In what may be the largest patent infringement verdict in U.S. history, a jury in the Eastern District of Texas found against Abbott and in favor of Centocor with $1.67 billion in damages. The jury found Abbott Laboratories infringed Centocor’s patent, Patent No. 7,070,775, to produce the arthritis drug Humira. The breakdown includes an award of $1,168,466,000 in lost profits and $504,128,000 in reasonable royalty damages.
The Federal Circuit recently issued an interesting opinion holding a patent holder’s appellate attorneys jointly and severally liable for one defendant’s fees and costs related to the appeal.
We consider this appeal, as it relates to PalmSource, frivolous. Although there is a host of reasons that collectively support our reaching this conclusion, we focus our discussion on two. First, E-Pass “fail[s] to explain how the trial court erred or to present cogent or clear arguments for reversal.” See id. at 1345; see also Refac Int’l, Ltd. v. Hitachi, Ltd., 921 F.2d 1247, 1256 (Fed. Cir. 1990) (sanctioning party that failed to point to any basis for reversal in the lower court’s decision). Second, E-Pass has made significant misrepresentations of the record and the law to the court. See Abbs, 237 F.3d at 1345; see also Romala Corp. v. United States, 927 F.2d 1219, 1224 (Fed. Cir. 1991) (sanctioning party for, among other things, distorting the lower court’s decision).
While the Federal Circuit’s decision is certainly a cautionary tale, what really caught our attention was the malpractice lawsuit E-Pass filed against its former litigation counsel at Moses & Singer and Squire Sanders. According to E-Pass’s malpractice counsel, litigation counsel for E-Pass collectively billed their client 7.6 million dollars in attorneys’ fees during the case. Whether or not there was malpractice or other malfeasance, 7.6 million is a truly eye-popping number. The Federal Circuit’s decision provides at least some clue as to what was going on:
But litigation misconduct is a central issue—the district court specifically concluded that E-Pass had engaged in repeated litigation misconduct, including, in particular, its shifting legal theories. See, e.g., Decision at 29 (“E-Pass’s allegations of inducing infringement against PalmSource have also changed over time.”); id. at 33 (“Throughout the litigation, defendants were forced to expend resources merely to attempt to have E-Pass clearly define its claims.”).
It is important for a litigant to have its infringement theories nailed down before filing a case, and to continually monitor its chances of success as the case progresses. That, and watch your bills.
Quite a bit if you’re wealthy, American, don’t like paying your taxes, and have used the Swiss Bank UBS to avoid them. A number of UBS’s American clients have filed a lawsuit in Switzerland to prevent the disclosure of their names in connection with a tax-evasion investigation by the IRS. Since the whole point of the lawsuit is to prevent the disclosure of their identities, the plaintiffs in the case have, unsurprisingly, not been idenitifed.
The Intellectual Property Owners Association recently weighed in with “suggestions” on the draft model patent jury instructions released for public comment by the National Jury Instruction Project in December 2008. Accused infringers are likely to approve of much of the IPO’s commentary.
Here’s a recent patent infringement verdict that caught our attention.
It’s been a rough couple months for the Minnesota investor class. First, the tentacles of the Madoff ponzi scheme reached a significant number of Minnesotans. Second, Charles Hays of “Millionaire Trader” fame was running a local ponzi scheme. Now the SEC has sued John Lawton, manager of the hedge fund Paramount Partners, in Minnesota Federal Court for various misdeeds, including falsifying returns. Despite some pretty serious allegations, Lawton struck a hopeful note for the investors in an interview:
Lawton denied the government’s allegations in an interview and said he was in the process of returning funds to his limited-partner investors when the government stepped in.“We’ve had successful years. Last fall was really good,” Lawton said.
Law.com weighs in about the recent dip in the filing of new patent lawsuits. To nobody’s surprise, the drop-off is attributed at least in part to the notorious expense of patent litigation. “[C]lients are calling all the law firms that represent them in defending patent infringement cases to be more careful in drawing up budgets.” Here at MBM, that’s music to our ears.
Benjamin Franklin famously quipped about the wisdom of taking on the newspapers: “Never start an argument with a man that buys his ink by the barrel.” Two centuries later, the saying for intellectual property law might go, “Never pursue patent litigation against companies that buy lawyers by the barrel.” At least that’s the intimidation mentality that certain companies are hoping for. Google is the latest.
The bankruptcy court handling the Madoff hedge fund case has made the list of victims from the ponzi scheme available. The list is available for download here. It’s a disturbing read given the number of charities and trusts that have lost money.
One of the more interesting victims is John Malkovich, although there doesn’t seem to be any confirmation on whether or not it’s the actor.
Myers, Boebel & MacLeod L.L.P. was acknowledged in the “2009 Minnesota Rising Star” listing as recognized by the publisher of Minnesota Law & Politics. Myers, Boebel & MacLeod L.L.P. will appear in the Rising Star directory for Minnesota Law & Politics and Mpls. St. Paul Magazine.
Both Aaron A. Myers and Misti Okerlund were selected as “Rising Stars” in the area of intellectual property litigation for 2009. Aaron Myers, a founding partner of Myers, Boebel & MacLeod L.L.P., also received recognition as a Rising Star in 2005, 2006, 2007, and 2008. Misti Okerlund, Of Counsel at Myers, Boebel & MacLeod L.L.P., also received recognition as a Rising Star in 2005. Rising Stars are selected based on peer recognition, professional achievement, and other selection criteria. Approximately 2.5 percent of Minnesota lawyers are recognized as Rising Stars.
“These awards reflect our firm’s commitment to both client service and the broader legal community, and I am grateful to my colleagues for these recognitions,” Myers said. Added Okerlund, “It’s always an honor to be recognized by the legal community, and we will continue to bring our best efforts to our clients’ most complex cases.”
Nicholas Boebel, a founding partner at Myers, Boebel & MacLeod L.L.P., who practices intellectual property litigation with Myers and Okerlund stated “Both Aaron and Misti are terrific litigators who handle complex cases with the highest skill and according to the best traditions of the Minnesota bar. Our firm is honored by this distinction.”
Myers, Boebel & MacLeod L.L.P. was founded in 2006 in the southwest “Lakes” region of Minneapolis. The firm focuses on litigation for intellectual property and commercial disputes.