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In an environment in which widely adopted technical standards may each be covered by large numbers of patents, there have been increasing calls for courts to determine "fair, reasonable, and nondiscriminatory" (FRAND) royalties payable to holders of standards-essential patents (SEPs) using "topdown" methodologies. Top-down royalty approaches begin with the aggregate royalty that should be payable with respect to all SEPs covering a particular standard, and then allocate a portion of the total to individual SEPs. Top-down approaches avoid many drawbacks associated with bottom-up approaches in which royalties for individual SEPs are assessed, often in an inconsistent and piecemeal manner, without regard for the other SEPs that cover the standard. Yet despite the potential benefits of top-down methodologies, one of the most promising means for determining aggregate royalty levels--joint agreement by the members of the relevant standards-development organization (SDO)--has gained little traction. The idea of SDO participants jointly negotiating FRAND royalties attracted the attention of commentators and antitrust agencies about a decade ago, when a handful of SDOs began to explore mandatory ex ante rate disclosure requirements. But few SDOs adopted such policies, and joint negotiations were never incorporated into the mainstream standardization process. One reason that SDOs have been hesitant to endorse joint royalty negotiations is the perceived risk of antitrust liability arising from concerted action among competitors. But as numerous commentators and antitrust officials have reiterated, this fear is largely misplaced in the context of industry standardsetting. Thus, SDOs should follow the lead of patent pools and begin more actively to determine aggregate patent royalty burdens for standards that they develop. In addition, antitrust and competition authorities should assure the market that collective agreement on aggregate royalty rates alone should not give rise to antitrust liability. [ABSTRACT FROM AUTHOR]

This Article undertakes a broad-based empirical review of intellectual property ("IP") litigation in U.S. federal district courts from 1994 to 2014. Unlike the prior literature, this study analyzes federal copyright, patent, and trademark litigation trends as a unified whole. It undertakes a systematic analysis of the records of more than 190,000 cases filed in federal courts and examines the subject matter, geographical, and temporal variation within federal IP litigation over the last two decades. This Article analyzes changes in the distribution of IP litigation over time and their regional distribution. The key findings of this Article stem from an attempt to understand long-term patterns in the filing data as well as short-term deviations from various trends. This data-driven approach has yielded insights in relation to such diverse topics as Internet filesharing litigation, the true impact of patent trolls on the level of patent litigation, and the extent of forum shopping and forum selling patent litigation. Just as importantly, this Article lays the foundation for planning and evaluating future empirical studies of IP litigation with a narrower focus. Many of the results and conclusions herein demonstrate the dangers of basing empirical conclusions on narrow slices of data from selected regions or selected time periods. [ABSTRACT FROM AUTHOR]

One of the greatest challenges facing patent holders is the enforcement of their rights against foreign (non-US) infringers. Jurisdictional rules can prevent patent holders from filing patent infringement suits where they have the greatest likelihood of success in enforcement, such as where the infringer is located, has its seat, or holds its assets. Instead, patent holders must file lawsuits in the country where the infringed patent was issued. But filing a patent lawsuit in a US court against a non-US infringer may be subject to various difficulties associated with the fact that US substantive patent law (particularly as regards its territorial scope) and conflict of laws rules are not always compatible and interoperable with the conflict of laws rules of other countries. Such insufficient compatibility and interoperability can lead to US judgments not being enforceable outside the United States. In the Hague Conference's Judgments Project, which the Conference relaunched in 2012, the United States has an opportunity to negotiate internationally-uniform conflict of laws rules to improve cross-border litigation, including cross-border patent litigation. This Article provides data on cross-border patent litigation that can be used to show the extent of the cross-border patent litigation problem and assist in assessing the appropriate degree of US involvement in the Judgments Project. The Article updates the author's earlier research on cross-border aspects of patent litigation, contributes to the rapidly growing body of empirical literature on patent litigation (including the literature on the "patent troll" phenomenon), and enriches the literature on foreign litigants in patent disputes and on transnational litigation in general (both of which suffer from a dearth of statistical data). [ABSTRACT FROM AUTHOR]

It is widely argued that so-called “patent trolls” are corrupting the U.S. patent system and endangering technology innovation and commercialization at large. For example, a recent White House report argued that “trolls” hurt firms of all sizes and advocated for specific policies aimed at curtailing practices thought to be particularly harmful. Yet the existence and extent of any systematic effects of so-called “troll-like” behavior, and the implications of modern patent assertion practices by Non-Practicing Entities (“NPEs”), remains unclear. This article develops novel empirical evidence to inform the debate over NPEs on patent litigation. Specifically, we conduct a large-scale empirical analysis of more than 1,750 patent infringement cases decided by a judge or jury in U.S. district courts between 1995 and 2011. We focus on case outcomes, including findings of validity and infringement, and the distributions and values of resulting damage awards. We find some relatively small differences in terms of lower success rates and award values in cases where the patent holders are NPEs. Yet across the subset of cases in which damages are awarded to the patent holders, we find no significant differences in the distribution of awards between NPEs and practicing entities. Nonetheless, there are substantial differences in litigation behavior, success rates, and award values among types of NPEs (that is, universities, individuals, and Patent Assertion Entities (“PAEs”)). Moreover, we find evidence of certain NPEs engaging in strategic and rational patent acquisition, assertion, and settlement-licensing practices. We posit that these practices may reflect, or perhaps derive from, the economic separation of patent rights from their underlying technologies that is represented in NPE approaches to patent assertion. [ABSTRACT FROM AUTHOR]

In Bayer Healthcare Pharmaceuticals, Inc. et al. v. Watson Pharmaceuticals, Inc. et al. 713 F.3d 1369 (Fed. Cir. 2013), the Federal Circuit reversed the District Court's grant of summary judgment and found the asserted patent claims obvious in view of the cited prior art. Neither the Federal Circuit nor the District Court addressed the issue of commercial success despite the fact that the patentee had submitted evidence of commercial success in its opposition to Defendants' motion for summary judgment (but not in support of its own motion for summary judgment). This case report presents the decision of the District Court, the arguments made to the Federal Circuit by the parties and how the Federal Circuit addressed these issues. [ABSTRACT FROM AUTHOR]

The article discusses two patent infringement cases related to implementation of new rules to determine reliability of expert damages analysis. Topics discussed include judicial trends for patent remedies, principles of legal pragmatism and decisions of district courts. Also mentioned are principles on patent damages, hiring of several economic experts and applications of Apple Inc. iphones.

The article examines the development of public interests factors in federal district court and the U.S. International Trade Commission (ITC) patent litigation. It discusses Professor Robert Merges's theories regarding intellectual property and assesses the effectiveness of the public interest consideration in patent litigation. It presents cases highlighting patent rights and public interests including eBay Inc. v. MercExchange LLC and Robert Bosch LLC v. Pylon Manufacturing Corp.

When parties jointly move to vacate otherwise proper rulings as part of a settlement agreement, district courts often oblige. While the general practice of vacating rulings to facilitate settlement has been criticized in the academic literature as depriving the public of the benefit of judicial precedents, there are hardly any empirical studies on the prevalence of this practice and its effects, particularly at the district court level where the efficiencies arising from settlement--and the resulting pressure on the court to grant vacatur--are much greater compared to the appellate level. This Article endeavors to add an empirical study to the literature on settlement-related vacatur, focusing on district courts in the specific context of patent litigation. In patent cases, the impact of vacating rulings on the public interest is most acute where the affected ruling pertains to the scope, validity, or enforceability of a patent because the cost of relitigating those issues--without the economy of collateral estoppel--may dissuade potential challenges to suspect patents or unmeritorious infringement claims. The empirical study analyzes a dataset of 79 patent cases in which settlement-related motions for vacatur were filed over a five-year period (January 2006 to January 2011) that targeted certain rulings adverse to patentees. In those 79 cases, motions for vacatur were granted in 62 cases (78.5%), denied in 15 cases (19%), and withdrawn by the parties in 2 cases (2.5%). The data reveal that district courts appear to prioritize near-term docket management concerns when granting vacatur--even when it would undermine judicial economy and the public interest. Indeed, district courts routinely granted vacatur without providing a reasoned explanation, without regard to the litigation history of the patent or the litigiousness of the patentee, and with a degree of alacrity that would effectively prevent interested third parties from filing timely motions to intervene to oppose vacatur. Overall, the data suggest that granting settlement-related vacatur is a false economy: it leaves the judiciary vulnerable to manipulation, and burdens the public with the anticompetitive effects of weak patents. [ABSTRACT FROM AUTHOR]

The article offers information regarding the importance of U.S. patent laws for the Canadian companies for their increased involvement in the U.S. economy. It discusses an overview of the key points of the patent litigation process and the prospects of patent infringement lawsuits in the U.S. also discussed are the basics of patents, costs related to patent disputes in the U.S., and filing of a complaint in a U.S. district court.

The article offers a case report presenting the arguments made at the U.S. District Court and Federal Circuit in In re Brimonidine Patent Litigation, and also discussing how each of these courts addressed the issues raised by the parties. In this case, the Federal Circuit reversed the U.S. District Court for the District of Delaware's holding that Exela PharmaSci, Inc. literally infringed U.S. Patent No. 6,641,834 and also reversed the District Court's decision.

The article examines aspects of best mode requirement in the U.S. It evaluates the arguments advanced by both proponents and opponents of the best mode requirement. It analyzes the decisions of patent cases from U.S. federal districts courts, the Court of Appeals for the Federal Circuit, and the Board of Patent Appeals and Interferences. Also discussed are the recommendations for radical change of the best mode requirement.

The article examines the alleged prejudice of the International Trade Commission (ITC) in its patent infringement cases in the U.S. It assumes to use the decisions of district courts as bases for review with ITC's judgments. Results from the review reveal that ITC favors patent holders more than district courts and grants injunctive help as a remedy for infringement more frequently.

Over the past few years, patent law reform has been a hot topic of congressional debate. The cost arid complexity of patent litigation and the frequency with which district judges are getting reversed on questions of claim construction are often cited as cause for alarm. Heeding the calls for reform, a patent pilot program for district courts was recently unveiled in the U.S. Congress in an attempt to address both of these concerns. The pilot program sailed through the U.S. House of Representatives without opposition. The U.S. Senate has yet to consider the companion bill. This Comment introduces the pilot program and examines whether the concept of judicial specialization through an increased patent caseload is likely to result, as the bill's proponents argue. Judicial specialization for patent cases is popular in other countries; however, it has yet to catch on at the trial court level in the United States. While judicial specialization has a number of associated benefits, negative aspects, such as a likely increase in forum shopping, cannot be ignored. After exploring the costs and benefits of specialization, this Comment reviews the mechanics of getting into the pilot program. It then presents an original empirical case study that examines whether district court judges who currently hear the most patent cases are better at claim construction, as evidenced by reversal rates, than those who hear very few patent cases. The Comment then suggests ways to strengthen the pilot program so that it will be capable of bringing about true reform. Finally, it concludes by considering other options if the program is not ultimately adopted by Congress. [ABSTRACT FROM AUTHOR]

The United States District Court for the Middle District of Florida held that a sole inventor lacked standing to bring a claim for patent infringement where his ex-wife, who had gained an ownership interest through marriage, was not joined as a co-plaintiff. [ABSTRACT FROM PUBLISHER]

The article discusses the decision of the district court of Minnesota in two cases related to intellectual property. It states that in case Icon Health & Fitness, Inc. v. Octane Fitness, LLC the plaintiff sued Octane Fitness for patent infringement related to exercise machines and in which district court over ruled the claim of plaintiff. It also discusses the case LTJ Enterprises, Inc. v. Custom Marketing Co., LLC whether plaintiff sued Custom Marketing Co. for patent infringement.

The article discusses the United States District Court case Global Traffic Techs., LLC v. Emtrac Sys. which dealt with patent infringement of a traffic control system. Topics mentioned include a motion for permanent injunction on a patent, the court's judgment that a well-enforced patent system is in the public interest, and which party faced the balance of hardship.