Stanford Law School Professor Mark A. Lemley has published a draft paper, Where to File Your Patent Case.
Lemley started with the assumption that plaintiffs frequently look for forums that favor patentees, where cases go to trial (summary judgments strongly tending to favor defendants), and that move cases along quickly. Defendants are likely to want the opposite, a forum that is unlikely to send cases to jury trial, that regularly rules for defendants, and that takes a long time to do both.
He analyzed outcome data from 21,667 patent cases that were resolved at the District Court level. The findings:
- Plaintiff-friendly courts include those in the Middle District of Florida, the District of Delaware, the Eastern District of Virginia, and the Western District of Wisconsin.
- Contrary to common wisdom in some circles, the Eastern District of Texas is not especially hospitable to plaintiffs in patent infringement suits.
- Accused infringers should try to litigate in the Eastern District of Wisconsin, the Southern District of Ohio, or the District of Columbia.
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.
In a recently-decided case (JustMed v. Byce), the U.S. Court of Appeals for the Ninth Circuit decided that a software developer was an employee, rather than an independent contractor, even though the parties had completed almost no employment-related paperwork.
Byce took over development of JustMed’s software from an employee who had moved out of state. Byce’s compensation – the same as his predecessor’s – was 15,000 shares of JustMed stock (valued at $0.50 per share) per month.
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Office Depot won a judgment against John Zuccarini under the Anticybersquatting Consumer Protection Act of 1999 (15 U.S.C. § 1125(d)) based on Zuccarini’s bad-faith registration of the domain name <offic-depot.com>, which was confusingly similar to <officedepot.com>.
Office Depot was unable to collect on its monetary judgment against Zuccarini, so it assigned that judgment to DS Holdings (“DSH”). DSH sought to levy against 190 <.com> domain names owned by Zuccarini and for which VeriSign controls the registry (a receiver having been assigned to auction off the domain names). Zuccarini (representing himself!) argued that DSH should be required to levy upon the domain names where their respective registrars are located, rather than at VeriSign’s single location.
The United State Court of Appeals for the Ninth Circuit held (Office Depot v. Zuccarini) that DSH could levy on the domain names either at VeriSign’s location (the Northern District of California) or at the registrars’ locations.
What we should learn from this case:
- Cybersquatting – especially when the victim is a large company – is a bad idea.
- Representing yourself in a litigation or its appeal – especially if you are not a litigator – is a bad idea.
- Domain names are intangible property.
- Domain name can be seized to satisfy a judgment.
Check out all posts about cybersquatting.
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.
Korean War Veterans Memorial
As I wrote several months ago, the “fair use” defense to copyright infringement often is poorly understood. A recent court case shows that we can add the U.S. Postal Service to the list of those who mistakenly believed that their infringing activities were protected as fair use.
Frank Gaylord created, and registered the copyrights for, soldier sculptures in formation constituting part of the Korean War Veterans Memorial.
John Alli took a photo of the Memorial. The Postal Service paid Alli $1,500 for the right to use that photo for a 37-cent stamp commemorating the 50th anniversary of the armistice of the Korean War. Alli told the Postal Service that it would need permission from the owner of the copyright in the sculptures; the Postal Service did not seek such permission.
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On December 28, 2009, RockYou, a developer of applications for Facebook and other social networks, was sued in the U.S. District Court for the Northern District of California. The class action complaint alleges failure to encrypt users’ e-mail addresses and passwords and was filed shortly after a hacker copied that information for 32 million RockYou users.
RockYou’s potential exposure is huge. Among the various causes of action are:
The lesson for any company that stores users’ personally identifiable information: Make sure that information is encrypted!
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.
On August 28, a federal court jury awarded Louis Vuitton Malletier, S.A. $32.4 million in a suit against two Internet Service Providers and their owner for trademark and copyright infringement.
The jury concluded that:
- The ISPs knew, or should have known, that their customers were selling, online, counterfeit goods that infringed LV trademarks and copyrights.
- The ISPs willful contributed to sales of the counterfeit goods.
- The ISPs were not entitled to the “safe harbor” protections of the Digital Millennium Copyright Act (see How Websites Can Avoid Liability for User-provided Content).
The moral: The DMCA will protect ISPs that play by the rules, but it will not protect ISPs that intentionally violate the intellectual property rights of third parties.
The jury’s verdict is a pretty interesting document because it lays out, step by step, each of the elements of infringement and asks the jury to vote “Yes” or “No” for each element.
Update: On September 9, 2011 the Court of Appeals for the Ninth Circuit affirmed the trial court decision as concerns defendants’ liability, but remanded the case to the trial court to reduce the amount of damages $32.4 million to $10.8 million, because only one set of statutory damages may be awarded (rather than multiplying statutory damages by the number of defendants) (Louis Vuitton Malletier v. Akanoc Solutions).
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.
September 22nd, 2009
Dana
Two U.S. District Court cases – Io Group, Inc. v. Veoh Networks, Inc. (8/27/2008) and UMG Recordings, Inc. v. Veoh Networks, Inc. (9/11/2009) – offer a recipe by which Internet-based service providers can avoid liability for user-provided content.
Update: UMG v. Veoh was affirmed by the Court of Appeals for the Ninth Circuit on December 20, 2011.
The cases are similar. Veoh operates an Internet-based service that allows users to share videos with others free of charge. Io and UMG (Universal Music Group) brought separate suits, each alleging that Veoh engaged in various forms of copyright infringement because it allowed users to upload videos that infringed the plaintiffs’ copyrights.
In each case, Veoh obtained a summary judgment in its favor based on compliance with the “safe harbor” provision of the Digital Millennium Copyright Act (DMCA), codified at 17 U.S.C. Section 512 (Limitations on liability relating to material online).
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Last month I posted You May Be a Software Pirate and Not Even Know It. The issues raised there now apply to equally content.
The Software & Information Industry Association is pursuing unlicensed use of content as aggressively as unlicensed use of software. For example, as recently reported in InfoWorld and elsewhere, Knowledge Networks agreed to pay SIIA $300,000 to settle a complaint that it distributed news articles to its employees without permission of the copyright owners. Similarly, in a media release earlier this year, SIIA announced that it was aggressively fighting graphics content piracy by filing lawsuits against individuals and companies that copied and distributed clip art without appropriate licenses. In another media release, SIIA touted the use of paid whistleblowers to help SIIA find infringers.
The implications are clear: Whether the subject is software, content or any other works of authorship, use and distribute the products only to the extent that you are authorized to do so by the terms of the applicable licenses.
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.
I am not a litigator (trial attorney), so I normally do not write about litigation. Recently, however, I have discussed several matters where small-claims court seems appropriate, so I will share some basic information about small-claims cases in California.
The CA Courts’ Small Claims Self-Help Center provide extensive, detailed information. The most important point to understand is that small-claims court judgments are limited to ordering the payment of money. You cannot, for example, ask a small-claims court to order that the defendant stop infringing a patent or trademark.
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Dana Shultz is a business-savvy lawyer located in Northern California's San Francisco Bay Area (in the East Bay, near Oakland) who has in-depth knowledge of law, business, technology, and the needs of startup and early-stage companies.