by Lee Gesmer | Oct 17, 2007 | Antitrust
Antitrust. It shouldn’t be a surprise that it might be illegal under the antitrust laws for a company with a 90% marketshare in a key, patented technology to agree as a member of a standards developing organization that it would license its technology on “fair, reasonable and non-discriminatory” (or FRAND) terms if that technology is included in the standard, and then, after adoption, violate that pledge. Nevertheless, a federal district court held that Qualcomm could not be held liable under the antitrust laws under these facts. In an important decision at the intersection of standard-setting and antitrust law the Third Circuit disagreed, reversing the lower court. Andy Updegrove addresses the case (and provides a link to the decision) in his article here, so I’ll defer to his extensive discussion and analysis.
by Lee Gesmer | Oct 17, 2007 | Readings and Novelties
Xconomy.com is a well written and produced web site that describes itself thus –
the authoritative voice of on the exponential economy, the realm of business and innovation characterized by exponential technological growth …
Sounds a little Wired/Gilder-like, true, but this is the best way I’ve seen to keep up with developments in the Massachusetts technology markets. For example, their October 17, 2007 article, Boston: The Hidden Hub of Music and Technology, with its list of local music/technology companies, is an example of the kind of thing you would be unlikely to find elsewhere.
by Lee Gesmer | Oct 16, 2007 | Courts, Litigation
Courts, Litigation. Back in the early 1980s, when I was new to the Massachusetts Bar, there was an effort by the organized bar to codify the rules of evidence. That effort failed, and to this day the rules of evidence are a confusing patchwork of common law and legislative enactment. The “go to” source for the law of evidence has been, in the memory of almost all living Massachusetts attorneys, the Handbook of Massachusetts Evidence (8th Ed. 2006), by the former Chief Judge of the Supreme Judicial Court, Paul Liacos, and currently edited by Mark Brodin and Michael Avery. (The previous editions of this work were published in 1940, 1948, 1956, 1967 (when Justice Liacos took over), 1981 and 1993). However, the long-dead phoenix of evidence codification may be rising from the ashes, albeit in a slightly different form. In 2006 the SJC established an advisory committee to develop a “Guide” to evidence (not to be confused with “Rules” of evidence), and that Guide is now in its proposed form. The draft Massachusetts Guide to Evidence is available here (a 226 page pdf file).
Not surprisingly, the Guide makes unabashed and extensive use of the Proposed Rules of Evidence which, although never formally adopted, have been cited in Liacos and to trial courts since their “non-adoption” in 1982. Go figure.
by Lee Gesmer | Oct 15, 2007 | Patents
Patent Law. Patent lawyers and their clients spend a lot of time worrying about willfulnesss. If a patent is infringed and the infringement is “willful,” the consequences can include treble damages and liability for the patent owner’s attorneys fees. The idea of paying the other side’s legal fees can be a terrifying prospect for most patent infringement defendants. Think of it as writing a blank check to your opponent’s lawyers.
To avoid this fate, a lot of time and money is spent before the fact on “clearance opinions”, that is, an opinion of a patent lawyer that a particular item or process does not infringe pending or issued patents. A good opinion (meaning an opinion by competent counsel, who is given all relevant information, and who conducts the analysis in advance of any legal claim or threat) is often viewed as an insurance policy when it comes to wilfullness. After all, if reputable counsel has told you that your product doesn’t infringe a patent, what more could you possibly do to establish that you have not willfully infringed?
Of course, many infringement actions are brought against defendants who have not bothered to obtain such an opinion (either due to cost concerns or ignorance), in which case the risk of willfulness can be a major factor in the risk analysis of the lawsuit.
But just what is “willfulness”? Until just a few years ago, merely failing to obtain a legal opinion gave rise to an inference of willfulness. However, that presumption was eliminated by the Federal Circuit (the specialized appeals court that reviews all patent cases decided by the district courts) in 2004 in the case of Knorr-Bremse Systeme Fuer Nutzfahrzeuge Gmbh v. Dana Corporation.
Most recently, in August 2007, the Federal Circuit went a step farther in its en banc decision in In re Seagate Technology, LLC. In this case the court created a two part test for willfulness:
first, a patent owner must prove “by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent. . . . The state of mind of the accused infringer is not relevant to this objective inquiry. And second, the patent owner must prove that this objectively-defined risk (determined by the record developed in the infringement proceeding) was either known or so obvious that it should have been known to the accused infringer.”
This presents a tough standard for a plaintiff claiming willful infringement. One might even read it to say that unless the alleged infringer knew of the patent it allegedly infringed, it hasn’t met the standard. Ignorance (at least sincere ignorance, rather than willful ignorance) is bliss. And, this standard is only the most recent move in a trend dating back at least 15 years in which the Federal Circuit has made it increasingly difficult for patent holders to establish willfulness.
The precise application of this “objective” standard will have to be worked out case-by-case by the trial courts and future decisions of the Federal Circuit, but it is clear that the pendulum continues to swing in the direction of safety for infringers in the realm of willfulness, just as it it does in other, more substantive, areas of patent law.
by Lee Gesmer | Jul 25, 2007 | Courts
Justia.com is a very cool new legal research site that I stumbled upon. What I particularly like is its “front end” for research in the Case Management/Electronic Case Files (ECF) system, which has become extremely comprehensive since most federal district courts now mandate electronic filing.
One part of the site, Federal District Court Filings and Dockets, gives much easier access to the ECF system than the ECF front end, which I’ve always found to be awkward. Justia allows you to look (for example) for all patent cases filed between any two dates, either nationally or in a particular district. Ultimately, Justia dumps you into the ECF system, and you have to be a paid subscriber to access PDF files at eight cents a page.
The site has a number of other interesting areas to explore, such as a Supreme Court center and a searchable collection of legal blogs and podcasts.
