Cases: Intellectual Property

Intellectual Property: Plaintiff’s Copyright Infringement Suit Was Found Without Merit At Both District/Appellate Levels, Such That Denial Of Attorney’s Fees Under 17 U.S.C. § 505 Was An Abuse Of Discretion

Cases: Intellectual Property

Defendants Won Across The Board, Plaintiff Made Objectively Unreasonable Arguments, And Plaintiff Appeared To Bully A Public Teacher, Booster Club, And Parent Volunteer Defendants.             In Tresona Multimedia, LLC v. Burbank High School Vocational Music Assn., No. 17-56006 et al. (9th Cir. Mar. 24, 2020) (published), the Ninth Circuit affirmed a summary judgment in favor […]

Choice of Law, Estoppel, Intellectual Property: Attorney’s Fees Properly Denied In Entirety To Plaintiff Winning Only 7.89% Of Total Damages, After Apportionment, In Copyright Infringement Suit

Cases: Choice of Law, Cases: Estoppel, Cases: Intellectual Property

Fee Recovery Barred By Judicial Estoppel—Plaintiff Classified Claims In Tort, Not Contract, Such That No Fee Recovery Allowable Under Either California Or Texas Laws.             This next case does demonstrate the complexity that our state appellate courts have to wade through, even in unpublished opinions, to adjudicate appeals from fee awards where conflicting state laws

Intellectual Property: SCOTUS Decides That USPTO Cannot Recover Salaries of Legal Personnel In A Section 145 Patent Application New Civil Action

Cases: Intellectual Property

Expenses Are Not Attorney’s Fees Unless Made Clear Under Statutory Language, Which Was Not The Case.             In Peter v. NantKwest, Inc., No. 18-801 (U.S. Dec. 11, 2019), the United States Supreme Court decided that the U.S. Patent and Trademark Office (USPTO) cannot recover attorney’s fees—salaries of its legal personnel—under 35 U.S.C. § 145, which

Intellectual Property: E.D. Michigan Federal Magistrate Judge Explores The Exceptional Circumstances Under Which A Prevailing Party Can Be Awarded Attorney’s Fees By A District Court Based On PTAB IPR Successful Work

Cases: Intellectual Property

Exceptionality Standard Presents A High Obstacle For PTAB Fee Recovery.             In American Vehicular Sciences LLC v. Autoliv Inc., 2019 U.S. Dist. LEXIS 164343 (E.D. Mich. Aug. 30, 2019), report and recommendation adopted in 2019 U.S. Dist. LEXIS 162914 (E.D. Mich. Sept. 24, 2019), U.S. Magistrate Judge Anthony P. Patti explored what circumstances might warrant

Intellectual Property: Second Circuit Joins Third, Fourth, Fifth, Sixth, Ninth, and Federal Circuits In Applying Patent Act’s “Exceptional Case” Factors To Determine If Fee Recovery Warranted In Lanham Act Case

Cases: Intellectual Property

Second Circuit Did So In 2018, Recently Remanding A District Judge’s Award of Fees Under Lanham Act For A New Scrutiny Using The Octane Fitness Factors.             In Sleepy’s LLC v. Select Comfort Wholesale Corp., 909 F.3d 519, 530-531 (2d Cir. 2018), the Second Circuit joined the Third Fourth, Fifth, Sixth, Ninth, and Federal Circuits

Intellectual Property: U.S. Court Of Federal Claims Senior Judge Lettow Awards Significant Attorney’s Fees, Expert Fees, And Costs In Favor Of Successful Patent Infringement Plaintiff And Against The USA

Cases: Intellectual Property

Senior Judge Found That Litigation Funding Did Not Divest Plaintiff From Fee Recovery And That AIPLA Survey Of Hourly Rates Was Most Relevant Starting Point For Gauging Rates.            Because litigation funding is becoming an increasingly used tool to allow plaintiffs to prosecute complex civil cases, we post on FastShip LLC v. U.S., No. 12-484C

Intellectual Property: Ninth Circuit Affirms $121,423.01 Fee Award Under Copyright Act After Defendants Prevailed On An Invalid Copyright Defense

Cases: Intellectual Property

Appeals Court Sustained District Judge’s Application Of Fogerty Factors, Finding That A Technical Defense “Win” Does Not Impede A Fee Award In This Area.             Defendants prevailed in Gold Value International Textile, Inc. v. Sanctuary Clothing, LLC, No. 17-55818 (9th Cir. June 4, 2019) (published) based on a “technical” defense that plaintiff’s copyright was invalid

Intellectual Property: Ninth Circuit Affirms District Judge’s Failure To Award Attorney’s Fees To Prevailing Party In Vodka Trade Dress Infringement Case

Cases: Intellectual Property

Case Was Not Exceptional As To Allow For $4 Million-Plus Fee Recovery Under Lanham Act.             In Globefill Incorporated v. Elements Spirits, Inc., No. 17-56574 (9th Cir. March 8, 2019) (unpublished memorandum opinion), the Ninth Circuit was involved with the appeal by a prevailing plaintiff in a vodka bottle trade dress infringement suit. Plaintiff, a

COSTS, INTELLECTUAL PROPERTY: SCOTUS Decides That Litigation Expenses Are Not Recoverable By Prevailing Copyright Infringement Plaintiff Unless Covered By General Federal Costs Statutes

Cases: Costs, Cases: Intellectual Property

$12.8 Million Litigation Expense Award Remanded For A Re-Do.        In Rimini Street, Inc. v. Oracle USA, Inc., No. 17-1625 (U.S. March 4, 2019), the U.S. Supreme Court considered whether a $12.8 million litigation expense award—inclusive of expert witness, e-discovery, and jury consulting expenses—was properly found by a district court to be a justifiable award

Intellectual Property: Fifth Circuit Court Of Appeals Decides That Defense Not Entitled To “Prevailing Party” Status Under Federal Defend Trade Secrets Act Where Plaintiff Dismissed Federal Suit Without Prejudice And Refiled In State Court

Cases: Intellectual Property

18 U.S.C. § 1836(b)(3)(D) Fee-Shifting Statute Was At Issue.             Dunster Live LLC v. Lonestar Logos Management Co., LLC, 908 F.3d 948 (5th Cir. 2018) was a situation where a plaintiff filed a trade secret misappropriation suit in federal court under the Defend Trade Secrets Act (DTSA). After it lost an injunction, plaintiff moved to

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