Flying Coach
Or, "Those Who Live By The Sword..."
Here's an amusing little class action case filed in Seattle this week. Seems Coach, Inc., well known purveyors of high end handbags and such, in their never-ending zeal to protect innocent consumers from inferior (and, more reasonably priced) "knock off" goods, unleashed their New York lawyers to crack down on one Ms. Gina Kim -- a Seattle woman who had the unmitigated nerve to list a supposed "Coach" handbag for sale on her eBay account.
Showing little mercy and no tolerance for those who scoff at trademarks and the God-given right of consumers not to be deceived, Coach demanded removal of the listing, cancellation of Ms. Kim's eBay account, surrender of the offending bag to Coach, and a monetary payment sufficient to make her think twice about ever trying such a stunt again. Civic-minded eBay, demonstrating its own true mettle, cracked down harshly on Ms. Kim by canceling the listing and terminating her account. It's satisfying outcomes such as these that warm the hearts of the brave corporate warriors who protect us from such outrageous crimes.
Only one slight problem...
Turns out Ms. Kim was listing a genuine Coach bag that she owned legally and had every right (at least for now) to sell on the secondary or used market.
In her action, Ms. Kim is suing Coach for, among other things, defamation, misrepresentation of trademark infringement, violation of Washington's Consumer Protection Act and tortious interference with business expectancy. And she is doing it as a class-action case on behalf of other Washington residents who have been similarly harassed. Apparently there is good reason to think she is not alone.
My reaction? You Go, Girl!! Best of luck, and go get 'em!
Now obviously I am slightly biased and have a bit of an ax to grind. After all, I, along with others in my noble calling, am frequently accused of "misusing" the patent system and IP rights to take advantage of poor, defenseless, multi-billion dollar corporations who would never dream of using another's property for free. So when I see these same companies use their powers to crack down on the savage individuals who threaten civilization by selling their own property to make ends meet, it makes me shake my head in sadness. When I see them try this and screw up royally in the process, it brings a smile to my face.
Anyway, this is one to keep an eye on.
Who's Driving Up The Costs of Litigation? (Or, "Maybe The Recession's Worse Than We Think!")
As contingent-fee lawyers and supposed "patent trolls" to boot, my colleagues and I are blamed for many of the ills that plague society. It is we -- who do not get paid unless we are successful -- who file merit-less cases, prolong litigation, waste resources, and cause innocent defendants to pay their lawyers upwards of two million dollars on average to defend themselves. It's a wonder we sleep at night.
These thoughts brought an admittedly self-congratulatory smirk to my face as I received the recent decision of the Federal Circuit affirming the District Court's denial of fees in a case we handled that never should have gone on as long as it did.
Now in fairness, we lost the case on the merits, the District Court held the patent invalid, and we took our lumps as we knew we might when we went in. No complaint there.
Not content with their victory, our opponents moved for fees. Again, no complaint as it is their right to ask.
What I do find amusing is that our opponents chose to reject our early offer of a "walk away" settlement, chose to file a hopeless appeal of the District Court's denial of fees and -- most amusingly -- traveled 3000 miles each way to deliver a futile 15 minute oral argument against an opponent who wasn't even there. (We, being the wastrels we are, elected to waive oral argument and rest on our brief.)
So there you have it. An hourly-based firm will happily spend thousands of dollars of its client's money to travel 3000 miles to argue against an empty chair, but it's the contingent fee guys who are driving up the costs of litigation.
Yeah, somebody really ought to do something about us.
And the beat goes on...
A few years back I wrote about what I saw as a developing "War on Juries" in patent cases. A couple of recent incidents suggest that the war continues.
Last week we lost a hard-fought case on summary judgment. That happens, it's part of the game, and the lawyer who never loses most likely never accepts a real challenge either. But what's humorous about it is that the decision came four days after trial was originally scheduled to have begun. Given that the whole idea of summary judgment is to increase efficiency and resolve one-sided cases early on, the fact that the case could have been tried to a verdict in less time than needed for summary judgment leaves me scratching my head.
This week, the Federal Circuit (surprise, surprise) overturned yet another lower court decision in favor of a patentee. In that case, the judges concluded that the invention was "obvious" based on some sort of "common sense" inventive standard. (Guess that's kind of up there with the "we know it when we see it" standard.)
What strikes me about both developments is all the judicial lip service paid about what "the trier of fact" could and could not reasonably conclude. Rather than simply present the evidence to the actual trier of fact, i.e., a jury, the courts prefer to spend more time, effort and money guessing about what a jury could find rather than simply presenting the evidence and finding out for real.
The elephant in the room is that juries play little, if any, real role in patent litigation today. Courts still seat them (if you get that far) as some sort of quaint hold-over from the past, but as far as their decisions actually carrying any weight, well, given that virtually every important question is now an issue of law, and hence reviewable de novo by the CAFC, the sad truth is that you will win only if the handful of judges there decide to let you win.
Hope I'm wrong about this, but the handwriting is on the wall. And it doesn't look encouraging.
That Unsettling Feeling
The overwhelming majority of cases settle. What varies is when, how and on what terms they do. Maybe it has to do with a weakening economy, but we're seeing a definite trend for defendants (or more likely their lawyers) to dig in their heels and fight, rather than take the sensible approach of reaching a deal.
I am not really surprised, given that every day I read of another major firm laying off 50 lawyers or, worse yet, shutting its doors. Money spent on lawyers is one of the first things cut when cash is tight, and with fewer big ticket litigation matters available to pay the rent, big firm lawyers have a powerful incentive to turn every case into something major.
How do I know?
I used to be a big firm partner working mostly the defense side and know how it goes.
The standard speech always includes an appeal to "principle" and the need to send a strong message that "we will not be pushed around." As if any plaintiff's lawyer actually takes that into consideration.
There are a lot of questions we consider before taking a case and certainly before filing a complaint. Most important is, does the case have merit? Second, are potential damages sufficient to make it worthwhile? Very important is whether the defendant can actually pay if judgment is obtained? However, one question that NEVER gives us any pause whatsoever is, "will the defendants put up a fight?" Of course they will. That is ALWAYS a possibility, and a company's reputation for defending cases vigorously simply does not enter into the calculation. Facing defense counsel and their defenses is just part of the game.
Having now been on the plaintiff's side for quite some time, I feel somewhat foolish recalling the principled speeches I once gave corporate clients regarding the need to stand up and send a strong message to the plaintiff's bar. In reality, my opponents did not care about reputations, "messages" or the perceived nastiness of defense counsel.
I understand a big firm lawyer's need to hit his numbers and bring in the cash. And fighting cases is what we lawyers do, on both sides. But rational business decisions by clients should be based on more than silly claims about "messages" and "principle" and so forth. You'd think that people smart enough to get rich in the first place would know when their lawyers are blowing smoke.
Again, the overwhelming majority of cases settle, and they usually do so when when clients wake up to where their true interests actually lie.
Houston, We Have A Problem...*
Count me among the latest to question whether the Eastern District of Texas is still THE venue for bringing plaintiff's patent cases. A "Rocket Docket" it ain't.
We've filed a fair number of cases in the Eastern District over the years. Although things used to move with dispatch, in one of our latest, the first available date for a Markman hearing was June 2010. In another case, we are awaiting a Markman ruling following a hearing in April 2007.
And check out this apparently routine order we just received. Basically, it requires asking for permission before filing a whole host of motions and on its face plainly states the measures are needed "Due to the large number of patent cases pending on the Court's docket."
This is all no doubt due to the Eastern District's well deserved reputation as a fair and friendly forum for hearing patent cases. But I suppose there can be too much of a good thing. The backlogs were probably inevitable.
*Yes, I am aware Houston is not actually in the Eastern District. Just couldn't resist the cheap humor.
Signs of things to come?
Just when it appears things can’t get much worse for patent plaintiffs, the Federal Circuit surprises us with a modest string of decisions actually finding in favor of patent holders.
Just one week after Muniauction, Inc. (pdf) took it on the chin by having its $77 Million jury verdict reversed (that’s reversed as in “you get zip, nada, nothing”), the boys in DC actually decided one in favor of the patentee. (pdf) What’s more they did it by upholding a summary judgment finding of infringement. Hmmm, haven’t seen that in quite a while.
On August 1 of this year, they truly outdid themselves by not only reversing summary judgment findings (pdf) of invalidity, noninfringement, and inequitable conduct (with fees thrown in to boot), but directing that the case be reassigned to a different judge on remand as well. I had to pinch myself to make sure I wasn’t dreaming. I wasn’t – six days later they did it again (pdf) (well, almost – no reassignment to a new judge this time).
Then in short order they (1) reined in a potential infringer who filed an early DJ action, (2) partially upheld a jury verdict in favor of an individual patent holder, and (3) vacated a lower court’s summary judgment finding of no infringement and no liability for damages. What’s truly amazing is that in the second of these (Voda v. Cordis), they actually upheld the jury’s finding of infringement under the doctrine of equivalents – THE DOCTRINE OF EQUIVALENTS of all things! (For you youngsters who’ve never heard of it, just ask anyone in practice before 2002. He might even be able to tell you about phlogiston too.)
Speaking of ancient history, the Eight Circuit at one time was so anti-patent they had an unbroken string of 18 or 19 decisions, each finding the subject patents invalid. Finally, and no doubt recognizing that this had not gone unnoticed by the bar, they upheld some obscure patent, probably just to get one in the “win” column for a change.
While the cynical side of me says the Federal Circuit is simply doing the same thing here, (after all, even the tightest casinos have to let someone win on occasion) I’d like to think maybe the pendulum is swinging back in favor of patentees once again.
On a serious note, what I’d truly like to think is that the work former Judges Markey, Rich and others did to deliver patent law from an arcane backwater to the forefront of law has not been wasted. There is no doubt in my mind that the law has shifted away from protecting individual inventors in recent years and that some on the Court have an agenda in that direction. Whether they will win out is unclear.
Perhaps this minor string of cases upholding patent rights signals a real change back to strong patents. Perhaps they are only a minor aberration. Or perhaps the real aberration has been the first twenty years of the Federal Circuit’s existence and that what we are witnessing now is merely a reversion of the law back to what it has been all along. I’d like to think not, but the truth is that for most of the Twentieth Century patents weren’t worth much, if anything. We’ve lived through that before and it could easily happen again. Are we heading that direction? Guess time will tell.
Mann Law Group Wins $1.3 Million Jury Verdict in Favor Of Seattle Professional Photographer
The case arose when Mr. Shugart discovered that his client, Propet USA, Inc., a wholesale supplier of shoes, had been using Mr. Shugart's photographs beyond the scope of the license he granted. When he complained, Propet responded by filing a declaratory judgment suit seeking (1) a declaration that Mr. Shugart had no rights in the photographs he took and supplied to Propet and (2) an injunction against Mr. Shugart's attempts to sell his images.
Mr. Shugart filed counterclaims for (1) copyright infringement, (2) violation of the Digital Millennium Copyright Act and (3) loss of and/or failure to return Mr. Shugart's original images.
After finding that Propet (1) infringed Mr. Shugart’s copyrights, (2) willfully removed his copyright management information from his images, and (3) failed to return his original images, the Jury awarded Mr. Shugart $303,000 for loss of Mr. Shugart's images, $500,000 in statutory damages for copyright infringement, and $500,000 in damages for violation of the Digital Millennium Copyright Act.
John Whitaker of the Whitaker Law Group and Ms. Eryn Deblois of the Mann Law Group ably assisted at trial.
The case is Propet USA, Inc., v. Lloyd Shugart, U.S. District Court for the Western District of Washington at Seattle, Case No. C06-186 MAT.
The Ultimate Monopoly
We Dodged a Bullet!
Today the Supreme Court decided NOT to hear the LabCorp v. Metabolite case after all.
Good thing!
Patent law is confused enough already without the Good Justices weighing in on matters scientific.
Continue Reading...Promote the Progress?
A recent blog entry at Patently-O discusses the economics of so-called "patent thickets" (which, I gather, is the new name for what used to be called "a crowded art"). There's quite a bit of detailed and fascinating discussion concerning, among other things, the recent ebay decision and how patent owners in such a "thicket" will act, given that injunctions are (supposedly) no longer a foregone conclusion.
As I understand it, the question is whether an extensive "patent thicket" might result in more or less patent litigation and whether the ebay case will reduce or even increase patent litigation where such a thicket exits. While I don't purport to know or understand all the economic theory behind the competing views, I was struck by what I think is a misguided emphasis among the commentators. Why all the theorizing over what effect this will have on litigation and the propensity of patent owners to sue? Why all the concern whether this will encourage or discourage so-called "patent trolls"? Is the goal of the patent system simply to make life easier for lawyers and judges? Is it to let large companies steal technology with impunity? And (to be fair all around) is it simply to provide lucrative opportunities for contingent-fee patent trial lawyers like me?
The constitutional justification for the patent system is, of course, to "promote the progress of science and useful arts" -- not to provide patent lawyers with a comfortable living or to make life easier for federal judges. The question I have (and I really don't know) is whether the patent system is or is not fulfilling its mission of promoting the progress of science and useful arts. Has anyone actually done a scientific study of whether patents do promote scientific progress and whether the profound changes in the patent system over the past twenty four years have been effective in actually achieving that goal?
There's no question that the explosion in patent and IP growth has been great for lawyers. It's also been good for companies (both large and small) and even individuals able to exploit their patents. But again, the question is whether progress in science and useful arts has actually been promoted by what has gone on and what is presently going on. Frankly, I'm not sure anyone actually cares about this anymore.
