On April 14, HMS attorneys Gloria Phares and Chris Strong filed an amicus brief in the Second Circuit supporting the Authors Guild in its hotly contested case against Google over the use of copyrighted works in the Google Books Library Project, The Authors Guild v. Google, Inc., 13-4829-cv. The brief was filed on behalf of a diverse group of seventeen authors, including Pulitzer Prize winning nonfiction writers, Booker Prize winning novelists, and a Nobel laureate. The amici take the position that Google’s decision to copy tens of millions of books is not a fair use, and that the district court’s decision stretched this doctrine far beyond its limits. The brief, filed on behalf of Malcom Gladwell, J.M. Coetzee, Michael Pollan, Margaret Atwood and thirteen other authors is available...
Read MoreHoffmann Marshall Strong LLP is excited to welcome experienced IP practitioner and former colleague Gloria Phares to the firm. Gloria previously was a partner at Patterson Belknap Webb & Tyler LLP and joined HMS as of counsel on January 1, 2014. Gloria’s vast experience in copyright law and other matters involving intellectual property—from licensing and advising to litigation and appellate work—supplements the strengths of HMS in these...
Read MoreA few weeks ago, we wrote regarding an anti-troll patent reform bill introduced into the House of Representatives. As an update, that bill, now known as the Innovation Act (HR 3309) has passed in the House by a vote of 323-89 (according to the facebook post of a law school professor of a certain HMS...
Read MoreTwo days ago Judge Posner of the 7th Circuit (sometimes referred to as the “10th Justice” and portrayed by HMS partner Sean Marshall in a law school musical) issued an opinion available here that set forth the reasons HMS was formed and shows the advantages a firm such as HMS can bring to the table. This lapse is worth noting because it is indicative of a widespread, and increasingly troublesome, discomfort among lawyers and judges confronted by a scientific or oth‐ er technological issue. “As a general matter, lawyers and sci‐ ence don’t mix.” Peter Lee, “Patent Law and the Two Cul‐ tures,” 120 Yale L.J. 2, 4 (2010) … ; David L. Faigman, Legal Alchemy: The Use and Misuse of Science in Law xi (1999) (“the average lawyer is not merely ignorant of science, he or she has an affirmative aversion to it”). … The discomfort of the legal profession, including the ju‐ diciary, with science and technology is not a new phenome‐ non. Innumerable are the lawyers who explain that they picked law over a technical field because they have a “math block”—“law students as a group, seem peculiarly averse to math and science.” David L. Faigman, et al., Modern Scientific Evidence: Standards, Statistics, and Research Methods v (2008 student ed.). But it’s increasingly concerning, because of the extraordinary rate of scientific and other technological ad‐ vances that figure increasingly in litigation. -Judge Richard...
Read MoreLast week a new bill was introduced to the House that would reform patent litigation procedure. Its intent is to bring down the cost of patent litigation, with specific hopes of reducing nuisance litigation brought by so-called non-practicing entities (sometimes more lovingly referred to as “patent trolls”). Such entities have been able to coerce settlements from large corporations by inflating the costs of discovery to the corporations. The non-practicing entities can demand large document productions that require expensive collection, hosting, and review. At the same time, because the non-practicing entities do not have the large document history or e-mail traffic of large corporations, the costs of their own discovery are much lower and they do not have to worry about retaliatory demands increasing costs and swaying any cost-benefit analysis. While expensive discovery is not unique to patent litigation, this asymmetry creates a special problem. Where large corporations are facing off against one another, both sides have an incentive to negotiate to limit discovery to more reasonable levels. While the new legislation covers a wide variety of changes to patent law, here are a few of the highlights: 1) Heightened pleading requirements Following the decisions of Aschroft v. Iqbal, 556 U.S. 662(2009) and Bell Atl. v. Twombly, 550 U.S. 544 (2007), complaints in a Federal Court required a more specific articulation of facts leading to a cause of action than had existed previously. The Federal Circuit, however, did not read Iqbal and Twombly to have much of an effect, if any, on the standard for pleading in a patent case that only involved direct infringement. In such cases, a complaint for direct patent infringement requires merely an allegation of jurisdiction, a statement that the plaintiff owns the patent, a statement that the defendant has been infringing the patent, a statement that the plaintiff has given the defendant notice of its allegations, and a demand for an injunction and damages as is contained in Form 18 of the model forms for pleadings in the Federal Rules (in cases involving indirect infringement, more particularized facts were usually required as to the indirect acts). See, e.g, R+L Carriers, Inc. v. DriverTech LLC, 681 F.3d 1323 (Fed. Cir. 2012). The proposed legislation would essentially...
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