New England IP Blog

Covering intellectual property developments in New England, and other developments that impact New England companies.

Category Archives: Attorneys’ Fees & Ethics

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“Blatant and Unapologetic” Judge Shopping Warrants “Exceptional Case” Determination

In a dramatic conclusion to the nearly seven year old patent litigation between Datatern and Microstrategy (including a number of Microstrategy’s customers), Judge Saylor in the District of Massachusetts recently awarded attorneys’ fees based on Datatern’s “blatant and unapologetic” judge shopping in the early stages of the case.… Continue Reading

Summary Judgment Stalemate in Copyright Spat Between Former Collaborators

The Institute of Electrical and Electronics Engineers, Inc. (“IEEE”) is the well-known engineering standards organization often cited in patent litigations to inform issues ranging from claim construction to the state of the art. A recent decision from the District of New Hampshire gives an inside look at how the IEEE’s standards are made, and perhaps … Continue Reading

Plaintiff Torpedoed with Attorneys’ Fees for “Objectively Unreasonable” Copyright Claim

In a recent decision from the District of Connecticut, Judge Meyer awarded attorneys’ fees against a plaintiff who the court found brought an “objectively unreasonable” copyright infringement claim based on an unpublished work of non-fiction. Plaintiff Joseph Leary’s 2013 action alleged that a book written by defendants Roy Manstan (“Manstan”) and Frederic Frese (“Frese”), and … Continue Reading

Cold to Mootness Challenge, But Warm to Inequitable Conduct Defenses

In a recent opinion from the District of Massachusetts, Judge Woodlock provided a reading on the mootness of an inequitable conduct counterclaim, where the asserted claims of the thermometer patent at issue were previously invalidated in the same litigation.  Because the parties had already poured resources into addressing inequitable conduct as an alternate theory for patent … Continue Reading

Electronic Return Receipt Patent Dispute Dubbed “Exceptional Case” After Summary Judgment Award

In the long-standing patent dispute between Sophos and RPost, Judge Casper recently issued the oft-sought but rarely received award of attorneys’ fees, after finding that the case was “exceptional.” The suit began in 2013, when Sophos sought a declaratory judgment of non-infringement and invalidity against RPost’s patent, which was directed to a “system and method … Continue Reading

Rising Tide of State-Enacted Patent Reform

It started with Vermont in 2013. Since then, over half the states have enacted legislation aimed at curbing patent infringement suits from non-practicing entities. Now, the band may add another member: Massachusetts. Taking a page from those who came before it, Massachusetts styles its bill as one for consumer and business protection, and targets entities engaged in … Continue Reading

On Appeal, No Fee Shifting Credit for LevelUp

In a recent patent appeal involving a Boston-based mobile payment startup, the Court of Appeals for the Federal Circuit signaled its reluctance to disturb district courts’ discretion in fee shifting decisions. The Federal Circuit affirmed, without a written opinion, the District of Massachusetts’ decision denying LevelUp an award of attorneys’ fees, even though LevelUp had won summary … Continue Reading

Massachusetts Court Clears Patent Prosecutors of Malpractice Claims Arising From Representation of Clients in Same Technology Area

The Massachusetts Supreme Judicial Court yesterday affirmed a lower court’s dismissal of a legal malpractice suit finding that, “simultaneous representation by a law firm in the prosecution of patents for two clients competing in the same technology area for similar inventions is not a per se violation,” of certain Massachusetts attorney professional conduct rules. The … Continue Reading

Serial Adversaries Are Still No Big Deal

Judge Indira Talwani issued an order on plaintiff Erik Cherdak’s renewal of his motion to disqualify, which we talked about last year in Serial Adversaries Are No Big Deal. And once again, she found that for Cooley, serial adversaries are still no issue. Judge Talwani again found no evidence that Cooley’s representation of two separate … Continue Reading

U.S. Supreme Court Further Clarifies Indirect Infringement Standards

The Supreme Court in the last several years has taken an activist approach to the area of patent law, granting certiorari in many more cases than in prior years and often reversing the Federal Circuit. If there was one theme running through those decisions, it is that the Court is trying to bring more certainty and … Continue Reading

LevelUp’s Pursuit of Attorney’s Fees Goes Up to the Federal Circuit Level

In an interesting case before Judge Timothy S. Hillman in the District of Massachusetts, a dispute over whether attorney’s fees should be granted is moving up to the Federal Circuit. The case brings back before the Federal Circuit the question of the proper standard for granting attorney’s fees – a standard that has been in … Continue Reading

Don’t Sleep on Rule 37 Motions

What do you get when opposing counsel repeatedly cancels depositions only days before they are scheduled, allegedly fails to abide by confidentiality agreements and court orders, and repeatedly files supposedly baseless motions requiring substantive responses? Perhaps nothing. At least that appears to be the case from a recent order issued in Massachusetts federal court.… Continue Reading

Serial Adversaries Are No Big Deal

Massachusetts District Court Judge Indira Talwani reminded litigants that for lawyers to be conflicted out of a case, they must be on the other side of the “v” from a former client, not a former adversary, since the issue is ultimately whether counsel will be constrained from vigorous representation of their new client.  The order concerned a case … Continue Reading
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