Seattle Patent Litigation Update (May-June 2008)

So my trial is now over. My posts will pick up and be more frequent. I'm happy to report a victory for one local inventor over Sears Roebuck and their advertising firm, Young & Rubicam. Jury returned a verdict for $1.7 million on Wednesday afternoon. It's a copyright case, so I won't go into detail here. If you are interested, here is a link to today's story in the Seattle Times.

May and June saw some interesting new patent filings in Washington. Here is a list:

June 10, 2008
Nintendo of America Inc v. Nyko Technologies Inc	WA Western	Lasnik	Patent	Federal Question
Plaintiff: Nintendo of America Inc; Defendant: Nyko Technologies Inc
May 28, 2008
Microscan Systems Inc v. Cognex Corporation	WA Western	Martinez	Patent	Federal Question
Plaintiff: Microscan Systems Inc; Defendant: Cognex Corporation
May 22, 2008
Brower v. Lowe's Companies Inc et al	WA Western	Robart	Patent	Patent Infringement
Plaintiff: Jerry E Brower, Jerry E Brower Defendant: Lowe's Companies Inc, Lowe's HIW Inc, Homax Products Inc
May 20, 2008
Westfield Outdoor Inc v. GCI Outdoor Inc	WA Western	Jones	Patent	Declaratory Judgement
Plaintiff: Westfield Outdoor Inc, Westfield Outdoor Inc, Westfield Outdoor Inc Defendant: GCI Outdoor Inc

The most interesting of these cases to me is Nintendo's action over Nyko Technologies to enforce rights in the NUNCHUCK controller for the Wii. Now that is what I like to see: a major technology player from the PNW showing confidence in our local district court to sort out complicated IP matters. This case is also interesting because it seeks to enforce design patent rights in the shape of the controllers amid great uncertainty in the law concerning design patent rights. The Federal Circuit has yet to issue a decision in the en banc review of Egyptian Goddess v. Swisa. Here is a link to post about amicus briefs offered in connection with that case, one of which I co-authored earlier this year on behalf of the Federal Circuit Bar Assocaition.

Seattle Patent Litigation News

It's been a while since I've posted. I know both of you are disappointed (hi mom). Reason for the hiatus is that I've been preparing for trial. So expect my posts to be less frequent through about the end of July.

There's still a lot to report on the local patent litigation front. First, as I'm sure many of you already know, Nintendo was hit with a significant infringement verdict by a Texas jury last week, in the amount of about $21 Million. My previous post on this case can be found here. Here is a bit of coverage of the case from IP 360

Thursday, May 15, 2008 --- Nintendo Inc. was ordered to pay a small Texan
patent holder $21 million on Wednesday for infringing patents related to the
controllers for its popular GameCube and Wii video-gaming systems.
A federal jury found that Nintendo infringed Anascape Ltd.'s patents with its
WaveBird and Gamecube controllers for the GameCube and Wii Classic
controller for the Wii. The Wii remote and nunchuck controllers were not
included in the suit.
The jury's verdict followed a two-week trial in the U.S. District Court for the
Eastern District of Texas.
"We are extremely pleased with the jury's verdict. Anascape may be a tiny
company compared to Nintendo, but today's verdict confirms that the
company's technology is second to none,” said Doug Cawley of McKool
Smith PC, which represented Anascape.
A representative for Nintendo said the company was planning on appealing
the ruling and that the appeals court would “promptly reduce the dollar
amount of the verdict significantly.”

In other news, the Western District of Washington published its set of proposed patent rules. Check them our by following this link: http://www.wawd.uscourts.gov/proposedlocalrules.htm

I'd like someone to offer to guest blog about these rules since I won't have the time for a while (no Mom, you can't). Please let me know if you have time/interest in writing a little summary of the proposed new rules, and perhaps comparing them to other districts, like the ED Texas, or ND Cal.

Finally, Local software company Widevine Technologies Inc., has expanded its patent infringement case against competitor Verimatrix in the ED of Texas. The suit involves video encryption technology, and since my firm is handling the case on behalf of Widevine, I'll just post some snippets from the recent IP 360 article.

Tuesday, May 20, 2008 --- Widevine Technologies Inc. has stepped up its
legal battle against Verimatrix Inc., filing an amended complaint that adds
another patent to its infringement suit over video encryption technology.
The amended complaint, filed Tuesday in the U.S. District Court for the
Eastern District of Texas, takes aim at Verimatrix's video content authority
system, claiming the VCAS product infringes on Widevine's U.S. Patent
Number 7,376,831, which covers Widevine's Cypher technology for video
encryption.
Widevine first launched its suit against Verimatrix last August over
Verimatrix's alleged infringement of U.S. Patent Number 7,165,175. That
patent, issued in January 2007, covers methods and systems for selectively
encrypting different portions of data, such as video or audio, that are sent
over the Internet, according to the original complaint.
Widevine's amended complaint claims that Verimatrix was already aware of
the '175 patent as early as March 2007, when Widevine sent a letter
informing Verimatrix that the ’175 patent had issued.

That's all for now.

Judge Settle (Tacoma) Stays Patent Case Pending Reexamination

U.S. District Court Judge, Benjamin Settle (nominated by George W. Bush on January 9, 2007, to a seat vacated by Franklin D. Burgess; Confirmed by the Senate on June 28, 2007, and received commission on July 2, 2007) recently stayed a dispute involving U.S. Patent Nos. 5,993,303 and 6,250,998, patents for hand-held cutting tools.

The dispute is between Pactool International, Ltd and DeWalt Industrial Tool Co., as well as Kett Tool Company (Case No. 06-5367). Judge Settle granted Kett Tool Company's motion to stay in view of a request for reexamination that was filed on December 20, 2007. While the PTO has not yet granted Kett's request for reexamination, Judge Settle stayed the case anyway, calling for a stay until May 1, 2008, and permitting the parties to file a motion to lift the stay in the event the PTO denies Kett's request for reexamination.
PactoolOrderStay.pdf

Judge Pechman Denies Request for Relief from Scheduling Order

Based on my site data, a lot of you are looking for information on how certain judges in the Western District may handle scheduling in a patent case. I've posted here and here on patent scheduling orders used by Judges Zilly and Robart. Here is a post from a case currently pending before Judge Pechman, WizKids Inc. v. Wizards of the Coast (07-809). This case involves US pat. no. 7,201,374 for a "Method and Article of manufacturer for Collectible Game." The patent is owned by Wizards of the Coast, who was sued by Wizkids in a declaratory judgment action alleging non-infringement and invalidity of the '374 patent. Judge Pechman issued a scheduling order setting forth deadlines for (among others) claim construction briefing, preliminary contentions concerning claim construction, and a Markman hearing (attached below, PDF). Declaratory Judgment Plaintiff Wizkids asked for relief from this order, contending that the court did not need to engage in complicated claims construction to hear its motion for summary judgment on the issue of invalidity. Judge Pechman disagreed. From the order denying leave to file an early summary judgment motion:

"Plaintiff claims support or this departure from the case schedule from a recent Supreme Court case which held '[w]here, as here the content of the prior art, the scope of the patent claim, and the level of ordinary skill in the art are not in material dispute, and the obviousness of the claim is apparent in light of these factors, summary judgment is appropriate.' KSR Int’l v.Teleflex Inc., ___ U.S. ___, 127 S.Ct. 1727, 1745-46 (2007). Plaintiff wishes to file a motion seeking summary judgment on grounds of obviousness based on prior art. Plaintiff’s argument (and its reliance on KSR) is valid only if the scope of the patent claims and the level of ordinary skill of the art are not in dispute. Plaintiff argues that they are not, but the argument and the evidence are not persuasive. . . . It is apparent from the parties’ pleadings that claim construction will assist in the determination of obviousness. Both the correspondence which they exchanged prior to initiation of the lawsuit and the arguments regarding construction of claim terms in their briefs are evidence that the scope of the claims here is still in dispute. Furthermore, the discovery process has just begun and no depositions (including those of Plaintiff’s game experts who are testifying as to the 'ordinary level of skill' required in this matter) have been taken."
WizKidsOrderLeavetofileearlySJ.pdf
wizkidspechmanschedulingorder.pdf
WizCoastsClaimsContentions.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