Posted on

35 U.S.C. § 287(a) and the Burdens of Providing Notice for Pre-Suit Damages: Packet Intelligence LLC, v. Netscout Systems, Inc.

In Packet Intelligence LLC, v. Netscout Systems, Inc. the Federal Circuit reversed a jury determination for pre-suit damages, and vacated an enhancement of such damages, for Netscout’s infringement of U.S. Patent 6,665,725, U.S. Patent 6,839,751, and U.S. Patent 6,954,789, all owned by Packet Intelligence. The patents at issue were all directed to monitoring packets exchanged over a computer network. The ‘798 patent includes system claims, and the ‘725 and ‘751 patents include method claims. It was important in this case that infringement of the various system and method claims have different requirements to qualify for pre-suit damages. Pre-suit damages for the system claims are controlled by the marking requirements of 35 U.S.C. § 287(a), whereas pre-suit damages for the method claims are not. With respect to the method claims of the ‘725 and ‘751 patents, Packet Intelligence argued that evidence of direct infringement of the ‘725 and ‘751 patents was…

Read more

Posted on

Willful Infringement Allegations Require More Than Conclusory Statements

In a recent decision from the United States District Court for the District of Nevada, the court granted a motion to dismiss willful infringement allegations for lacking plausible factual allegations. IP Power v. Westfield , No. 2:19-cv-01878-MMD-NJK (D. Nev. June 4, 2020). This case centers around U.S. Patent No. 6,817,671, which is directed to a collapsible, reclining camp chair with a footrest and cupholders.  The plaintiff sued the defendant after multiple correspondences were exchanged between the parties.  In its complaint alleging patent infringement, the plaintiff also asserted that the defendant engaged in conduct rising to the level of willful infringement.  The defendant filed a motion to dismiss the willful infringement allegations, and the defendant’s argument centered on a single paragraph in the complaint.  That paragraph recited that: In addition, it is believed that [defendant] knew of the 671 Patent and/or licensed products before [defendant] developed its Accused Instrumentalities and copied…

Read more

Posted on

No Attorney Fees for § 101 Dismissal: Data Scape Ltd. v. Spotify USA Inc.

Despite a refiled case and a subsequent dismissal for ineligible subject matter, plaintiff Data Scape escaped paying attorney fees to defendant Spotify in a recent decision from the Central District of California.  Data Scape Limited v. Spotify USA Inc. et al., No. CV 19-4367 PSG (SKx) (C.D. Cal. Dec. 3, 2019). Data Scape is apparently a patent assertion entity, and Spotify is a well-known music streaming service. Spotify successfully convinced the district court to dismiss Data Scape’s claim for patent infringement, and then Spotify filed a motion for sanctions, the subject of this decision. Because Spotify’s motion is based on Data Scape’s litigation conduct, the timeline of events is important. The dispute began with Data Scape filing an earlier suit for infringement of U.S. Patent Nos. 9,712,614; 9,380,112; 7,720,929; and 7,617,537, all in the same family. Spotify moved to dismiss the suit under § 101 for ineligible subject matter. Instead…

Read more

Posted on

Attorney Fees for Suing on Patent that “Looks Like Alice”

After dismissing a lawsuit alleging infringement of US Patent No. 9,569,755 (“Financial Management System”), Delaware’s Judge Richard Andrews has awarded attorney fees under Octane Fitness and 35 U.S.C. § 285, finding an exceptional case because claims of the ’755 patent were so clearly ineligible under 35 U.S.C. § 101 and the Mayo/Alice abstract idea test. Finnavations LLC v. Payoneer, Inc., Civil Action No. 1: 18-cv-00444-RGA and 1: 18-cv-00445-RGA (Mar. 18, 2019). Judge Andrews acknowledged that “the law of patent eligibility has perhaps become unpredictable and unclear on the fringes,” but stated that he had “rarely been more confident in the patent ineligibility of a set of claims or more confident in the unreasonableness of a Plaintiff’s decision to sue on a patent.” Here is one of the claims that prompted these comments: 1. A method for transferring payment information to a personal financial management program comprisinginvoking a financial assistant operating…

Read more

Posted on

Attorney Fees Awarded for Post-Alice Patent Litigation

The Federal Circuit has affirmed an award of attorney fees under 35 USC § 285 against a patent owner that pursued its case alleging infringement of a business method patent after the US Supreme Court decided Alice Corp. v. CLS Bank Int’l. in June 2014. Inventor Holdings, LLC v. Bed Bath & Beyond Inc., No. 2016-2442 ( Fed. Cir. Dec. 8 2017) (opinion by Judge Chen, joined by Judges Wallach and Stoll; precedential). Claims of US Patent No. 6,381,582 recite methods for processing payments for the sale of goods. The court agreed that, “following the Alice decision, [the patent owner’s] claims were objectively without merit.” A fee award was therefore justified. The District Court had granted the defendant’s motion for judgment on the pleadings based on patent-ineligibility under 35 USC § 101 in August 2015; and the Federal Circuit affirmed this decision in April 2016. Once that appeal was complete,…

Read more