District of Massachusetts IP Blog

ARMS Case Sent Back to Judge Saris

The various ARMS cases have been mentioned several times in this blog.  One of them went up to the Federal Circuit, which just issued its decision.  In it the Federal Circuit affirmed Judge Saris’ invalidation of ARMS’ Reissue Patent No. 39,465 (directed to a firearm handguard) for failing to meet the written description requirement, but it also vacated a million dollar jury verdict because of a potential jury taint issue.  The appeals court’s logic was as follows: 

Vlingo Wins Nuance Patent Trial

Following a (previously mentioned) bitter litigation that Judge Zobel had described as an "all-out war", after a three and a half week trial a jury deliberated for four hours to find that Vlingo did not infringe Nuance's Patent No. 6,766,295.  The jury also found the patent valid.

The war doesn't stop here.  In addition to the appeal, the parties are also engaged in four other patent suits in Delaware and the U.K.

Nuance Communications, Inc. v. Vlingo, Corp., 09-11414-RWZ (D. Mass. Aug. 9, 2011)

Quick Trial Leads to Infringement Verdict

After filing a complaint in April and moving for a preliminary injunction, Hologic was granted an expedited trial on the merits by Judge Young (as is his practice) against IZI Medical Products.  Hologic originally accused IZI of patent and trade dress infringement but by the time the case went to the jury in mid-July, the case was pared down to infringement of three claims.  The jury returned a verdict for Hologic on two out of three claims.  Post trial motions are sure to follow, and while they are unlikely to change the outcome in front of Judge Young, it has been known to happen.

Hologic, Inc. v. IZI Medical Products, LLC., 11-10619-WGY (D. Mass. Jul. 13, 2011)

No 93A Liability for CAD Knockoff

Following a jury trial, Real View LLC and its founders were found not liable for copyright infringement, trade dress infringement, or interference with contract for their creation of computer-aided kitchen design software that deliberately mimicked the design of a similar program of 20-20 Technologies.  Real View was, however, found liable for copyright infringement for downloading an illegal copy of 20-20's program and was hit for over $1M in damages. 

Following trial, Judge Saris took up the question of whether Real View’s other activities (improperly accessing 20-20’s tutorial videos, copying 20-20’s marketing scheme, etc.) violated 93A.   

Post-Trial Motions Leave No 93A Liability for Competing Carpet Installers

Carpet installers Empire Today and National Floors Direct (NFD) were engaged in a dispute stemming from fierce direct competition and the departure of roughly ten managers and thirty sales representatives from Empire to NFD “under acrimonious conditions.”  

At trial (a rare occurrence before Judge Tauro) Empire asserted trademark infringement and various tortious interference claims against NFD.  NFD asserted counterclaims for defamation, false advertising and abuse of process.  The jury found against the plaintiff on all its affirmative claims and in favor of defendant on its abuse of process counterclaim, awarding $500,000 in damages.  Each party cross moved for JMOL as well as for judgment on dueling 93A claims.  Judge Tauro’s eventual decision was to leave the parties in the same condition the jury left them. 

Zobel Performs Triage With Bickering Parties

Judge Zobel quickly worked her way through a number of pending motions in a patent case she has previously characterized as “all-out war.”  In two pages she set a trial date, ordered both CEOs to sit for depositions, denied a request to stay pending re-exam (an earlier request to stay was also denied), and denied a request to release protected information that would just lead to “yet another lawsuit.”  (That last request was denied without prejudice pending the outcome of the present case.) 

In a final bit of exasperation, Judge Zobel noted: 

 

No Accounting Of Profits Following Trademark Verdict

Following a trial, a jury found that defendants had engaged in unfair competition and false advertising for improper use of the trademark FISHMAN, but declined to find the defendants’ conduct willful.  In this post-trial decision Judge O’Toole correspondingly declined to grant plaintiff’s request for an accounting of defendant’s profits.  

The court ruled that following the First Circuit’s test an accounting was not justified because (1) defendant’s profits were not a measure of harm to plaintiff since the parties were not in direct competition, (2) an accounting would not avoid unjust enrichment because the defendants acted innocently and an accounting was otherwise uncalled for based on factors enumerated in the Restatement of Unfair Competition, and (3) the defendants’ conduct was not willful as found by the jury (and seconded by the judge). 

Fishman Transducers, Inc. v. Paul, 07-10071-GAO (D. Mass. Mar. 29, 2011)

One A.R.M.S. Case Hits Final Judgment

As noted in previous posts (here and here) local weapons maker A.R.M.S. had succeeded at trial on a trade secret claim against a former employee and his new company, but had met defeat on summary judgment on its patent infringement claim.  Judge Saris has now entered final judgment on the above claims (including a $1.8M judgment against the defendant) and a counterclaim for patent infringement has been dismissed for lack of prosecution.  No doubt that $1.8M verdict against it had some impact on Defendant’s failure to proceed on the counterclaim. 

Atlantic Research Marketing Systems, Inc. v. Troy Industries, Inc., 07-11576-PBS (D. Mass. Sep. 2, 2010)

Airplane Wi-Fi Disputes Grounded

Ambit Corp. had separately sued Delta Airlines and Aircell LLC for infringement of Patent No. 7,400,858 in a dispute over the defendants’ Gogo Inflight Internet system.  Delta’s attempts to invalidate the patent on sua sponte summary judgment were unsuccessful (see here), but Aircell was able to convince a jury that the asserted claims were invalid for a host of reasons including anticipation, obviousness, inadequate written description, and lack of enablement.  (See the verdict form here: Download Ambit.)

 

A few weeks after the jury verdict, Ambit settled with Aircell and Delta and the cases were dismissed.

 

Ambit Corp. v. Delta Air Lines, Inc., 09-10217-WGY (D. Mass. Aug. 17, 2010)

Ambit Corp. v. Aircell LLC, 09-10217-WGY (D. Mass. Aug. 17, 2010)

My Experience Serving Jury Duty in Federal Court in Boston

Or, how, by the skin of my teeth, I missed sitting on a three-week long criminal trial on the first day of a new job.

 

Please forgive the non-IP nature of this rather lengthy post, but I thought it might provide insight into one way juries are selected in the District of Massachusetts.

 

Federal jury service in Massachusetts is based on an “on-call” system of three weeks.  I received my summons a number of months ago indicating that my first on-call day was December 28, 2009, the Monday after Christmas.  As instructed, I called the week before and learned that my services were not needed.  I repeated this process each week until I received notice on Saturday January 9, 2010 that I was needed on Monday January 11.

 

Several months earlier I had the experience of serving on a one and a half day civil jury trial in Massachusetts state court.  This was quite educational from the perspective of a practicing litigator and I was very much looking forward to the opportunity to serve as a juror in a federal case.  But the timing for this summons was terrible as I had just left my previous firm (where I had been for 10 years) and was scheduled to start with my new firm on that Monday.  Unfortunately the time to request a rescheduling had long passed so I reported as summonsed at 8 a.m. at the Moakley Federal Courthouse in Boston.  [Note that in Massachusetts jury service in state court does not excuse you from later federal service unless you sit on a trial that is at least five days long; whereas federal jury service excuses you from later state service (within three years) regardless of length of service.  The federal jury clerk explained that this is due to the large number of potential state jurors called each year (~1.2 million) drastically outnumbering the number of potential federal jurors called each year (~20 thousand)].

 

From a juror’s perspective, the procedure runs about as smoothly as possible.  The courthouse in Boston is conveniently located to public transportation and there is parking across the street.  (Though I still feel bad for the folks who had to get there by 8 a.m. from Nantucket or Martha’s Vineyard.)  Transportation to the courthouse is reimbursed up to a very reasonable pre-set limit.  The facility itself is gorgeous (even after all these years of practice I love looking out onto the water from the atrium) and well appointed.  The jury room had juice, coffee, and water.  The clerks were friendly, accommodating, and efficient. 

 

When we checked in we were given several papers including a pamphlet from the Administrative Office of the U.S. Courts describing jury service which provided some insight into how trials work.  After each juror had checked in and the paperwork was completed we were shown a 20 minute video on jury service.  I personally found the video a bit corny and slanted from the point of view of correcting the perception that jury service is a hassle rather than a civic duty.  (Judge Young actually handles this remarkably well, as noted below.)  I was also amused by the repeated shots of early 1990s Washington, DC. 

 

Following the video the clerk spoke to the jury pool, provided some helpful administrative information, and informed us that only Judge Young and Judge Gorton were set for trials that day and that the pool would be divided in half between them.  I was juror number 38 for Judge Young’s pool and we headed up in a group.  This was good and bad.  Good because I have had a number of experiences with Judge Young including attending his On Trial MCLE course, attending many bar events with him, and appearing before him in a patent trial last spring, set to be re-tried in just a few months; also it would be immensely educational to sit as a juror in one of his cases.  Bad because I didn’t want Judge Young mad at me for trying to get out of jury duty.

 

If you haven’t heard Judge Young’s speech / civic lesson to prospective jurors, it’s worth sitting in his courtroom during jury selection to hear it.  It is eloquent and heartfelt, and makes one want to serve as a juror.  I certainly would have wanted to had it not been for my employment situation.  Following the introduction he gives some preliminaries of the case and explains the case schedule.  This case was to be a three-week long criminal trial of two defendants with trial days from 9 a.m. to 1 p.m. (as is Judge Young’s standard practice).  A 16 person jury would be empanelled. 

 

Prior to seating jurors in the box Judge Young asks a number of preliminary questions such as do you know any of the parties, lawyers, etc. or do you have any important reason why you cannot serve.  All those who answer yes have a chance to explain themselves.  I went up and explained my employment quandary, as well as the fact that I had a number of depositions forthcoming.  Judge Young did not dismiss me and asked me to stay.

 

16 jurors were then called to the box.  I believe they were jurors 1 through 18 so a few must have either been dismissed or no-shows.  Eight were promptly dismissed by the parties.  The process continued until there were fourteen confirmed jurors and two seats to fill.  My name was then called.  I was worried that as juror number 38 the parties would be out of challenges.  I was asked to state my name, occupation and my spouse’s occupation.  I stated that I was an intellectual property litigator who was supposed to start a new job that day.  Perhaps I used a voice which said “don’t pick me” because during the next side-bar I was stricken by the prosecution (side-bars can be easy to read if you know what’s going on).

 

I was dismissed and headed over to my new job, getting there just before lunch.

 

I’m sorry I missed what would have likely been a fabulously interesting experience, but I’m also glad I didn’t start my new job three billable weeks in the hole.