Data available from Justia.com shows that the number of copyright lawsuits filed in the U.S. District Court for the District of Maryland (Greenbelt and Baltimore divisions combined) in 2008 (40; see table below comparing Districts) was higher than the number initiated in 2007 (30). The number of defendants named in those lawsuits was also higher year over year (about 120 defendants in 2008 compared to about 60 in 2007).
The table below shows how Maryland ranked among other U.S. District Courts in terms of the number of lawsuits that were filed raising patent issues in 2008 (source Justia.com). Table values are based on the number of complaints filed in 2008. As shown, 31 patent lawsuits were initiated in the U.S. District Court for the District of Maryland (Greenbelt and Baltimore divisions combined) in 2008, which is nearly a 30% increase over the number of patent lawsuits initiated in Maryland in 2007. In terms of the number of parties involved in those lawsuits, there were more parties named in patent lawsuits in 2007 compared to 2008, due to one patent infringement lawsuit initiated in 2007 that involved over a hundred defendants.
Below is a Wordle based on the last several months worth of posts on this website. A Wordle is a “word cloud” generated from text in which greater prominence is given to words that appear more frequently in the source text. In the Wordle below, one can see that the words "patent," "Maryland," "district," "court," and "judge" have found their way into the posts on this website more frequently than other words.
Jonathan Feinberg of IBM Research is credited for providing the on-line Wordle tool.
Twenty-six plaintiffs filed 24 patent infringement lawsuits in the District Court for the District of Maryland in 2007 (see a list of the lawsuits and the parties involved after the jump). The 24 lawsuits involved 181 defendants (individuals and entities) from all over the world. If you don't count the Technology Patents LLC v. Deutsche Telekom AG case, which involved 131 defendants, the total number of defendants sued in Maryland in 2007 was 50.
One notable change in 2007 compared to 2006 is the apparent increase in the number of patent infringement lawsuits involving life-sciences technologies (e.g., pharmaceuticals, biologics, and medical devices).
In 2006, 21 plaintiffs filed 23 patent infringement lawsuits in Maryland involving 25 defendants. Thus, while the total number of patent infringement lawsuits in 2007 increased only slightly over 2006 figures, the total number of defendants sued in 2007 compared to 2006 increased significantly. Several factors could push the number of lawsuits even higher in 2008, including a rise in biotechnology litigation, which could involve the 300+ biotechnology companies that call Maryland home, and changes in laws brought about by patent reform legislation, which if enacted could close off certain jurisdictions outside Maryland to plaintiffs that might then consider Maryland as an alternative venue.
Topping the list of companies filing the most patent infringement lawsuits in Maryland in 2007 were Nutramax Laboratories, Inc., the Edgewood, MD, company that specializes in nutritional supplements, and Israel's Teva Pharmaceutical Industries, Inc. (with its Teva Pharmaceuticals USA, Inc., subsidiary), both of which filed two patent infringement lawsuits in Maryland last year.
The 24 lawsuits filed last year were assigned fairly evenly among Maryland's District Court Judges: Bennett (2), Blake (3), Chasanow (4), Davis (1), Garbis (3), Legg (1), Motz (2), Nickerson (3), Quarles (1), Titus (1), and Williams (3).
An IP360 email notice last week commented about a pending Central District of California case--Applied Medical Resources Corp. v. U.S. Surgical Corp., No. 03-cv-01267--in which the court (Judge Carney, in this case) reconsidered a defendant's summary judgment motion in view of In Re Seagate Technology, LLC, 83 USPQ2d 1 (Fed. Cir. 2007) (en banc) (Newman, J., Garjarsa, J., concurring). Upon reviewing the motion under the Seagate standard, Judge Carney again denied the defendant's motion, deciding to allow the issue of willful patent infringement to be heard by a jury despite the higher burden on the patentee to establish willfulness under Seagate.
One of the interesting aspects of Judge Carney’s decision is that the jury will consider willfulness at the same time it considers evidence of infringement liability because “some of the same evidence that supports of finding of infringement supports of a finding of willfulness.” To illustrate, Judge Carney noted that a jury may use evidence regarding whether the structure of an accused product is equivalent to a claimed element in the patent-in-suit “not only to decide whether infringement occurred but whether the structures are so similar that there was an objectively high likelihood of infringement (the first prong of the willfulness analysis).”
This is not the first case, of course, in which issues of liability and willfulness will not be bifurcated (a decision within the discretion of the court), but it suggests that other courts may also find it better to try the two issues together because the first prong of Seagate’s two-part willfulness analysis requires the patentee to establish by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent, which is clearly related to the question of liability.
One of the other interesting aspects of Judge Carney's decision relates to opinions of counsel. If the first prong of Seagate is satisfied, the patentee must then demonstrate that the objectively-defined risk was either known or so obvious that it should have been known to the accused infringer (this also involves evidence related to liability, which some could argue further cuts against bifurcating issues of liability and willfulness). Judge Carney noted that, while Seagate rejected the view that alleged infringers have an affirmative obligation to obtain opinions of counsel, he did note that evidence of the defendant’s procurement of opinion letters from independent counsel, at least in the case at hand, “lends support to the argument that [defendant] was aware of the objectively high risk of infringement posed by the sale of the [accused product].” That seems to suggest that defendants would not wish to procure opinions of counsel if doing so helps the other side establish the state of mind of the defendant with regard to what was known about the likelihood of infringement.
The case, again, is Applied Medical Resources Corp. v. U.S. Surgical Corp., No. 03-cv-01267 (C.D. Cal. Dec. 11, 2007). The Judge's comments are in a “minutes” entry in the record. If you have access through PACER, the minutes entry is Docket No. 344.
A week ago, Judge Cacheris of the District Court for the Eastern District of Virginia, preliminarily enjoined the U.S. Patent & Trademark Office (PTO) from implementing new PTO rules that would have restricted the number of continuations and continuation-in-part applications that can be filed in a patent family, as well as the number of claims permitted in any given application. The rules caused a great deal of tension among stakeholders, hype, unecessary CIP filings, constant predictions about injunctions, non-stop bloggings, and, of course, litigation, and all for good reason. So how did we get here, and where do we stand today? Read on...
The PTO had planned to implement new rules on November 1, 2007. As we now know, the rules caused nothing short of an avalanche of protest from the day the Notice of Proposed Rulemaking was published in the Federal Register, with nearly everyone finding something unpalatable in the rules. SmithKline Beecham Corporation (doing business as GlaxoSmithKline (“GSK”)), stepped up and sued the PTO, seeking both a preliminary injunction and a permanent injunction to prevent the new rules from going into effect. It would be fair to say that a rallying cry in support of GSK swept the patent world.
On October 31, 2007, in a packed courtroom, the Eastern District of Virginia considered (1) the likelihood of success on the merits by GSK, (2) the possibility of irreparable harm to GSK if the injunction is not granted, (3) the balance of hardships between the parties, and (4) the public's interest.
Under factor (1), the court found that each side had a likelihood of success at trial on the issues noted below. However, under factor (2), the court granted the preliminary injunction because it is likely that GSK would suffer irreparable harm if the preliminary injunction is not granted, namely of potentially losing valuable patent protection and incurring significant costs to comply with the Final Rules. And, under factor (3), the court determined that, though the hardship to the PTO for maintaining the status quo by deferring the effective date of the Final Rules is not nonexistent, the uncertainty and loss of investment suffered immediately by GSK tilts the balance of hardships in their favor. Finally, under factor (4), the court found that the public interest is most served by continuing the status quo and granting the preliminary injunction.
Thus, while there are some issues on which the PTO may ultimately prevail as this litigation proceeds to the next stage, the court found, as a preliminary matter, that there is a likelihood that the PTO has exceeded its authority at least on several of the Final Rules, so it granted GSK’s motion, thereby preliminarily enjoining the PTO from implementing the new rules (see PTO's statement about the litigation here).
In a poll conducted after the injunction issued, 92.8% of those who responded said that Judge Cacheris made the appropriate legal decision. See PLI's Patent Blog for in-depth coverage of the legal challenges to the PTO's new rules.
Since GSK’s challenge is a legal one, the next stage in this litigation will be for the parties to submit summary judgment motions.
Petersburg, Virginia-based Star Scientific, whose published corporate mission is to “reduce toxins in tobacco so that adult consumers can have access to products that expose them to sharply reduced toxin levels,” sued R.J. Reynolds for patent infringement in the District Court for the District of Maryland in 2001. A bench trial on the issue of the enforceability of the asserted patents was held in 2005. Apparently put off by what it viewed as an excess delay in receiving the District Court’s decision, Star petitioned the Court of Appeals for the Federal Circuit (CAFC) seeking a writ of mandamus from the court that would order the Maryland District Court to issue its decision regarding unenforceability within 30 days. Star's petition was filed before June 7, 2007, which is the date the Maryland District Court issued an order stating that its decision would be posted on June 29, 2007. Defendants/respondents R.J. Reynolds Tobacco Company (a North Carolina corporation) and R.J. Reynolds Tobacco Company (a New Jersey corporation) opposed Star’s petition.
In an Order signed June 25, 2007, Federal Circuit Court Judge Pauline Newman denied Star’s petition, stating that the company had not “met its burden in this case,” which, for a writ of mandamus, required Star to establish that there had been a “clear abuse of discretion or that the District Court has ‘obstinately refuse[d]’ to adjudicate the matter” (citing Will v. Calvert Fire Ins. Co., 437 U.S. 655, 666-67 (1978)).
Ironically, the same day the Federal Circuit issued its Order denying Star’s petition, the Maryland District Court issued its decision on enforceability, effectively mooting Star’s petition to the CAFC. The District Court found Star’s patents to be unenforceable on the basis of inequitable conduct by Star’s attorneys during prosecution of Star’s patents before the U.S. Patent & Trademark Office. Star responded forcefully to the decision. In a June 27, 2007, press statement, it stated:
“The company is disappointed and frankly outraged by the U.S. District Court's ruling yesterday…. The Court's conclusion that highly respected and experienced senior attorneys at four national law firms were involved in an alleged plot to deceive the Patent Office is stunning and totally without support in the record. The opinion ignores significant portions of the record, distorts others, and spins a tale that is unrecognizable to those who attended the trial. … We welcome the opportunity to present the record in this case to objective decision-makers on the Federal Circuit.”
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