March 13, 2012), addressed the confusion concerning pleading standards in patent infringement actions following the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, as well as the Federal Circuit’s McZeal v. Sprint Nextel Corp. decision.  In dismissing […]

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Service by E-mail

Internet scofflaws often operate anonymously or under pseudonyms, and frequently provide false addresses, making them difficult to locate and serve.  This has led some courts to allow service via e-mail, a helpful tool to remember in the often frustrating battle against the anonymity of cyber squatters, domain name infringers, and the like. For example, in […]

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