Thursday, November 6, 2014

Dallas Buyers Club Injunctions Slapped Down

There are several Dallas Buyers Club cases pending here in Seattle. As is happening around the country, DBC is pushing forward to get subscriber information and then demanding settlements. These settlements include a stipulated injunction against any further infringement. The terms of hose stipulated injunctions don't really matter too much to the subscribers, but they create substantial marketing value for DBC.

Frequently a court is willing to enter pretty much any agreement between the parties if it means the case is settled. After all, if that's what both parties want to settle the dispute, then so be it. But inevitably a judge comes along who actually reads these injunctions with an eye toward fairness. Judge Jones in Seattle is one such judge. Rather than just rubber stamp the injunctions, Judge Jones called out problems that rendedered them unenforceable.

More specifically, Judge Jones wrote that the "court encourages the resolution of disputes, but the court declines to affix its imprimatur to an injunction order (which comes with the consequence of civil contempt for violations) under these circumstances. The court will not enjoin parties unknown to it, it will not enter a permanent injunction absent a judgment unless the parties cite authority permitting the court to do so, and it will not enter an injunction that has no effect other than to require the parties to follow the law."  See Order below.

In a nutshell, Judge Jones is telling the DBC folks that the Court will not attach the dignity of the Federal Judiciary to a simple marketing ploy for the purpose of generating even more and more strong-arm settlements. Good for him. Good for us all.

The entire order is embedded here:

Thursday, October 23, 2014

WLG Assists Inventor To Patent Victory

The Whitaker Law Group and the Mann Law Group represented Mr. Tom Lalor in his patent infringement litigation that just culminated in a jury verdict in his favor. Mr. Lalor invented a more comfortable dog collar that included raised areas on the collar housing to help reduce the pressure on the dog's neck. The reduced pressure results in fewer sores and a generally more comfortable experience for the dog.

Apparently his invention was attractive, because after seeing it at a dog show in 2004, the "Invisible Fence" company came out with an infringing product. Some letters were exchanged, and this law suit ensued.

The case started in April of 2010 and had a long, tough haul to finally get to a jury. The case was initially dismissed back in 2012 but appealed to the Federal Circuit, which reinstated the case. After a couple more years litigating, the case finally went to trial in October of 2014.

The Whitaker Law Group assisted the Mann Law Group at trial and had to overcome some substantial hurdles to secure victory. For example, the defendants (the "Invisible Fence" people) were able to knock out Mr. Lalor's technical expert before trial on procedural grounds, which could have severely impacted Mr. Lalor's ability to prove his case. Not to fear, through the able and skilled cross examination of Phil Mann, Mr. Lalor was able to prove his case using the defendants' own expert witness.  Why hire your own expert witness when you can just use the other side's?

Other surprises awaited us during trial, but at the end of the day, the jury handed down a verdict in Mr. Lalor's favor. The verdict is embedded below.

For any of you in the area who want to hear some really interesting war stories, get in touch with me and we can have coffee. As usual, this case had some extremely surprising and interesting moments.

Friday, August 29, 2014

Dallas Buyers Club: UPDATE

NOTE:  Someone called my office this morning and left a message for me to call them back regarding this case, but unfortunately I cannot make out the phone number that was left on the recording.  Female voice, calling on behalf of her husband.  If this was you, please try calling my office again:  206-436-8500.

So as expected, the Dallas Buyers Club filed their motion for expedited discovery (see below) asking for leave to get the names of 10 subscribers.  Last week, Judge Jones granted that motion and gave the subscribers 30 days from notice to quash the subpoenas.  It looks like this case may be going the same way as the earlier cases, referred to by the plaintiff in its "Notice of Related Cases" (see below).

Thursday, July 31, 2014

Dallas Buyers Club Comes To Seattle

There has been much already written about the Dallas Buyers Club copyright cases; DieTrollDie even has a whole page dedicated to following the Dallas Buyers Club suits.  So it was inevitable. The Dallas Buyers Club cases have finally reached Seattle.

The Lowe Graham Jones firm just filed a new complaint against 10 Does here in the Western District of Washington. The complaint is below.  The case is styled: Dallas Buyers Club v. Does 1-10, Case No. 2:14-cv-01153 (WAWD).

Like other similar cases brought here, this case was assigned to Judge Lasnik, who did not receive well the prior round of copyright suits. Read Judge Lasnik's comprehensive order dismissing most of the other cases under FRCP 12(b)(6).

Tuesday, June 24, 2014

Is The Federal Circuit Patent-Friendly?

As a technology lawyer, I frequently hear complaints (generally from the defense bar) that the Federal Circuit is "so patent friendly."  There's a recent post by Timothy Lee at about how the Supreme Court has to rein in the rogue Federal Circuit. Mr. Lee is apparently pretty vociferous about his opinion too, sharing it on the Washington Post and ArsTechnica. Many people share Mr. Lee's opinion, but why?

I did find one guy who at least said, wait a minute.  Are they really that patent-friendly? So are they?

So here's the simple question: Is the Federal Circuit patent-owner friendly like many people say? There seems to be a simple way to find out. Rather than ponder and wonder, why don't we just take a look at how the Federal Circuit actually rules on patent cases.  So I decided to do just that.

It was a bigger task than I envisioned, but I went to the Federal Circuit website and downloaded every patent-related decision they handed down so far this month (June). Then I read each one and simply determined whether (1) the lower court ruled in favor of the patent-owner or the accused-infringer, and (2) whether the Federal Circuit ruled in favor of the patent-owner or the accused-infringer. The results might surprise you, although they didn't surprise me.

In June of 2014 (through today, so far), the Federal Circuit has handed down 18 patent-related cases. So of those 18 cases, how many times did the Federal Circuit hold for the patent-owner?

Once. That's right, once. The score this month is 17-1 in favor of the accused-infringer.

So far, the actual evidence seems pretty overwhelming. For a court that is so patent-friendly, they sure seem to hide it well. If the patent-owner is likely to lose at a rate of 17-1, where is this so-called bias? And if there is in fact a bias, which side does it favor?

I plan to expand my research and check out more cases over a longer period, although it takes a fair amount of work. The Federal Circuit really likes its per curium Rule 36 affirmances, which of course don't say anything about the lower decision.

Monday, June 9, 2014

What Is Happening To Our Profession?

So lawyers really have a bad reputation. I've been practicing law for nearly twenty years, and I have often tried to tell myself that all the ill will towards my profession is undeserved. But I fear I'm fighting a losing battle. Ordinary people just don't trust lawyers.

And when I read articles like this one I wonder why they should. Before you read on, understand that I personally condemn this kind of conduct as the absolute antithesis of professionalism. I would never, even against my most bitter rival, ever employ such tactics.

So there's this defamation suit going on down in Florida.  Law firm of Adams & Diaco on one side; C. Philip Campbell on the other. I knew nothing about either firm before reading this article. I wish I still knew nothing about them.

Mr. Campbell, the lawyer for one side, was sitting in a bar one evening when along came the good Miss Personious to keep him company. By all accounts, Miss Personious was very flirty with Mr. Campbell, and tried to get him liquored up.  By the end of the evening, Miss Personious had convinced Mr. Campbell to drive her home in her car. So far, one would assume that Miss Personious was just a hooker.

As Mr. Campbell pulled out of the parking lot with an intoxicated Miss Personious in the passenger seat, he was pulled over by Florida's not-so-finest.  Mr. Campbell was charged with driving under the influence and arrested.

The absolutely shocking part of the story, which I left out until now, is that Miss Personious was not a hooker. She was a paralegal at Adams & Diaco; that's right, the law firm on the other side of the case from Mr. Campbell.


Turns out it was not. Miss Personious had been plotting with the partners of Adams & Diaco all night--exchanging countless text messages and phone calls to report on the developments of the evening. Amazingly, one of the partners of Adams & Diaco had actually arranged for his friend at the Tampa Police Department to have an officer pull Mr. Campbell over as soon as he pulled out on the street in Miss Personious' car.

Hogwash you say. This can't be proven. This must just be the biggest coincidence in the history of coincidences. But actually, it's true. Phone logs and records confirm the events. There may have even been some admissions. I just can't believe anyone would be so spiteful, let alone an entire group of thugs and bandits.

These people don't deserve a law license. They don't deserve a driver's license. Anyone who thinks that these kind of tactics are the right way to do business just doesn't belong in polite society.

Link to charges against one of the partners, Adam Filthaut

Wednesday, April 2, 2014

WLG Assists Mann Law Group Secure Patent Infringement Jury Verdict

The Whitaker Law Group joined the Mann Law Group recently to try the case of GuideTech, Inc. v. Brilliant Instruments, Inc. The case involves U.S. Patent No. 6,226,231 ('231 Patent), which relates to devices for measuring very, very small time differences for a long time.  These are called Continuous Time Interval Analyzers, and they are used to test high-speed digital components.
We tried the case to a jury, and after four verdicts, GuideTech finally secured a win of infringement against its rival manufacturer.
The trial was short, but amazingly unpredictable. There's a very interesting story about the jury changing its mind about one verdict pretty much as the gavel was coming down. I'll have to share that one after post-trial motions are over.

Sunday, February 9, 2014

Playboy Sues Over Kate Moss Photographs

Magazine sues for copyright infringement over unauthorized use of photographs
Kate Moss (By Michel Haddi)
What better way to celebrate your 40th birthday than by having naked pictures of yourself shared on the Internet?  Famed fashion photographers Mert Alas and Marcos Piggott have captured the naked essence of Kate Moss for Playboy magazine.

Harper's Bazaar publisher, Hearst Communications, has been sued for the unauthorized distribution of several images that were scheduled to come out in the 60th anniversary issue of Playboy magazine. Lots of celebration was planned and expected. 

Then, out of the blue, apparently Harper's posted on its website a clothed photo of Kate Moss with a link to another website showing the good stuff:: nude and partially nude photos of the 40-year old super model.

Woo hoo.

Of course, there's nothing new about nude pictures of Kate Moss.  Just use Google and you can have all the nude pictures you want. But this is different.  This is a 40-year old super model. A woman with a couple years under her belt who still looks almost as good as when she was 18; some would say better. 

This case is really about stealing Playboy's thunder.  They wanted to celebrate their 60th birthday by demonstrating to the world that when you're good, age is just a number. Then Harper's steps in and practically ruins the whole thing. What good is a surprise party when the guest of honor has already been tipped off?  Sure, it's still a party; but it's not a surprise party.

And that's what we have here.  Playboy got pissed because Harper's largely eliminated all the hype and anticipation of seeing a 40-year old model in a 60-year old magazine. There's a lot of intangible value to that.  Just ask any soldier or policeman about the element of surprise. Dropping something on someone before they know about it is a huge benefit.

And that's why we have these silly things called "laws" to guard against things like this. I actually had a potential client call me the other day and ask me if I thought it was "ethical" for a rights-owner to try and protect its intellectual property rights. I didn't know what to say. Is it ethical to get an advance copy of highly secretive images and publish them to the Internet just to garner some pre-publicity for yourself?

Propriety aside: There are laws to which society must adhere. What happens when someone decides that silly "murder" law shouldn't be complied with? What happens when someone likes your stuff more than theirs? We are a nation of laws; they should be respected and enforced even-handedly.

People should be no more persecuted for minor indiscretions than they should be for the willful disregard of the rights of others. Is it right to demand $100,000 from everyone who made an unauthorized use of your copyrighted material?  Not always, but sometimes yes. Undeniably, yes.

Good luck to Playboy in this case.  I hope they make Harper's pay.

Wednesday, January 22, 2014

Judge Rice Dismisses Elf-Man's "Indirect" Theory of Liability

Well, you can't win them all. The other day I wrote about Judge Lasnik's ruling that an IP address alone was insufficient to sustain a complaint for direct or contributory copyright infringement. Today, Judge Rice ruled exactly the opposite.

To recap, some of the defendants in the Elf-Man case in Eastern Washington filed the same motion that was filed in the Western Washington Elf-Man case. Actually, Mike Matesky prepared and filed the same motion on behalf of several of his clients who happen to be in both the Eastern and Western Districts.

So now the layperson gets to see how the sausage is made.  Two different judges in two districts that sit right next to each other are both presented with the same motion filed against the same complaint by the same plaintiff.  One judge grants the motion, the other judge denies most of it.

Why you ask?  Who knows!

The point is there is no clear cut answer in litigation.  One of the most frustrating things for me when speaking with new clients is that they seem to think the law is cast in stone, unbendable and absolute--all the answers must be clear-cut.


I don't care how well you think you know the facts and the law, I guarantee you cannot predict what a judge or jury will do; I don't care what you read on wikipedia.  After all, these are human beings with their own experiences and mindsets. Everyone is different.

So if you call me and ask "what's going to happen with my case," maybe you can understand a little better why the answer is always "I don't know."  I can give you an educated guess, but there is no way to know for certain what will happen.  In litigation, you just have to accept the uncertainty and roll with it.