Thursday, February 23, 2017

Top Patent Classifications by District Court Determinations through 2016

Longer License Term Does Not Support Expert’s Increase in Royalty Rate

​ The court granted defendant's motion to exclude the testimony of plaintiff's damages expert regarding a royalty rate as unreliable for double-counting the duration of the rate. "[The expert] adjusts the hypothetical royalty rate upward by 5 cents to account for the fact that the hypothetical license would be 2.5 years longer than [a third party] license. However, he also opines that the hypothetical license would have resulted in a running royalty, as opposed to a lump sum. A running royalty supposes that the licensee will pay a per unit royalty. Without additional facts or testimony, a running royalty necessarily accounts for any longer duration through an increased royalty base. . . . There is simply no reliable support in the record for [plaintiff's] notion that [defendant] might pay more for earlier, guaranteed access to newer technology. In fact, such notion appears to be contradicted by other statements in [the expert's] report. . . . [T]he Court’s determination here that [the expert's] royalty rate improperly double counts is not a broader statement that Georgia-Pacific Factor 7 is per se inapplicable to a running royalty as a matter of law. . . . However, Plaintiff has not marshaled sufficient facts to show that such is the case here. . . . [A]ccordingly, [the expert] may not testify that an additional 2.5 years on the hypothetical license warrants an increase of 5 cents in his calculated running royalty."

Saint Lawrence Communications, LLC v. ZTE Corporation et al, 2-15-cv-00349 (TXED February 21, 2017, Order) (Gilstrap, USDJ)

Wednesday, February 22, 2017

New District Court Patent Cases through 2016

The judges chart has been updated to reflect the actual number of cases per judge, rather than their percentage of the overall cases. Please note that district judges and magistrate judges are many times on the same cases, so there will be an overlap of those judges' cases. Therefore, the total number of cases will not equal the sum of each individual judge's cases.

Willful Infringement Claim Does Not Require Allegation of Egregious Conduct​

The court denied defendant's motion to dismiss plaintiff's willful infringement claim for failure to state a claim. "Willful infringement requires that the plaintiff plead that the defendants were 'aware of the asserted patent but acted despite an objectively high likelihood that [their] actions constituted infringement of a valid patent.' The complaint adequately alleges that the defendants committed acts of infringement with full knowledge of the plaintiff’s rights in its patents. That is sufficient."

Crypto Research, LLC v. Assa Abloy, Inc. et al, 2-16-cv-01718 (NYED February 17, 2017, Order) (Donnelly, USDJ)

Willful Infringement Claim Requires Allegation of Egregious Conduct​

The court granted defendant's motion to dismiss plaintiffs' willful patent infringement claims for failure to state a claim. "Plaintiffs have failed to state a claim for willful infringement because they have failed to allege any facts suggesting that Defendant’s conduct is 'egregious . . . beyond typical infringement.' Plaintiffs have simply made the conclusory allegations that Defendant was aware of the [patent-in-suit] and that the 'continued offer, use, and promotion of its infringing social casino products . . . constitutes willful and egregious infringement behavior.'. . . [M]erely asserting that Defendant knew about the patent and continued its allegedly infringing activity is not enough to constitute willful infringement."

CG Technology Development, LLC et al v. Zynga, Inc., 2-16-cv-00859 (NVD February 17, 2017, Order) (Jones, USDJ)

Tuesday, February 21, 2017

Digital Data Remote Mirroring Patent Ineligible Under 35 U.S.C. § 101

​ The court granted defendant's motion for summary judgment of invalidity because the asserted claims of plaintiff’s digital data remote mirroring patent encompassed unpatentable subject matter and found that the claims were directed toward an abstract idea. "[Plaintiff] contends that the claimed invention is not directed to an abstract idea because it is an improved system of copying data. . . . [T]he Court agrees with [defendant] that the focus of the claims is the abstract idea of backing up data. . . . It is true, as [plaintiff] observes, that the specification identifies several disadvantages of the prior art back-up methods. . . . But the claims do not support [plaintiff's] contention. The claims do not provide any concrete details that limit the claimed invention to a specific solution to the problem of remote back-up of digital data. . . . Additionally, the claims use existing computer functionality as a tool to better back up data and do not themselves purport to improve anything about the computer or network itself. . . . Rather, the claims rely on the ordinary storage and transmission capabilities of computers within a network and apply that ordinary functionality in the particular context of remote mirroring. The specification's insistence that the claimed invention is an 'advancement' over the prior art does not overcome the Court's conclusion that the claims as written focus on an abstract idea."

Intellectual Ventures I LLC et al v. Symantec Corporation, 1-13-cv-00440 (DED February 16, 2017, Order) (Stark, USDJ)

Friday, February 17, 2017

Discovery Into Commission History of Intellectual Ventures Licensing Executive Allowed​

The court granted defendants' motion to compel the production of documents regarding prior licensing commissions earned by plaintiff's 30(b)(6) witness on licensing because the evidence was relevant and not cumulative. "[The witness] is a licensing executive at [plaintiff] and [plaintiff's] designated corporate representative witness on licensing. . . . Defendants argue that [the witness's] financial stake in the case grows larger as the expert’s damages number increases. Accordingly, Defendants maintain that to effectively assess [the witness's] credibility, a jury needs access to the full details regarding how much [the witness's] compensation will be impacted by the contingent payment. . . .They further assert that [plaintiff's] damages expert relies heavily on [the 30(b)(6)] witness testimony, and thus these opinions hinge on [his] credibility. . . . Defendants have presented a reasonable explanation for why the documents sought are not cumulative: evidence of past commissions received by [the witness] goes to showing the extent of potential bias [he] may exhibit in this current case, based on how much he stands to gain relative to past commissions. In short, Defendants seek information to place [his] potential fee in the current case in context. The information currently in Defendants’ possession speaks to the fact of [the witness's] potential bias; the information they seek relates to the extent of this alleged bias."

Intellectual Ventures II LLC v. AT&T, Inc. et al, 1-13-cv-00116 (TXWD February 14, 2017, Order) (Lane, MJ)