Seattle Patent Litigation Update: May 2008

Things finally slowed down last month in terms of new patent case filings in the Western District. There was just one new case hitting the electronic docket in May, and it was actually filed in April, so it really doesn't count as a May filing. Since it didn't make April's list, I'll post it here.

The case is Vtran Media Technologies, LLC v. Astound Braodband LLC (C08-0650) (Pechman) This is the fourth patent case in the last 30 days assigned to Judge Pechman.


The patent in suit is US 4,890,320 "Television Broadcast System for Selective Transmission of Viewer-Chosen Programs at Viewer-Requested Times." It's got a crusty old filing date of June 9, 1988. With an issue date of December 26, 1989, the patent will expire June 9, 2008 (assuming no extensions). Are you thinking laches? Estoppel? Me too.

UPDATE: Thanks to reader Andrew P for correcting my error on calculating the termof this patent under the GATT rules. This patent expired June 9, 2008, not December 2006 as I had said previously. Also, there is a second patent,
US 4,995,078, with a filing date of 10-10-89 and issue date of 2-19-91. Under GATT transition rules, this patent will expire October 10, 2009.


The patent has been in litigation since about October 2007. Below is a list of related cases and there's an MDL No. assigned, MDL No. 1948


May 16, 2008
VTran Media Technologies, LLC v. Liberty Cablevision of Puerto Rico, Inc.
PR
Casellas
Patent
Federal Question
Plaintiff: VTran Media Technologies, LLC; Defendant: Liberty Cablevision of Puerto Rico, Inc.

April 9, 2008
Vtran Media Technologies,LLC v. Advocate Communications,Inc. et al
FL Southern
Cooke
Patent
Patent Infringement
Plaintiff: Vtran Media Technologies,LLC; Defendant: Advocate Communications,Inc., Home Town Cable TV,LLC

March 21, 2008
VTran Media Technologies, LLC v. Antietam Cable Television, Inc.
MD
Garbis
Patent
Patent Infringement
Plaintiff: VTran Media Technologies, LLC; Defendant: Antietam Cable Television, Inc.

March 3, 2008
VTran Media Technologies, LLC v. Mid-Hudson Cablevision Inc.
NY Northern
Kahn
Patent
Federal Question
Plaintiff: VTran Media Technologies, LLC; Defendant: Mid-Hudson Cablevision Inc.

February 21, 2008
VTran Media Technologies, LLC v. Midcontinent Communications
ND
Erickson
Patent
Federal Question
Plaintiff: VTran Media Technologies, LLC; Defendant: Midcontinent Communications

February 19, 2008
VTran Media Technologies, LLC v. Bresnan Communications, LLC et al
NY Southern
Daniels
Patent
Patent Infringement
Plaintiff: VTran Media Technologies, LLC; Defendant: Bresnan Communications, LLC, Insight Communications Company, Inc.

February 14, 2008
VTran Media Technologies, LLC v. Armstrong Utilities, Inc. et al
OH Northern
O'Malley
Patent
Patent Infringement
Plaintiff: VTran Media Technologies, LLC; Defendant: Armstrong Utilities, Inc., Buckeye Cablevision, Inc., Massillon Cable TV, Inc., WideOpenWest Holdings, LLC

February 8, 2008
VTran Media Technologies, LLC v. Cox Communications, Inc.
GA Northern
Story
Patent
Patent Infringement
Plaintiff: VTran Media Technologies, LLC Defendant: Cox Communications, Inc.

January 31, 2008
VTran Media Technologies, LLC v. Atlantic Broadband Finance, LLC et al
PA Middle
Caldwell
Patent
Patent Infringement
Plaintiff: VTran Media Technologies, LLC; Defendant: Atlantic Broadband Finance, LLC, Cablevision Systems Corporation, MetroCast Cablevision of New Hampshire, LLC

VTRAN MEDIA TECHNOLOGIES, LLC v. ARMSTRONG UTILITIES, INC. et al
PA Eastern
KAUFFMAN
Patent
Patent Infringement
Plaintiff: VTRAN MEDIA TECHNOLOGIES, LLC; Defendant: ARMSTRONG UTILITIES, INC., BLUE RIDGE COMMUNICATIONS, INC., RCN CORPORATION, SERVICE ELECTRIC TELEVISION, INC.

January 30, 2008
VTran Media Technologies, LLC v. Bright House Networks, LLC et al
AL Northern
Ott
Patent
Patent Infringement
Plaintiff: VTran Media Technologies, LLC; Defendant: Bright House Networks, LLC, Knology, Inc, Mediacom Communications Corporation

January 25, 2008
VTran Media Technologies, LLC v. Cebridge Acquisition L. P.
TX Eastern
Ward
Patent
Patent Infringement
Plaintiff: VTran Media Technologies, LLC; Defendant: Cebridge Acquisition L. P.

October 17, 2007
VTran Media Technologies, LLC v. Comcast Corporation et al
TX Eastern
Ward
Patent
Patent Infringement
Plaintiff: VTran Media Technologies, LLC; Defendant: Comcast Corporation, Charter Communications, Inc., Verizon Communications, Inc., Time Warner Cable, Inc.

That's all for now. Back to trial prep for me.

Vtrancomplaint.pdf

Seattle Patent Litigation Report: April 2008

April was a very busy month for patent litigation in the Western District of Washington. Wacom settled its patent dispute with competitor, Hanvon, Microsoft and Veritas settled their decade old database dispute, and there were seven new cases filed.

TGN, Inc v. CRS, LLC, (2:2008cv00680) (Pechman)

VTran Media Technologies LLC v. Astound Broadband LLC et al , (2:2008cv00650) (Pechman)

Unigen Pharmaceuticals Inc v. Perrigo Company et al, (3:2008cv05258) (Leighton)

Gardner v. Toyota Motor Corporation et al, (2:2008cv00632) (Jones)

Koninklijke Philips Electronics NV, (2:2008cv00543) (Pechman)

American Piledriving Equipment Inc v. Hydraulic Power Systems Inc et al, (2:2008cv00537) (Martinez)

Progressive International Corporation v. Jo-Ann Stores Inc (2:2008cv00514) (Lasnik)

Washington State Patent Law Association Files Amicus Brief in Bilski

On April 4, 2008 the Washington State Patent Law Association (WSPLA) filed an amicus brief in support of Petitioner Bernard L Bilksi and Rand A Warsaw in the case currently under en banc consideration by the CAFC, In re Bilksi. My earlier posts on this case can be found here and here.

WSPLA's brief was signed by Michael Swope over at Woodcock Washburn. Also on the brief were Grzegorz S Plichta (Woodcock Washburn), Dale Bar, President of WSPLA and lawyer at Lee and Hayes, and Peter J Knudsen, IP counsel for Nastech Pharmaceutical Co., Inc.

Dennis Crouch over at Patently O, has a good summary of all Amicus Briefs filed in the case.

Report for Washington State Patent Cases: March 2008

Patent case filings in Washington State remained strong through March. There were four cases filed total; three in the Western District and one in the Eastern District. This is one better than March 2007, which only had three patent cases total. So far, Washington is substantially ahead of where it was last year at this time in terms of the number of patent cases filed. Through March last year, there were only nine (9) patent cases filed. This year's total through March is eighteen (18), that's an increase of 100%.

Here is a list of cases for March.

Zacklift International Inc v. Kooima (WA Eastern) Judge Van Sickle

Progressive International Corporation v. CKC International LLC (WA Western) Judge Theiler

Cequint Inc v. TECMobile Software LLC (WA Western) Judge Jones

CRS LLC v. Valve Corp. (WA Western) Judge Donohue

Plaintiff Ordered to Produce More Specific Infringement Contentions

The Plaintiff in the case Gebr. Tigges Gmbh & Co. KG v. EYS Metal Sanayi Ltd. (C07-1673) (Lasnik, J.) was ordered to produce more specific infringement contentions in response to the Court's scheduling order calling for "preliminary infringement contentions."

The order states as follows:

The Local Rules for the Western District of Washington do not currently [NOTE: I think the key word from our Chief Judge here is "currently"] define requirements for preliminary infringement contentions. As a guideline, however, many courts, including this Court, look to the Patent Local Rules for the Northern District of California and case law interpreting the rules. See, e.g., McKesson Info. Solutions LLC v. Epic Sys. Corp., 242 F.R.D. 689, 695 n.1 (N.D. Ga. 2007) (stating that decisions of the U.S. District Court for the Northern District of California provide persuasive authority). These rules require PICs to identify “specifically where each element of each asserted claim is found within each Accused Instrumentality” and to declare whether the element “is claimed to be literally present or present under the doctrine of equivalents.” U.S. Dist. Ct. N.D. Cal. Patent LR 3-1(c-d). The courts in the Northern District of California have interpreted this rule as requiring that PICs: reflect “all facts known to [the plaintiff] including those discovered in their Fed. R. Civ. P. 11 pre-filing inquiry,” and contain sufficient detail regarding the plaintiff’s theory of infringement “‘to provide defendants with notice of infringement’ beyond the claim language itself.”

*** (citations omitted)

This Court follows this reasoning because specificity in disclosure responds to the objectives underlying preliminary infringement and invalidity contentions: to streamline discovery and to require both parties “to crystallize their theories of the case early in litigation.” O2 Micro Int’l, Ltd. v. Monolithic Power Sys. Inc., 467 F.3d 1355, 1364-1366 (Fed. Cir. 2006) (upholding under the Federal Rules of Civil Procedure the validity of the Northern District of California’s local patent rules’ requirement that “both the plaintiff and the defendant in patent cases . . . provide early notice of their infringement and invalidity contentions”).

So the take away point from this post is that the WDWA tends to follow practices from the ND of Cal. in terms of local patent practice and in particular, the disclosures and contentions required by the local rules from the ND of Cal., as incorporated into specific cases by judges in this district.
EYSPICorder.pdf
LasnikScheduleOrderPatentCase.pdf

Scheduling Orders in Patent Cases (WD of Wash.)

Yesterday, a reader asked me whether Judge Zilly has a standing order for patent cases similar to that of Judge Robart. The answer is no, but his scheduling orders in patent cases can be more detailed than other cases and establish deadlines for Markman hearings and briefing on claims construction. Below is a link to a recent scheduling order from a patent case currently pending in Judge Zilly's court.
ZillyMinuteOrderPatentCase.pdf

2007 Patent Litigation Statistics for Washington State

Because Blogger dates my posts when they are started (as opposed to when they are finished), the purpose of this post is to provide a link to my completed report on patent litigation statistics in Washington State. I finished the report today. Enjoy.

Report on Washington State Patent Cases 2007

There were a total of 49 patent cases filed in the State of Washington in 2007. That is an increase of over 48% from 2006 (33 total patent cases filed in 2006) and an increase of over 16% from 2005 and 2004 (both years had 42 patent cases filed). Cases filed in the Eastern District of Washington in Spokane continued to lag far behind those filed in the Western District. In 2007, just 2 of the 49 cases were filed in Spokane; that's just 4%. Tacoma saw five patent cases in 2007, about 10% of the total patent case load.

Here is the Judge break down for 2007 patent cases, listing current judges as of December 2007: Judge Zilly (9); Judge Jones (6); Judge Lasnik(4); Judge Pechman (5); Judge Robart (6); Judge Donohue (2); Judge Bryan (1); Judge Leighton (2); Judge Shea (2); Judge Theiler (2); Judge Settle (2); Judge Martinez (4); Judge Burgess (2); Judge Coughenour (1); Judge Whaley (1). Based on this data, Judge Zilly has the most 2007 patent cases on his docket (not bad for a Judge on senior status). The District's newest judge, Judge Jones, is tied for second with Judge Robart with a total of 6 patent cases from 2007.

According to Justia, there was at least one patent case tried all the way to verdict in Washington in 2007. That case was Baden Sports v. Molten USA, Inc. (06-210MJP). Judgment was entered against Molten for $8M on a jury verdict of willful infringement. Judge Pechman entered a limited injunction against Molten, and there are pending motions for contempt. The patent-in-suit was U.S. 5,636,835 for a padded basketball. This case was filed February 13, 2006, and tried to verdict in under 18 months.

Most cases filed in Washington from January 2004 through the end of 2007 state were settled or dismissed voluntarily without prejudice. So far, there is no uniform scheduling order entered for patent cases in any Federal Court in Washington. Some Judges, including Judge Robart, have a standing order for patent cases setting a schedule for disclosures and briefing leading up to a Markman hearing. Judge Robart's order is attached below (PDF). My quick scan of the scheduling orders entered by all judges in patent cases show that these cases are often scheduled with a trial date set 12-18 months out (from the scheduling order). Generally, the parties are given a lot of freedom to propose a case schedule.

Nationally, Washington saw just under 2% of all patent cases filed in 2007. According to Justia, there were about 2,800 patent cases filed nationally in 2007. The busiest jurisidictions are located in California (532 patent cases in 2007) and Texas (456 patent cases in 2007). Other jursidictions with busy patent dockets in 2007 included New Jersey (197); Illinois (157), and New York (164). Regionally, more patent cases were filed in Washington in 2007 than in Oregon (23) or Idaho (6).

While Wisconsin (specifically, the Western District in Madison) received a reputation in 2007 as a patent "rocket docket" jurisdiction, the entire state saw just 39 patent cases filed in 2007.

Here is a list of all patent cases filed in Washington in 2007 naming the parties, the assigned judge, a brief statement of the current status of each case (as of mid December 2007), and the patent-in-suit.

Laughing Rabbit Inc. v. John Wilson et. al.
December 28, 2007
Martinez
No Answer

National Products Inc v. Gamber-Johnson LLC
December 11, 2007
Jones
No Answer
7298611 Portable Device Docking Station

Aerotel Ltd et al v. T-Mobile USA Inc.
December 6, 2007
Robart
No Answer
4706275; Telephone System

F5 Networks Inc v. A 10 Networks Inc
December 4, 2007
Lasnik
No Answer
6473802 Method and System, for Storing Load Balancing Information with an HTTP Cookie

Fluke Corporation v. Ratner
December 3, 2007
Donohue
No Answer
D554,152; Ergonomic Pressure Calibration Pump


Plant 21 LLC v. Cascade Greenhouse et al
November 19, 2007
Bryan, reassigned to Settle 11/27/2007
No Answer
PP14852; PP13545; Plant Patents

Berg Companies Inc v. Basic Concepts Inc et al
November 19, 2007
Shea
No Answer
5316175 Foldable Spill Collector Container; 7168588 Multi Section Containment; 6880720 Portable Containment


F5 Networks Inc v. Coyote Point Systems Inc
November 13, 2007
Pechman
No Answer
6473802 Method and Syste, for Storing Load Balancing Information with an HTTP Cookie

BooginHead LLC v. Twin Beginnings LLC
November 13, 2007
Theiler
JSR due 1/14/2008
6978918 Teather for Objects Such as Infant Drinking Device

Teragren LLC v. Smith & Fong Company
November 5, 2007
Leighton
JSR due 2/6/2008
5543197 Parallel Randomly Stranded Laminated Bamboo Boards and Beams

Gebr Tigges GMBH & Co KG et al v. EYS Metal Sanayi Ve Ticaret LTD. STI et al
October 12, 2007
Lasnik
Answer filed, JSR filed 12/11/2007
5009795 Process for the Dewatering of Solids Suspended in Water and Screw Press Separator Therefor

Flexiworld Technologies Inc v. Skype Inc
October 12, 2007
Leighton, reassigned to Settle on 10/16/2007
JSR due 1/14/2008
7099304 Apparatus, Methods and Systems for Anonymous Communication.

Nelson v. K2 Inc et al
October 11, 2007
Lasnik
No Answer Filed
5603522; Wide Short Ski

Mukai v. AG Design & Associates LLC
October 11, 2007
Donohue, reassigned to Pechman
2 day bench trial set for 11/10/2008
7118245 Lantern


Canon USA Inc et al v. Screentone Systems Corporation et al
October 1, 2007
Martinez, reassigned to Jones
Motion to stay, transfer or dismiss pending (noted 12/21/2007) Motion before MDL Panel filed 12/27
5166809 Computer Printer Technology

ShareBuilder Corporation et al v. FOLIOfn Investments Inc
September 20, 2007 (DJ)
Martinez
Rule 41 Dismissal on 11/19/2007
7110971; 6996539; 6601044; 7117176; Online Brokerage

Simulab Corporation v. Synbone AG
September 12, 2007
Zilly
Answer filed 12/07/2007
6780016; Human Surgical Trainer and Methods for Training

Tien Hsin Industries Co Ltd et al v. Cane Creek Cycling Components et al
August 15, 2007
Zilly
Motion to Dismiss for Lack of Personal Jurisdiction Denied on 11/09/2007; Motion to Transfer pending (noted 12/7/2007)
5095770; Steering Assembly for Wheeled Vehicle

Scolr Pharma Inc v. Nutra Manufacturing Inc et al
July 30, 2007
Zilly
Rule 41 Dismissal; 9/28/2007
6090411; Monolithic Tablet for Controlling Drug Release; 6337091; Matrix for Contolled Delivery of highly Soluble Pharmaceutical Agents


Campbell Pet Company v. Miale et ala
July 25, 2007
Leighton
Order Dismissing case for lack of Personal Jurisdiction entered 11/02/2007; Notice of Appeal filed; 11/15/2007
6199508; 6230662; Pet Stretcher


Unigen Pharmaceuticals Inc v. Target Corporation
July 16, 2007
Bryan, transferred to Lasnik, reassigned to Jones
JSR Entered 10/17/2007
7,108,868; Isolation of Dual Cox-2 and 5-lipoxygenase; 7,192,611, Identification of Free-B-Ring Flavonoids as Potent Cox-2 Inhibitors


Q13 Inc et al v. Eveready Industrial Services Corp
July 13, 2007 (DJ)
Lasnik
Motion for staged discovery pending
6,318,194 Inspection of Tubes Conduits Pipelines


Prokop Labs LLC v. Staples Inc et al
July 13, 2007
Pechman
JSR due 1/10/2008
5,566,913 Wrist Apparatus


Proven Winners North America LLC v. Cascade Greenhouse et al
July 5, 2007 (transferred from MD Florida)
Coughenour, reassigned to Burgess 7/26/2007
Nothing since transfer
PP11,835; PP13,545; PP13,510, PP15,607; PP14,037: PP13,887;
Plant Variety

Joescan Inc v. LMI Technologies Inc
July 5, 2007
Bryan
Preliminary Injunction Denied on 9/5/2007; Jurisdiction challenged, and motion denied on 9/05/2007 Trial set 11/6/2008
5734172; 5854491; 5,670,787; Method and Apparatus for Electro Optically Determining the Dimensions Location and Altitute of Objects

Frontier Paper and Packaging Inc v. Washington Packaging Supply Inc
July 2, 2007 (transferred from SD of Indiana)
Zilly
JSR filed 12/14/2007; Motion for Summary Judgment Pending, noted 9/7/2007
5,820,268; 6,007,467; 7,021,524;6,080,096 Methods and Apparatus for Packaging Parishable Goods

Alliance Packaging LLC v. 1-800-Flowers.com
June 28, 2007
Theiler
Proof of service filed 11/05/2007
7,219,797 Box with Insert that Extends From A Side and That Divides the Box Into Compartments and Methods for Forming and Using

Fascinations Toys & Gifts Inc v. Plant Cell Technology Inc
June 25, 2007 (DJ)
Coughenour, reassigned to Pechman on 8/01/2007
Stip. and Order dismissing with prejudice 12/11/2007
5,803,014


Precor Incorporated et al v. Smooth Fitness et al
June 21, 2007
Donohue
Answer filed 11/28/2007
5,383,829 Stationary Exercise Device

InstantService.com Inc v. Rood et al
June 12, 2007
Robart
Answer Filed 12/12/2007
6,915,336, Real Time Internet Communication System

Unigen Pharmaceuticals Inc v. Colgate-Palmolive Company
June 8, 2007(removed fromKCSC)
Pechman, reassigned to Jones
Remanded to State Court, 9/21/2007
Disputed Ownership/inventorship under 256, Patent not yet issued

High Maintenance Bitch LLC v. Uptown Dog Club Inc
June 8, 2007
Coughenour, reassigned to lasnick, reassigned to Zilly
Dismissed for lack of Personal Jurisdiction, 10/17/2007
D475,163
D475,162
Dog Collar

High Maintenance Bitch LLC v. B A Barker Inc
June 8, 2007
Zilly
Stip and Order to Dismiss With Prejudice
D475,163 D468,491
Dog Collar

High Maintenance Bitch LLC v. Innovative Spotlight Inc
June 8, 2007
Coughenour
Rule 41 dismissal.
D475,162 Dog Collar

CRS LLC v. IGN Entertainment Inc
June 7, 2007
Zilly
Complaint amended 7/9/2007; Motion Partial SJ Invalidity, pending. Noted 12/21/2007
6,073,124 Method and System for Securely Incorporating Electronic Information Into Online Purchasing Application

Precor Incorporated et al v. Diamondback Fitness Inc
June 5, 2007
Theiler, reassigned to Martinez, Reassigned to Jones
Answer due
5,383,829 Stationary Exercise Device


WizKids Inc v. Wizards of the Coast Inc
May 25, 2007 (DJ)
Pechman
Complaint Amended 7/03/2007; Motion for Leave to File Motion For SJ, pending, noted 10/29/2007 (attached M for SJ)
7,201,374 Method and Article of Manufacture for Collectible Game


Sunstream Corporation v. Reimann & Georger Corporation
May 23, 2007
Benton, reassigned to Robart 7/12/2007
Rule 41(a) Dismissal after Order to Show Cause
6,976,442 Variable Range Apparatus for Watercraft Lift

Home Debut Inc v. Justsnooping.com Inc
May 10, 2007 (transferred from ND Cal.)
Whaley
Motion for Protective Order Pending: noted 12/14/2007
Trial 9/29/2008
6,839,880 Electronic Property Viewing System

F & G Research Inc v. Microsoft Corporation
April 12, 2007
Theiler, reassoigned to Robart 4/18/2007, reassigned to Martinez
Case Consolidated with 07-524-RSM
5,313,229 Mouse and Method For Concurrent Cursor and Scrolling Position

A G Design & Associates LLC v. Trainman Lantern Company Inc et al
March 30, 2007
Burgess, reassigned to Settle, 7/31/2007, reassigned to Burgess 8/31/2007
Motion for Preliminary Injunction Granted: 7/3/2007; Notice of Appeal filed 7/24/2007; Case reopened 9/04/2007 Motion for Contempt Pending, noted 10/25/2007
7,118,245
Trainman’s Lantern

Unigen Pharmaceuticals Inc v. Walgreen Co
March 29, 2007
Lasnik, reassigned to Jones 11/29/2007
Motion PartialsSJ (invalidity) pending, Noted: 12/21/2007
Motion for Sanctions (Rule 11) Pending, Noted: 12/21/2007
7,108,868 Isolation of a Dual Cox-2 and 5-Lipoxygenase Inhibitor from Acacia

MSC International Inc et al v. Norpro Inc
March 23, 2007
Robart
Case dismissed w/o prejudice, Rule 41(a)
D421,908 Spout

DX/DY Voice Processing, Inc. v. Teligence Corporation et al
February 22, 2007
Shea
Motion to dismiss denied; Motion for leave to file amended complaint granted 8/28/2007; Trial: 12/1/2008
7,116,768 Collect Callback

Unigen Pharmaceuticals Inc v. Leiner Health Products Inc et al
February 7, 2007
Robart
Stip. and Order Dismissing Claims with Prejudice: 7/10/2007
7,108,868 Isolation of a Dual Cox-2 and 5-Lipoxygenase Inhibitor from Acacia

National Products Inc v. Vision Tech America Inc
February 5, 2007
Robart
Consent Judgment entered: 6/18/2007
6,666,420 Suction Cup Having Compact Axial Installation and Release Mechanism

Alliance Packaging LLC v. Smurfit-Stone Container Corporation et al
January 24, 2007
Pechman, reassigned to Zilly, 11/28/2007
Markman hearing: 2/7/2008; Trial: 7/28/2008; Motion to Exclude Expert Witness (noted 1/11/2008)
7,156,287 Container with Integrated Pour Spout


National Products Inc v. JVC Americas Corp et al
January 9, 2007
Martinez
Stip. and Order Dismissing Case with Prejudice August 21, 2007.
6,666,420 Suction Cup Having Compact Axial Installation and Release Mechanism


MIXXER Inc v. Mvisible Technologies Inc
January 5, 2007
Zilly
Stip. and Order Dismissing with prejudice, May 1, 2007.
7,113,981 Cellular Telephone Download Locker


RobartStanding%20OrderinPatentCase.pdf

Will Seattle Become a Favored Forum for Patent Litigation?

Ignoring patent reform politics for a moment, Seattle patent litigators should all support at least one aspect of the hotly contested Patent Reform Act of 2007--the venue provisions. Why, you ask? Because Seattle litigators representing local technology companies (or, Portland for some well known Microsoft litigators) will be able to defend cases closer to home, and the increase in patent litigation here will certainly benefit all Seattle patent litigators working on both sides of the "v."

Under the current rules, companies like Microsoft, Amazon, and Nintendo are regularly sued in placed like Beaumont, Texarkana, Marshall, and Lufkin, Texas. There is often one suit with multiple defendants. Just to put things into perspective, this post from Patent Troll Tracker explains that the number of defendants sued in the Eastern District of Texas in November 2007 was 244. That surpasses by far the number sued in Los Angeles, San Francisco/Silicon Valley, New York City, Chicago, Delaware, and New Jersey combined. In November 2007 the combined total for all those large cities was just 162.

The number for Seattle ... Are you ready ...? Are you sitting down ...? It's seven. Yes, just seven defendants sued for patent infringement in Seattle in November 2007. In fact, Seattle is not even on pace to break 50 patent cases total (not so sure on the total defendant count, but it is not likely to be more than 100. FYI, I'll be reporting on District patent litigation statistics in the first part of January 2008, comparing them to 2006, and Nationally for 2007).

This doesn't mean that companies and lawyers here aren't engaging in a lot of patent litigation--they are. Last month Amazon, Microsoft, Real Networks, and Nintendo were all targeted by patent infringement lawsuits, but it is just not happening here. Congress hopes to change all that.

If the proposed patent venue rules pass, the Western District of Washington will become a favored forum for patent infringement plaintiffs because many of their targets live here.

On July 17, 2007, House Report 1908 set forth some pretty radical changes to the current liberal venue provisions, aimed at keeping defendants from being sued in places like Marshall, Texas.

Under the current proposed bill, venue for a patent action is appropriate in only the following judicial districts: (1) the district where the defendant has its principal place of business or where it is incorporated; (2) for foreign corporations with a U.S. subsidiary, the district where the defendant’s primary U.S. subsidiary has its principal place of business or where it is incorporated; (3) The district where the defendant has committed a substantial portion of the acts of infringement and has a regular and established physical facility that the defendant controls and that constitutes a substantial portion of the defendant’s operations; (4) the district where the primary plaintiff resides, if the primary plaintiff in the action is an institution of higher education (as defined by 20 U.S.C. § 1001(a)); (5) the district where the plaintiff resides, if one of the following is true: (i) the plaintiff or a subsidiary of the plaintiff has an established physical facility in the district dedicated to research, development, or manufacturing that is operated by full-time employees of the plaintiff or such subsidiary; (ii) or the sole plaintiff in the action is an individual inventor who is a natural person and who qualifies, at the time the action is filed, as a micro entity under 35 U.S.C. § 124.

Even if venue in a particular district or division is appropriate in a patent case, a court may transfer the case to another district or division if the following is true: (i) it is a district or division where the defendant has substantial evidence or witnesses; and (ii) it is a district or division where venue would be appropriate under 28 U.S.C. § 1391, if transfer would be appropriate under 28 U.S.C. § 1404.

Finally, a party to a patent suit may not by “assignment, incorporation, or otherwise” manufacture venue in a “specific district court.”

On July 19, 2007, the Senate Judiciary Committee reported out S1145, which also limits a patentee’s choice of venue, although with a number of variations to HR1908. The Senate Bill (1) further limits venue for a case in the district where the primary plaintiff resides; (2) provides for transfer to districts in cases of hardship for a defendant with respect to substantial evidence of the plaintiff; and (3) interjects consideration of hardship to a plaintiff in determining whether transfer of a patent case is valid.

On Line Music Store Technology Targeted by Patent Licensing Company

Amazon joined Microsoft and RealNetworks in a fight for the right to maintain digital play lists. Two separate patent suits accuse about two-dozen technology giants, including Yahoo! and Motorola, of patent infringement. The plaintiff is technology licensing company Premier International Associates, LLC. Premier sued Apple Computer on these same patents last September, but that case has settled. The patents are U.S. Pat No. 6,243,725 and 6,763,345. I've attached them, along with the Amended complaint naming Amazon below.

premier%20amended%20complaint.pdf
US6243725.pdf
US6763345.pdf

Z4 files New Patent Infringement Suit Against Microsoft

After winning a huge victory againts Microsoft before the Federal Circuit Court of Appeals (I had reported the verdict was $160M here, this includes the $18M verdict against co-defendant Autodesk, Inc.), Plaintiff Z4 Technologies filed a new infringement lawsuit against Microsoft's Office 2007 and Vista products. The case is filed in The Eastern District of Texas on the same patents. According to Z4's Complaint, “In its Vista and Office 2007 products, Microsoft has made an insignificant change in Product Activation technology found to infringe in [the prior case against Microsoft].” After victory before the Federal Circuit it will be interesting to see where this case goes. According to an article in IP 360, damages have not been estimated and Microsoft denies that its Vista and Office 2007 Products violate the patents. The patents at issue are U.S. Patent Numbers 6,044,471 and 6,785,825. The ‘825 patent, issued in August 2004, is titled “Method for securing software to decrease software piracy” and deals with using an authorization code to enable software. The ‘471 patent, issued in March 2000, has a similar title, “Method and apparatus for securing software to reduce unauthorized use,” and relates to using a password or a series of passwords to operate software. Click here for a link to download the patents.

Patent CLE in Seattle, 1.5 Credits Approved

Just a reminder that my law firm, Darby & Darby PC, will be hosting a CLE on recent developments in US patent law, entitled "Staying Ahead of the Curve." It will begin promptly at 5:30 pm at our Seattle office, 1191 2nd Ave, 20th Floor. Approval for 1.5 CLE credits has been obtained for Washington lawyers. Please call or Email for more details.