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Terrell “T-Sizzle” Suggs roams the gridiron looking to make his presence known to opposing quarterbacks by delivering some of the most devastating sacks in the game of professional football. His lawyers, meanwhile, tackle a different kind of foe off the field: people they say are violating Suggs’ trademark and affecting his right of publicity.
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In an effort to reduce the number of multi-defendant patent infringement lawsuits often brought by non-practicing patent owners, the America Invents Act (AIA) includes a new statutory provision that addresses joinder of accused infringers in patent actions or trials not involving certain drugs and biologics. Under the new law (35 U.S.C 299), parties accused as defendants may be joined in one action in a single judicial district as defendants or counterclaim defendants only if:
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Patent litigation activity in Maryland increased in 2011 compared to the previous four years, as the chart at right shows. According to records available from Justia.com and PACER, plaintiffs filed 35 patent lawsuits in the U.S. District Court for the District of Maryland (Greenbelt and Baltimore divisions combined) last year, compared to just 22 lawsuits in 2010 and 31 in 2009 (59-percent and 13-percent differences, respectively).
Plaintiffs filed 38 copyright lawsuits in the Maryland federal court in 2011, compared to 27 lawsuits in 2010 (a 41-percent difference) and 27 lawsuits in 2009 (a 12-percent difference).
Bucking the upward trend, trademark plaintiffs brought 34 lawsuits in 2011 compared to 40 in 2010 (a 15-percent slide), but matched the number of lawsuits in 2009.
All combined, plaintiffs brought 107 copyright, patent, and trademark lawsuits in Maryland's federal district court in 2011, a 20-percent increase over 2010, reversing a 10-percent drop in filings from 2009 to 2010 (note, these figures and those shown in the charts do not include cases with multiple plaintiffs or cases having multiple nominal counterclaim plaintiffs).
Maryland's neighboring federal district courts saw significantly more IP litigation last year: Delaware, 499 combined cases (compared to 272 in 2010); Virginia, 204 cases (compared to 176 in 2010); Pennsylvania, 265 cases (compared to 255 in 2010).
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The Top 5 web page views on the Maryland IP Law Blog for 2011 are perennial favorites. The most popular web page for the second year in a row was one touting the "benefits" of downloading music on the Internet, published August 28, 2007. Bouchat's copyright lawsuit against the Baltimore Ravens and the NFL was the second most visited web page. The new IP JOBS Board came in third, followed by a post discussing the new America Invents Act. Rounding out the top 5 was a Fourth Circuit opinion regarding Louis Vuitton's trademark infringement case against Haute Diggity Dog:
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I am a full-time intellectual property law attorney. In case my "About" page was not as clear about that as it could be, I recently added a few "Representative Matters," which I hope will provide further insight into what I do when I'm not publishing this website.
Wright Mfg., Inc. v. The Toro Co., et al., slip op. (11:-cv-1373) (Md D. Ct., Dec, 13, 2011), J. Garbis
In Wright Mfg., Inc. v. The Toro Co., the U.S. District Court for the District of Maryland dismissed in part a complaint by Wright Manufacturing against competing lawn tractor companies, Toro and Exmark Manufacturing, saying that Frederick, Maryland-based Wright had not met the plausibility standard for pleading induced and contributory patent infringement. The court instructed Wright to follow the court's Local Rule 103.6, should it decide to submit an amended complaint against the Defendants.
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The National Football League (NFL) Properties, Inc. and Electronic Arts (EA), maker of, among other computer video games, "Madden NFL 11," were sued by Frederick Bouchat for allegedly infringing his copyright in his "Flying B" artwork (pictured at right). Filed in the U.S. District Court for the District of Maryland (No. 11-CV-02878, Oct. 7, 2011), Bouchat alleges in his complaint that the NFL licensed the infringing logo to EA and then EA reproduced and displayed it on "retro" uniforms worn by players depicted in its video game.
Under current law, an accused patent infringer may offer a “prior user” defense when the patent in question is related to doing or conducting business (i.e., “business methods”) and the accused infringer used the invention but never filed a patent application for it. If the same invention is later patented by another person, the accused infringer may not be liable for infringement to the new patent holder, although all others may be. In passing the America Invents Act (AIA), Congress found that the prior user provisions of the earlier law were particularly important to high-tech businesses that prefer not to patent every process or method that is part of their commercial operations. When the new law becomes effective, the prior user defense may be asserted in limited situations against any patent, not just method patents.
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The top 2011 Maryland Innovator of the Year award was presented to Jeff Walker of Innovative Mobility Solutions LLC during a presentation ceremony held at Baltimore's American Visionary Art Museum in October. Mr. Walker was recognized as the top innovator among 24 award honorees in recognition of his patent pending motor vehicle device for use by those with physical disabilities.
Under the America Invents Act (AIA), any evidence showing that an invention was "in public use, on sale, or otherwise available to the public" can be used as prior art, even if that evidence relates to events that take place outside the U.S. Thus, companies and inventors who publicly use or offer their inventions for sale outside the U.S. could be barred from obtaining patent protection for those inventions in the U.S., depending on the circumstances. That change in the patent law is intended to harmonizes U.S. law with the patent laws of other countries. As discussed below, the AIA make many other changes to the definition of "prior art."
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Nearly 30 years ago, Congress created the administrative reexamination process. It was intended to be used by the Patent Office to review the validity of already-issued patents on the request of either the patent holder or a third party challenger. It was expected that reexamination would serve as an effective and efficient alternative to often costly and protracted district court litigation.
Designed to limit unnecessary and counterproductive litigation costs, the America Invents Act (AIA) was signed into law by President Obama on September 6, 2011, to the praises of many in industry. The law changes how and where patent lawsuits can be filed, eliminates certain defenses to patent infringement allegations, and effectively eliminates certain private rights of action. Even now, parties whose patent enforcement cases are pending in federal courts around the country or are about to be filed, are having to step back and rethink their litigation strategies. One of the goals of the AIA is to reduce the amount of litigation in the United States.
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The Maryland State Bar Association's (MSBA) 20,000 attorneys and judges now have a new tool for accessing rules of evidence, rules of professional conduct, and codes of civility right on their iPhone, iPad, Android, and Blackberry device. The MSBA app also allows Maryland practitioners access to Attorney Trust Accounts rules and provides a link to "Ideals of Professionalism." Rules are conveniently grouped by chapters, rule number, and title, and search and bookmark features allow easy repeat access to favorite content.
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The America Invents Act includes provisions for prioritized patent application examination that emulate the requirements of the Patent Office's "Track I" final rule. 76 FR 185 (September 23, 2011). Under the system, a patent applicant pays an extra $4,800 fee ($2,400 for small entities) to have his or her patent application undergo accelerated examination.
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Yesterday, the U.S. Patent & Trademark Office (PTO) published a revised fee schedule, which reflects a 15% increase in many fees required to be paid by users of PTO patent-related services. On and after September 26, 2011, the basic filing fee for a utility patent application, for example, will increase from $330 to $380. Mandated by Section 11(i) of the America Invents Act of 2011 (AIA; H.R. 1249; Public Law 112-29), the so-called "surcharge" fees are intended to make the PTO more "efficient and productive" by allowing it to set its own fees and use all fees collected for agency operating purposes. For more on the PTO's fee changes, see the public announcement here.
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