The Federal Trade Commission has asked for en banc review of the D. C. Circuit’s decision in the FTC’s Rambus proceeding. I expect this case to be appealed to the Supreme Court, and given the Court’s propensity to accept antitrust cases over the last several years and the importance of this case, the case stands a better-than-average chance of being accepted for review by the Court. Of course better-than-average is still difficult, so the FTC shouldn’t get its printing presses warmed up quite yet.
Whether a plaintiff states a claim under Section 2 of the Sherman Act by alleging that the defendant – a vertically integrated retail competitor with an alleged monopoly at the wholesale level but no antitrust duty to provide the wholesale input to competitors – engaged in a “price squeeze” by leaving insufficient margin between wholesale and retail prices to allow the plaintiff to compete.
The Ninth Circuit held that there was an antitrust duty, and Pacific Bell is appealing that ruling. The SCOTUS blog page for this case is here.
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I strongly recommend that patent and antitrust attorneys read Massachusetts U.S. District Judge Stearns’ recent decision in Hertz v. Enterprise Rent-A-Car. (Warning; non-lawyers should steer clear).
Hertz sued Enterprise under the Sherman Antitrust Act. At issue is Enterprise’s patent 7,275,038, an Internet-based computerized transaction system for the car rental business.
Hertz, threatened by the prospective (and then actual) issuance of this patent brought suit for declaratory judgment of non-infringement on a variety of grounds, each of which was considered by Judge Stearns in considering Enterprise’s motion to dismiss.
The difference between an “amended complaint” and a “supplemental complaint” and its relevance to jurisdictional issues in this case.
The level of specificity necessary to plead fraud-related claims arising in a patent context.
The pleading requirements for a claim of tortious interference with advantageous business relations under state law.
The pleading requirements under M.G.L. c. 93A where the complaint fails to allege that the anticompetitive effects of defendant’s actions were felt primarily and predominantly in Massachusetts.
Whether there is sufficient case or controversy to support a declaratory judgment action under the Supreme Court’s 2007 decision in MedImmune, Inc. v. Genentech, Inc., 127 S. Ct. 764 (2007), which supplanted the “reasonable apprehension of imminent suit” test with a more lenient standard for declaratory judgment actions in patent cases.
Whether the patent complaint stated “plausible claims” as required by the Supreme Court the 2007 antitrust decision in Bell Atlantic v. Twombly (and which Judge Stearns held applies to patent-based claims).
Enjoy, legal mavins …..
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When lawyers win a trial they like to publicize their efforts in a “war story” article. After all, one of the best parts of winning is the bragging rights.
These stories often are so self-serving they aren’t worth reading, but I have to recommend the article recently published on the ABA’s “Antitrust Source” website: Defending “The Last Man Standing”: Trench Lessons from the 2008 Criminal Antitrust Trial, United States v. Swanson. The defense lawyers in this case describe in detail how they took on a criminal price fixing conspiracy case brought by the government, and obtained a hung jury after an lengthy trial. The feds declined to retry the case, so this was a de facto win. The article describes all of the problems faced by the defense, which was representing an individual executive, Gary Swanson: witnesses who had pleaded guilty and were testifying for the government; an enormous volume of discovery materials, language issues (Korean), emails that were extremely damaging (at first sight), and more.
Lawyers from out of state often ask me about the judges that their cases are assigned to in federal district court. What are they like? What’s their philosophy? Are they pro-plaintiff or pro-defendant? (good luck on the last one …).
Most of these judges hold their cards close to their chests, but U.S. District Judge William Young is an exception. His keynote speech before at a Florida Bar event last June is on the Boston Bar Association website, and any lawyer practicing before Judge Young is well advised to read it, along with Judge Young’s 2004 decision on the federal sentencing guidelines. Judge Young’s judicial philosophy is clearly spelled out in these writings, and you’ll be far better prepared appear in his courtroom if you’ve read them.
[the database] contains, for each instance a video is watched, the unique “login ID” of the user who watched it, the time when the user started to watch the video, the internet protocol address other devices connected to the internet use to identify the user’s computer (“IP address”), and the identifier for the video. . . . That database (which is stored on live computer hard drives) is the only existing record of how often each video has been viewed during various time periods. Its data can “recreate the number of views for any particular day of a video.” [Viacom] seek[s] all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party
website.
In addition to this database, YouTube was ordered to produce copies of the millions of videos that had been deleted from YouTube.
Whew! Just a few, eh? My favorite quote from this decision is the judge’s offhand comment that “while the Logging database is large, all of its contents can be copied onto a few “over-the-shelf” four-terabyte hard drives.” (Sorry Judge, you can’t get those at Best Buy ….).
This order, when complied with, is certain to set a new record for a document production in U.S. litigation, or for that matter litigation anywhere, ever. Twelve terabytes (three four-terabyte drives) would hold 12 thousand billions bytes (or characters). Thats 12 trillion bytes, or 12 followed by 12 zeros.
Google is involved in a separate copyright suit over Google Book Search, and all of this makes me wonder what will happen if Google is ordered, in that case, to produce the digital database of all the books that it has scanned. How many bytes would that be? A googol?
Judge have fully caught on to the fact that in electronic discovery size just doesn’t matter. No lawyer will ever again be able to say, with a straight face, those venerable words that applied for so many years to paper document productions: “that’s too much data, your Honor. It would be overly burdensome.” With this court order electronic discovery has truly entered a new era.
Trademarks are meant to identify the source of products and services.
Do you get confused between Coca Cola and Pepsi Cola? Between Payless Shoes and Comfort Shoes? Between Domino’s Pizza and Papa John’s Pizza? Probably not. “Cola,” “shoes” and “pizza” are what trademark law classifies as “generic” terms – they describe the product, not its source or origin. If someone started selling a drink called “Rockstar Cola,” Coke and Pepsi would have no legal grounds for objection. The “cola” part of their trademarks are generic, and in a trademark infringement suit a court’s focus would be on the first word in the trademark, “Rockstar.” On the other hand, if someone started selling Koka Cola or Popsi Cola, the lawyers for Coke or Pepsi would be working overtime to prepare their lawsuit.
Now let me ask you a question that might be part of a “trademark survey” – a survey designed to determine how strong a trademark is, whether two trademarks are confusing, or whether a trademark is generic:
What do you call a sightseeing tour that uses an amphibious vehicle to transport tourists on land and water?
What other names, if any, do you use to refer to this type of sightseeing tour?
Did you answer “duck tour” to the first question and “don’t know” to the second? If you did you went right to the heart of the First Circuit Court of Appeals’ decision in Boston Duck Tours v. Super Duck Tours. And, you did very quickly what it took two federal courts almost a year and 85 pages of turgid legal prose to do.
The issue in this case (linked at the bottom of this post) was straightforward: Did Super Duck Tours infringe the trademark of Boston Duck Tours by offering duck tours in Boston? U.S. District Judge Nathan Gorton concluded that it did, and issued a preliminary injunction in July 2007, ordering Super Duck Tours to stop using this name.
Last month the First Circuit reversed, holding that the term “duck tours” is generic (it describes the service, not the source of the service). A “duck tour,” the First Circuit concluded, is generic for amphibious, sightseeing tours. Consumers were unlik ely to focus on the generic “duck tour” part of the overall mark (any more than they would focus on “cola” in comparing Coca Cola and Pepsi Cola), and instead use “Boston” and “Super” to differentiate between the two marks at issue. In reaching this conclusion the First Circuit noted that the media often used “duck tours” to refer to amphibious sightseeing tours; that “duck tours” was used by many other companies around the country that provide the same or similar services; and that Boston Duck had used the term “duck tours” generically in its own marketing literature.
There’s a great deal more to the First Circuit’s decision in this case. In fact, the opinion is likely to be an important guide to the application of trademark law in the First Circuit Court of Appeals for many years. And, I’ll resist the temptation to make duck jokes about this case, as so many lawyers and commentators have done already; none of them can touch the Marx Brothers.
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Lawyers from out of state often ask me about the judges that their cases are assigned to in federal district court. What are they like? What’s their philosophy? Are they pro-plaintiff or pro-defendant? (good luck on the last one …).
The issue in this case (linked at the bottom of this post) was straightforward: Did Super Duck Tours infringe the trademark of Boston Duck Tours by offering duck tours in Boston? U.S. District Judge Nathan Gorton concluded that it did, and issued a preliminary injunction in July 2007, ordering Super Duck Tours to stop using this name.