I will be one of the speakers at a webinar on the Likelihood of Confusion Standard in trademark law on September 27th, 2012. Check out this link for more information if you are interested in attending or if you just need some CLE credit.
The latest PricewaterhouseCoopers‘ Patent Litigation Study found that between 2006 and 2011, the median damages award for nonpracticing entities (the so-called “trolls”) was $6.9 million, compared to $3.7 million for practicing entities. The median damages award for patent cases overall was $4 million and the number of these cases is higher than ever.
While the non-practicing entities don’t win as often as the practicing entity, when they do win, they win big. Although it might seem counter-intuitive that trolls get higher awards, that is probably because they are better positioned to “forum shop” than the company that is developing and operating a business around the patents. The report noted that cases by non-practicing entities are concentrated in a relatively small number of forums, with 10 courts accounting for 56 percent of nonpracticing entity suits. It looks like most plaintiffs are banking on Texas justice: the Eastern District of Texas alone accounted for 12 percent of decisions involving nonpracticing entities.
For both practicing and nonpracticing entities, the report bears out the common sense belief among lawyers that juries give higher awards than judges. Between 2006 and 2011, patentees prevailed at jury trials 76 percent of the time, compared to 59.3 percent of the time at bench trials.
So, if you are a patent plaintiff, you want a jury trial in Texas if at all possible. The alleged infringer wants to be almost anywhere else, taking his or her chances with a judge.
Here’s an update on the Andy Warhol “Peel and See” Banana case, where the trademark rights of one party collide with the copyright rights of another. Very briefly, the Velvet Underground rock group is suing the Estate of Andy Warhol over the Estate’s licensing of the famous banana image. Bottom line: The Velvet Underground is out of luck on their copyright claims because they had signed a release years earlier that promised that they would not sue over the Estate’s use of the iconic image. The Velvet Underground argued that the court still needed to determine whether the Estate had copyright rights in the image but the court was unmoved by their arguments, holding “None of them has merit.” The Velvet Underground’s trademark claims are still alive so this saga will continue.
|The Federal Circuit caused quite a stir in the patent world last week when it drastically changed the rules for asserting and proving inducement of patent infringement claims. My partner, Terry Clark, our resident patent guru, wrote the following article to alert our clients to these changes with the able assistance of Brian Iverson. I thought it would make a great blog post as well. Both Terry and Brian are key players in Bass’ intellectual property group and I’m honored to have them as guest stars on the blog. Without further ado, here’s Terry and Brian’s post: Continue reading