As experienced trial lawyers know, successfully trying or defending a case is all about presenting a compelling, understandable theme and narrative that comports with a judge and jury’s common sense and experience. Juries especially are prone to favor litigants and lawyers they like and case theories they easily understand. That is human nature on display… Continue Reading
Category Archives: Patent Litigation
Subscribe to Patent Litigation RSS FeedIs it Time for Federal Courts to Stop Exercising Jurisdiction Over Patent Legal Malpractice Claims?
Posted in Conflicts of Interest, Expert Witness, Federal Jurisdiction, Legal Malpractice, Patent Litigation, Patent Prosecution, Rules of Professional ResponsibilityDuring past month when many patent practitioners may have been distracted by the “laws of nature” meaning of the Mayo v. Prometheus decision, the Court of Appeals for the Federal Circuit issued four precedential rulings confirming the exclusive authority of federal courts to adjudicate patent legal malpractice claims. Only the Supreme Court can alter this… Continue Reading
The Jurisdictional Power of the “Case-Within-A-Case” Doctrine in Patent Legal Malpractice Litigation
Posted in Inequitable Conduct, Patent Litigation, Proximate CausationThe Federal Circuit’s recent precedential decision, Warrior Sports, Inc. v. Dickenson Wright, P.L.L.C. (issued on January 11, 2011), demonstrates (once again) the sheer power and ability of the “case-within-in-case” doctrine to jurisdictionally transform a state law malpractice claim into a case arising under federal patent law. In an unusual twist, the Warrior Sports plaintiff… Continue Reading
“It’s Too Late Baby, Now It’s Too Late Though We Really Did Try to Make It”: The Perils of Missing Patent Litigation Deadlines
Posted in Patent LitigationThe recently concluded (and now appealed) Gardner v. Toyota Motor Corporation patent case offers yet another important lesson in the pitfalls of missing case schedule deadlines. These deadlines inundate patent litigation, especially with the advent of many local patent rules. Even the best substantive points and arguments can turn sour when they are brought by… Continue Reading
The Sangamon River as Abe Lincoln’s Mother of Invention
Posted in Inventor Witness, Patent Litigation“Then, I said, let us begin and create in idea a State; and yet the true creator is necessity, who is the mother of our invention.” In tracing the lineage of perhaps the most popular bromide about the inventive process, I discovered (somewhat to my surprise) that the saying “necessity is the mother of invention”… Continue Reading
Jury Notes and Special Verdicts in Patent Cases: A Case Study in Jury Comprehension
Posted in Jury Instructions, Patent Litigation, Patent PleadingsIt is commonplace to bemoan the lack of juror comprehension in patent cases and to describe jury deliberations as a “black box” resisting analysis. The Federal Circuit favors the use of special jury verdicts to alleviate such criticisms. Special verdicts can focus jury attention on the facts that may or may not support key patent findings… Continue Reading
Tracking Down the Elusive Obviousness Special Verdict Form
Posted in Jury Instructions, Patent LitigationJudges and legal commentators have long cautioned patent practitioners about the pitfalls of “obviousness” jury determinations that pose only the ultimate question: Has defendant proven by clear and convincing evidence [or that it is highly probable] that Claim X of the ’123 Patent is obvious? Yes ____ No ____. Whether the answer is yes or… Continue Reading
Twin Challenges in Drafting a Viable Patent Legal Malpractice Complaint
Posted in Federal Jurisdiction, Legal Malpractice, Patent Litigation, Patent PleadingsDrafting a short and plain statement of a patent legal malpractice claim used to be a relatively straightforward matter under the now discredited Conley v. Gibson “no set of facts” standard. That pleading landscape dramatically changed in 2007. In the wake of the Supreme Court’s Twombly and Iqbal decisions, federal court judges are now routinely called… Continue Reading
Exclusive Federal Court Jurisdiction Over Patent Legal Malpractice Claims: Where Are We?
Posted in Federal Jurisdiction, Patent LitigationHave the twin Air Measurement and Immunocept decisions succeeded in establishing an exclusively federal forum for patent legal malpractice claims? The answer is: NOT YET. That inconclusive answer makes crafting your claim theories and drafting a well pleaded complaint or answer critical, if your goal is to have a federal court decide the merits of… Continue Reading
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