A Legal Blog by Aaron | Sanders, PLLC

Pre-Filing Investigations Are Sometimes Pretty Important!

It might be just as important not to be a jerk about it.

How badly does a patentee have to anger the trial judge before it is sanctioned for bad faith litigation?  Apparently, the patent-holding company Eon-Net managed to cross that line by (1) failing to investigate its claims before filing, (2) relying on a crazy claim construction, and (3) being a serial litigant that routinely settles for less than the cost of defense.  Plus a side of document destruction, and a dollop of arrogance.

The following paragraph from the Federal Circuit opinion neatly sums up the importance of pre-filing investigations and not following a client’s wishes blindly:
Eon-Net argues that it is not improper for a patentee to vigorously enforce its patent rights or offer standard licensing terms, and Eon-Net is correct. But the appetite for licensing revenue cannot overpower a litigant’s and its counsel’s obligation to file cases reasonably based in law and fact and to litigate those cases in good faith. Here, the district court did not clearly err when it found that Eon-Net filed an objectively baseless infringement action against Flagstar and brought that action in bad faith, specifically to extract a nuisance value settlement by exploiting the…

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Is Copyright Law Just a Jedi Mind Trick?

You Might Need to Be a Jedi to Separate Form from Function in a 3D Object

How a Small Difference Between British and US Copyright Law Made a Big Difference

There’s been a good deal of buzz on some of geekier websites that I frequent about this decision.*  At first, it was portrayed as a huge loss by a Goliath at the hands of a David over ownership of the intellectual property in the Stormtrooper’s helmets from Star Wars.  Quickly, though, a more accurate narrative emerged.  While it really was a victory for David over Goliath–and the victory really was big for David (you have to admire him for sticking to his guns)–it wasn’t so terrible for Goliath.  Goliath got to keep the copyright on the Stormtrooper Helmet design, but it now has to tolerate the manufacture and sale by our “David” (or anyone else in the UK) of articles based on that design.  (Of course, our “David” can do the job better because he has the actual molds!).

*  The decision was rendered by the Supreme Court of the United Kingdom, which is the highest civil court there.  Before 2009, these judges were known as the “Law Lords,” which…

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Secondary Liability and eCommerce Licensing Strategies

Or, How to Keep Your Customers’ Bad Acts from Getting on You

Eighth Annual eCommerce Best Practices Conference, Part 2
Stanford University, June 24, 2011

The first panel was probably my favorite, in part because the topic was so timely.  Secondary liability in intellectual-property law occurs when you yourself don’t infringe a patent, copyright or trademark, but you knowingly cause or induce to do so, or contribute materially to the infringement.

It’s a very big deal in eCommerce because typically the primary infringers are a multitude of individual consumers, who are hard to track down and identify, don’t have a lot of money, and can’t be sued very efficiently (not that some folks haven’t tried….).  It would be preferable if you could just sue the alleged source of the problem:  perhaps the owner of the website that is hosting the infringing content, or the maker of the software the enables the mass infringement, etc.  File-sharing is the classic example of this.

The law, naturally, is reluctant to cast so wide a net.  If we held the manufacturer of a useful device liable for its infringing misuse, we would all be the poorer.  If we destroyed every website that hosted potentially infringing…

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