Unilateral Prosecution Bar Approved for NPE’s Counsel

The court granted defendants' motion for a unilateral prosecution bar against a NPE plaintiff in the parties' protective order. "A unilateral prosecution bar is appropriate in this case. . . . The possibility of future product plans potentially being contained in the confidential information is not sufficient to impose a prosecution bar on defendants’ counsel. [Plaintiff] also argues that a unilateral prosecution bar is nonsensical because its attorneys do not prosecute patents. The fact that the prosecution bar on [plaintiff's] counsel may end up being moot does not mean a similar bar should be placed on defendants’ attorneys. The parties in this case are not similarly situated. Since [plaintiff] does not currently sell any products, there is no corresponding risk of inadvertent disclosure and misuse. Therefore, the prosecution bar should be limited to [plaintiff's] attorneys who review defendants’ highly sensitive information."

Smartflash LLC et al v. Apple Inc. et al, 6-13-cv-00447 (TXED May 12, 2014, Order) (Mitchell, M.J.)