February 5th, 2010
Website Agreement
Ninth Circuit
Omstead v. Dell, Inc.
2008-16479
USDC ND California
Given plaintiffs’ apparent clickwrap assent to the website sales agreement provisions which trail below, as well as plaintiffs having waited five months to file their motion for reconsideration of the district court’s arbitration order and two months to file the parties’ joint status statement following a judicial order, was the district court correct to dismiss on Fed. R. Civ. P. 41(b) failure to prosecute and binding arbitration grounds plaintiffs’ class action lawsuit predicated on allegations defendant designed, manufactured and sold defective notebook computers offered online, in view of the Federal Arbitration Act, 9 U.S.C. §§ 1-16, the Restatement (Second) of Conflict of Laws § 187 and Oestreicher v. Alienware Corp., 502 F. Supp. 2d 1061 (N.D. Cal. 2007)?
U.S. TERMS AND CONDITIONS OF SALE
. . . .
11 Governing Law.
This Agreement and any sales thereunder shall be governed by the laws of the State of Texas, without regard to conflicts of laws rules.
. . . .
13 Binding Arbitration.
Any claim, dispute, or controversy . . . between Customer and Dell . . . shall be resolved exclusively and finally by binding arbitration administered by the National Arbitration Forum . . . . neither Customer nor Dell shall be entitled to join or consolidate claims by or against other Customers, or arbitrate any claim as a representative or class action . . . .
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Tags: 502 F. Supp. 2d 1061, 9 USC, Adhesion, Alienware, Arbitration, Clickwrap, Conflict of Laws, Contract, Dell, Federal Arbitration Act, Governing Law, Oestreicher, Online, Sale, Unconscionable, Website Agreement
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February 5th, 2010
Patent Infringement
Federal Circuit
SEB S.A. v. Montgomery Ward & Company, Inc.
2009-1099, -1108, -1119
USDC SD New York
On review, should reversal obtain due to: (1) the district court’s claims construction of a limitation “completely free with respect to the pan” to mean “practically or functionally free” given the full patent disclosure; (2) the jury’s finding of infringement under the doctrine of equivalents based on its evaluation of expert testimony and the tribunal’s rejection of defendants’ prosecution history estoppel argument; (3) the district court’s decision to admit an expert witness over defendants’ objections the witness lacked credible expertise in the pertinent art; (4) a lack of clarity as to whether the jury had determined damages either exclusively or in some combination of 35 U.S.C. § 271(a), direct infringement, or (b), inducement of infringement; (5) the district court’s ruling not to reduce the damages award despite defendants’ argument the record failed to support that plaintiffs had marked substantially all of patented articles pursuant to 35 U.S.C. § 287(a) or, in the alternative, plaintiffs had withheld documents relevant to patent marking; (6) the district court’s denial of defendants’ motion for a new trial which alleged counsel for plaintiffs had made an improper closing argument concerning reasonable royalty damages by mentioning “substantial profit” since the district court had already rejected plaintiffs’ claim for lost profits; and, (7) the district court’s decision to set aside awards for enhanced damages and legal fees in light of the intervening opinion In re Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007)?
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Tags: 35 USC 271, 35 USC 287, 497 F.3d 1360, Claims Construction, Doctrine of Equivalents, Enhanced Damages, Expert Witness, Inducement, Infringement, Patent Marking, Prosecution History Estoppel, Royalty, Seagate
Posted in U.S. Patent | Comments Off
February 5th, 2010
Patent Infringement
Federal Circuit
ResQNet.com, Inc. v. Lansa, Inc.
2008-1365, -1366, 2009-1030
USDC SD New York
In respect of several patents asserted for computer screen and terminal emulation technologies, did the district court commit clear error by holding one patent valid and infringed, another patent uninfringed, damages could be calculated by a hypothetical royalty of 12.5% plus prejudgment interest, defendant’s future activity with certain technologies would be subject to a license from plaintiff at the 12.5% rate, and Fed. R. Civ. P. 11 sanctions against plaintiff and its counsel were merited because plaintiff’s counsel had continued to assert patents that plaintiff already admitted were not infringed? (J. Newman dissent)
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Tags: Damages, Fed. R. Civ. P. 11, Infringement, License, Royalty, U.S. Patent
Posted in U.S. Patent | Comments Off
February 5th, 2010
Defamation
Tenth Circuit
Peterson v. John Grisham
2008-7100
USDC ED Oklahoma
Under Fed. R. Civ. P. 12(b)(6) and Okla. Stat. tit. 12 § 1441, did the district court commit material error in dismissing public officers’ second amended complaint against renowned legal-fiction author John Grisham that alleged libel per se, intentional infliction of emotional distress and false light invasion of privacy based upon the author’s alleged defamatory statements contained in a book The Innocent Man, which published fictional accounts concerning the actual wrongful convictions for rape and murder of men who later were exonerated after spending more than a decade in jail?
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Tags: 1441, False Light, Fed. R. Civ. P. 12(b)(6), Intentional Infliction of Emotional Distress, John Grisham, Libel Per Se, Okla. Stat. tit. 12, Privacy, The Innocent Man, Wrongful Conviction
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February 5th, 2010
Copyright
First Circuit
Latin American Music Company v. ASCAP
2008-1498
USDC Puerto Rico
Was the jury properly instructed at trial regarding the manner by which a purported exclusive copyright license, which did not specify a date or otherwise provide for termination, could be effectively terminated where the sole evidence in support of termination had comprised videotaped testimony from an officer of the licensor’s predecessor stating he had orally terminated the license during an executive conversation?
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Tags: Copyright, Exclusive License, Termination
Posted in Copyright | Comments Off
February 5th, 2010
False Advertising
Fourth Circuit
Foster v. Wintergreen Real Estate Company
2008-2356
USDC WD Virginia
Did the district court err when it dismissed plaintiff real estate investors’ complaint for lack of standing to sue a real estate agency on false advertising claims pursuant to 15 U.S.C. § 1125(a) based upon the court’s determination that plaintiffs were mere consumers and not competitors as required by Made in the USA Found. v. Phillips Foods, Inc., 365 F.3d 278 (4th Cir. 2004)?
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Tags: 15 USC 1125(a), Consumers, False Advertising, Standing
Posted in Trade Identity | Comments Off
January 28th, 2010
Invasion of Privacy
Third Circuit
Boring v. Google Inc.
2009-2350
USDC WD Pennsylvania
Had the district court erred by dismissing counts alleging invasion of privacy, trespass, negligence and conversion that arose from defendant having utilized digital cameras to record and display publicly panoramic, navigable images under its “Street View” program which depicted color imagery of plaintiffs’ residence, including their swimming pool, captured from defendant’s vehicle in plaintiffs’ residential driveway without defendant obtaining any privacy waiver or authorization and given the presence of a clearly marked sign “Private Road, No Trespassing”?
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Tags: GOOGLE STREET VIEW, Right of Privacy
Posted in Right of Privacy | Comments Off
January 27th, 2010
Copyright
First Circuit
Massachusetts Museum of Contemporary Art Foundation, Inc. v. Büchel
2008-2199
USDC Massachusetts
Here, an artist only partly had completed a commissioned three-dimensional work, “Training Ground for Democracy,” which was to comprise a mock village enabling museum visitors to role-play social and political behaviors; consequently, the museum sought court order to display the unfinished artwork in public and it prevailed, and therefore questions pertaining to the Visual Artists Rights Act, 17 U.S.C. § 106A, were reviewed, specifically: (1) do an artist’s moral rights extend to incomplete creations, (2) does a right of integrity attach to such creations to bar distortions, mutilations or modifications prejudicial to the artist’s reputation or honor and, moreover, must prejudice be shown for both injunctive relief and damages purposes, and (3) does an artist hold the exclusive right to prepare works derivative of the creative elements actually finished where the artwork had been commissioned but not completed?
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Tags: 17 U.S.C. 106, Copyright, Derivative Works, Moral Rights, Right of Integrity, Visual Artists Rights Act
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January 27th, 2010
Patent License
Federal Circuit
Lawler Manufacturing Company, Inc. v. Bradley Corporation
2009-1390
USDC SD Indiana
On motion for order to declare termination of a license agreement formed in the wake of patent and trade secrets litigation, had the district court erred in its determination that the rightsholder had failed to provide adequate notice of termination pursuant to the agreement based on contentions the licensee had not paid over the royalties agreed or properly marked the licensed goods with patent information? (J. Bryson dissent)
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Tags: License Agreement, Notice, Patent, Patent Marking, Royalties, Termination, Trade Secrets
Posted in Intellectual Property Licensing | Comments Off
January 25th, 2010
Patent Infringement
Federal Circuit
Boehringer Ingelheim International GmbH v. Barr Laboratories, Inc.
2009-1032
USDC Delaware
Can a terminal disclaimer filed in the course of litigation overcome an obviousness-type double patenting determination by the district court given the supposed invalidating reference had already expired or does 35 U.S.C. § 121 provide safe harbor to plaintiff where the patent in contention is a divisional patent of a divisional of a common application for which a restriction requirement had been entered? (J. Dyk dissent)
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Tags: 35 U.S.C. § 121, Divisional, Double Patenting, Infringement, Restriction Requirement, Terminal Disclaimer, U.S. Patent
Posted in U.S. Patent | Comments Off