Federal Circuit Clarifies Venue Rule for Foreign Defendants Post-TC Heartland

The Federal Circuit today in In re HTC Corp., Misc. 2018-130 (May 5, 2018), followed the holding of the Supreme Court in Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U.S. 706 (1972), that venue is proper as to a foreign defendant in any district.  In so doing, the court found that recent amendments to the venue statutes did not change the conclusion in Brunette and rejected the argument that the patent venue statute should apply to foreign defendants. Continue reading this entry

An Opportunity for Clarity on Assignor Estoppel: Mentor Graphics v. EVE-USA

In patent litigation, assignor estoppel is a common law doctrine that can dramatically alter the rights of both parties involved – when applicable it is dispositive on the issue of patent validity. However, despite the import of this doctrine, there is a lack of clarity of how and to whom this doctrine applies and even to whether this defense exists at all post-Lear. This article summarizes the current landscape of assignor estoppel claims, and highlights the risks to plaintiffs and defendants as to the continuing lack of clarity that this area of the law poses.

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Is the International Trade Commission the Most Patent-Friendly Venue with a Complainant Success Rate Near 90%?

There are many advantages to pursuing relief for patent infringement in the International Trade Commission (ITC) compared to U.S. district court, but one that receives little attention is the success rate for complainants (plaintiffs). The rate has been climbing for years and reached nearly 90% for cases decided on the merits in 2017.  With such a high rate of success and the many other advantages for complainants, the ITC should be on every patent owner’s radar.

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Second Circuit Suggests that the Value of an Accused Secondary Use Dictates What Constitutes Fair Use

In a recent decision, the Second Circuit further clarified the confines of permissible fair use, reversing the district court’s ruling that functionality that enabled customers to search for videos by term, and to view and archive such videos, was protected fair use. In doing so, the court relied on its “Google Books” fair use decision but here concluded that TVEyes had “exceeded those bounds.”

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Case to Watch: Goldman v. Breitbart, involving embedded Tweets of Tom Brady recruiting Kevin Durant in the Hamptons

The Southern District of New York has teed up an important copyright issue for interlocutory appeal, which could create a circuit split with the Ninth Circuit’s 2006 decision Perfect 10, Inc. v. Amazon.com, Inc.  On March 19, Judge Katherine Forrest certified for interlocutory appeal her February 15 summary judgment decision favoring the copyright owner, Justin Goldman.  In her summary judgment decision, she rejected the publishers’ argument that “embedding” Tweets with the allegedly-infringing photo was not copyright infringement, expressing skepticism with the Ninth Circuit’s “Server Test” set forth in Perfect 10 v. Amazon.

This copyright action stems from a photo that Goldman took of Tom Brady with Danny Ainge (the GM of the Boston Celtics) and others in the Hamptons in 2016 when the Celtics were attempting (unsuccessfully) to recruit Kevin Durant. Three days later, Durant announced he would sign with the Golden State Warriors.

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