Monday, August 22, 2016

Federal Circuit - Comment on IP Watchdog - Rule 36 Judgment: The growing problem of one word affirmance

Have you noticed how often the US Supreme Court disagrees with the Federal Circuit on patent cases? Some years they never agree! For example, Bleich et al. The Federal Circuit Under Fire notes the Supreme Court disagreed with the Federal Circuit on all six cases in 2013. The disagreements have continued. Despite this unsettling fact patent attorneys primarily turn to the Federal Circuit for guidance, because it has had exclusive jurisdiction over all patent appeals in the US since 1982 so has published the vast majority of the US patent law decisions that matter today.

Gene Quinn's article Rule 36 Judgment: The growing problem of one word affirmance by the Federal Circuit highlights the Federal Circuit is increasingly giving no explanation to support affirmances in 43% of the trial court decisions and nearly 50% of the USPTO decisions. Perhaps the Federal Circuit should at least cite the court decision(s) and give a pithy analysis of the law to the key facts it considered in affirming the decision below. Otherwise, this high rate of Rule 36 affirmance is reducing the primary source of case law for many practitioners.

Copyright © 2016 Robert Moll. All rights reserved.

Wednesday, August 17, 2016

Berkeley Center for Law & Technology - Patent Case Management Judicial Guide Updated

The Berkeley Center for Law & Technology (BCLT) recently published the third edition of the Patent Case Management Judicial Guide (treatise).

As stated in the abstract: "This treatise updates and expands upon the second edition of the Patent Case Management Judicial Guide (2012). Since that time, patent litigation has continued to increase in complexity. This edition encompasses implementation of the America Invents Act (“AIA”), the emergence of review proceedings at the Patent Trial and Appeal Board (“PTAB”), the Supreme Court’s many recent patent decisions (patent eligibility, claim construction, claim indefiniteness, infringement analysis (rejecting “joint infringement”), the intent requirement for induced infringement liability (rejecting a defense of good faith belief of a patent’s invalidity), and attorney fees), and the Federal Circuit’s damages jurisprudence (including damage awards for standard essential patents (SEP) licensed pursuant to fair, reasonable, and nondiscriminatory (FRAND) terms. It also includes case management checklists, model case management orders, and other materials developed by district judges and advisory bodies for streamlining patent case management. Finally, this volume adds a chapter on patent litigation at the Court of Federal Claims."

Today, BCLT emailed a notice that a hard copy of the Guide is available for purchase or can be downloaded for free: "The third edition of the Patent Case Management Judicial Guide (PCMJG3d), written by BCLT faculty director Peter Menell and a team comprised of some of the nation's leading patent litigators, is now available for purchase in hardcopy or for free electronically. The PCMJG, constructed around the stages of patent litigation, is designed for federal judges and their law clerks, but, for that very reason, is also highly valuable to litigators. The Federal Judicial Center publishes the PCMJG for judges. Patent practitioners may purchase copies though Clause 8 Publishing at very modest cost. Moreover, recipients of this email can use discount code "HM978SBZ" to obtain 15% off at the Clause 8 eStore. In addition, Clause 8 Publishing offers a 20% discount and free shipping for bulk orders (10 sets or more). Please have your law firm or in-house librarian contact Professor Peter Menell at to place a bulk order.

The PCMJG3d (all 1214 pages!) can also be downloaded for free from SSRN at this link."

No I don't work for BCLT, but this is an amazing thing in a world where nearly all things of such value have a cost.

Copyright © 2016 Robert Moll. All rights reserved.

Monday, August 15, 2016

Berkeley Center for Law & Technology - Patent Damages

Today, the Berkeley Center for Law & Technology emailed a notice and a paper on patent damages:

"On March 3, 2016, the Berkeley Center for Law & Technology hosted a day-long workshop on patent damages, one of the most important and contentious topics in patent law and policy. Organized by Professors Stuart Graham (Georgia Tech, Scheller College of Business), Peter Menell (BCLT Director and Berkeley Law), Carl Shapiro (Haas Business School at UC Berkeley), and Tim Simcoe (Boston University Questrom School of Business), the workshop brought together in-house counsel, litigators (from both the assertion and defense sides), patent licensing professionals, testifying expert witnesses, and academics (both law professors and economists).

Today, Profs. Graham, Menell, Shapiro and Simcoe issued a paper summarizing the workshop discussion, key findings, and ramifications for patent case management. The paper includes a background memo summarizing patent damages law prepared by Professors Thomas Cotter (Univ. of Minnesota Law School) and John Golden (Texas Law). The organizers welcome your feedback on this report and hope to continue a conversation with all interested parties regarding patent damages."

Copyright © 2016 Robert Moll. All rights reserved.