Expert Failing to Explain Source Code Analysis Is Precluded From Testifying

In a decision that will strike a chill into accused patent infringers everywhere, a defense expert has been precluded from testifying at trial about his analysis of source code that was purportedly central to the defendant’s non-infringement defense.  Fleming v. Escort Inc., No. 1:CV 09-105 (D. Id. May 23, 2012). The expert’s report identified lines […]

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§ 102(b) On-Sale Bar Combined with § 103 Prior Art Invalidates Software Patent Claims as Obvious

Software claims directed to a client-server system were held invalid as obvious under 35 U.S.C. § 103(a) based on the combination of a reference that qualified as prior art by having been on sale under 35 U.S.C. § 102(b), and references that qualified as prior art under Section 103.  eBay Inc. v. PartsRiver, Inc., Nos. […]

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No Software Copyright Infringement Without Allegedly Copied Work

A California court has dismissed a plaintiff’s claim for copyright infringement because the plaintiff failed to allege that the defendant had actually copied the allegedly infringed software.  Operational Risk Management LLC v. Union Bank, N.A., No. C 12-0584 (N.D. Cal. May 15, 2012).  This may seem like an obvious conclusion.  Nonetheless, the facts of this […]

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A Lesson in Compliance With DMCA Takedown Notice Requirements

A defendant, seeking dismissal of the plaintiff’s complaint, was unable to rely on the safe harbor provisions of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512(c), on the ground that the plaintiff had failed to comply with the DMCA’s notice provisions where the complaint did not make clear whether the defendant had complied […]

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E.D. Va. Asserts Personal Jurisdiction Over Foreign Web Site Providers

Courts sometimes assert personal jurisdiction over foreign defendants who did not specifically target the jurisdiction when establishing a website accessible from within it, and who may have conducted only a relatively miniscule amount of business in the jurisdiction.  In a recent example, a Virginia court held that it had personal jurisdiction over two European corporations […]

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Supreme Court to Federal Circuit: Reconsider the Patent-Eligibility of Ultramercial’s Patent Claims

Last fall, in Ultramercial, LLC v. Hulu, LLC, the Federal Circuit Court of Appeals surprised many people by upholding patent claims directed to a “method for distribution of products over the Internet via a facilitator.”  As already reported on the PatentlyO blog and elsewhere, the U.S. Supreme Court has now granted defendant Wild Tangent’s petition […]

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Section 102 On-Sale Bar Invalidates Software Patent Claims

The Federal Circuit has upheld a jury verdict invalidating patent claims covering a software product that the plaintiff had demonstrated and sold prior to filing a patent application.  Leader Technologies, Inc. v. Facebook, Inc., No. 2011-1366 (May 8, 2012). The claimed invention was conceived in August 1999.  Development of software based on the invention began […]

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Narrow views of “Authorization,” “Loss,” and “Damages” Under the CFAA

As previously reported, in setting standards for civil rights of action under the Computer Fraud and Abuse  Act (CFAA), 18 U.S.C. § 1030, courts have taken varying approaches.  However, a number of recent cases have elected a narrower view of facts creating a cause of action under the CFAA, limiting plaintiffs’ ability to bring CFAA […]

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Patent Infringement Pleading Standards: Recent Cases Yield More Confusion (and Perhaps a Little Clarity)

Three recent cases from various U.S. district courts illustrate the need for a higher court to clarify the pleading standard governing claims of patent infringement.  As previous posts to this blog have noted, trial courts have suffered from some confusion concerning the level of detail concerning alleged infringement that must be provided in a complaint.  […]

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Past Licenses for Patents-NOT-in-Suit Relevant to a Reasonable Royalty

Could Sprint, having licensed its patents in settlement of litigation, be compelled, in defending subsequent, unrelated litigation, to produce documents related to these licenses?  In a word, yes.  A magistrate judge granted plaintiff High Point’s motion to compel production of Sprint’s license agreements and expert reports, although denying the motion with respect to Sprint’s communications […]

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