Last week the Supreme Court heard arguments in a duo of cases regarding attorney fees in patent cases, and the meaning of the Patent Act's Section 285 language that allows a "court in exceptional cases may award reasonable attorney fees to the prevailing party." The arguments were concluded before the two-hours allotted for argument, and the most exciting news from the Supreme Court was unrelated to attorney fees, notes SCOTUSblog.
Nycal Offshore Development Corporation just learned a lesson on pushing things too far. It was one of several oil companies that were involved in litigation against the United States, beginning in 2002, over breach of contract claims related to the Government's actions preventing the oil companies from drilling.
All the other companies, except Nycal, accepted restitution awards from the Government.
Court of Federal Claims
Nycal, instead, took it further and sued for lost profits, and presumably to its surprise, lost. The Court of Federal Claims found that though the Government could have foreseen that damages would result from its breach, Nycal nonetheless did not prove that the Government actually caused the damages, and that the damages could not be reasonably calculated.
Last time, the question was whether a declaratory judgment action, seeking a ruling of non-infringement, shifted the burden of proof to the party pursuing the ruling (the alleged patent infringer).
This time, the issue again involves a shifting burden of proof, though the issue is complicated by questions of prior art and obviousness.
Last December, the Federal Circuit held that, once an alleged infringer discloses prior art, the burden of proof shifts to the patent holder to demonstrate that the patent should not be deemed obvious on that basis. Now, a petition for rehearing is pending, with amicus briefs attached.
Metcalf Construction Company's bid was chosen for a Navy contract to build military housing in Oahu, Hawaii. Initially, the contract stated that Metcalf would build 188 units by March 2005, however after many modifications, the final agreement required 212 units by October 17, 2006 for an amount just below $50 million.
In the pre-request report, the Government included preliminary soil test results that could have impacted the building project, and noted that further testing was required once the project was started.
After Metcalf did its own testing, the results were far more serious than anticipated, which resulted in delays, additional costs, and changes to design.
Litigation is a notorious time sucker, but a patent case dragging on for ten years? That's just too long according to the Federal Circuit, who not only vacated and remanded the Patent Trial and Appeal Board ("Board") decision, but urged a "speedy resolution."
Patent 6,554,446 History
Tivoli owns patent 6,554,446 ("'446"), relating to a reflective material "stair-step lighting apparatus" to "alert users to the location of step edges in darkened or low light environments." In 2004, Tivoli sued Tempo for patent infringement, and after an inter partes reexamination, and decision by an examiner, Tivoli appealed to the Board. On February 24, 2012, the Board handed down its decision.
Circuit Court procedures often are so complex that they seem arbitrary. A senior judge can hear a case, but he can't vote on en banc rehearing. He can dissent from a panel rehearing denial, but not an en banc rehearing denial. He can sit on the en banc panel but can't vote or dissent on granting the rehearing.
If that sounds confusing, welcome to the party. Senior Judge Plager was equally confused, and irritated, and expressed as much in a footnote to his dissent, calling the original decision and judge-created rule for determining disability levels for veterans a "miscarriage of justice."
The controversial rule, by the way, clarifies which disability rating applies to veterans, arguably conflicts with applicable regulations, and should lead to more unfavorable rulings for veterans seeking disability benefits.
In the latest battle of the Harmonized Tariff Schedule of the United States ("HTSUS"), Link Snacks, Inc. goes up against the U.S. as the two battle over the very meaning of ... beef jerky products.
What Is Beef Jerky Anyway?
Link Snacks, Inc. imports beef jerky products from New Zealand and Brazil. I've always stayed away from beef jerky because it looks nothing like beef -- but now that I understand the process, I understand why it looks that way, though I will still never eat it (barring unforeseen natural disasters that would necessitate the eating of beef jerky for survival).
The process goes something like this: the beef is sliced, cured for 24 to 48 hours, and then cooked/smoked for three-to six hours, which results in dehydrated meat. (Ew).
Last year, the Federal Circuit gave us that warm-and-fuzzy feeling. You know the feeling -- it's the one you get at the end of the movie where the good guy wins. That feeling.
Robert MacLean was a federal air marshal. Shortly after learning of a hijacking plot, the Transportation Security Administration (TSA) decided to pull air marshals off of certain flights. If that sounds like an idiotic response to you, you're simpatico with MacLean, who first complained to his supervisors, then leaked the plan to MSNBC.
Long story short: MacLean was fired, even though the information wasn't classified as Sensitive Security Information (SSI) until after he leaked it. Fortunately, as we reported last year, the Federal Circuit came to the rescue, holding that the Whistleblower Protection Act could apply to his case, and later denied an en banc rehearing. The government is now petitioning for Supreme Court review.
The facts of this case are unremarkable. Medtronic licenses patents from Mirowski for some products. Mirowski noticed that Medtronic was about to release new products, which they claimed infringed upon their patents. They wanted more royalties. Medtronic decided not to wait to be sued and filed a declaratory judgment action, seeking to have a judge rule that the new products didn't implicate the patents at issue.
The trial court ruled in Medtronic's favor, holding that even though they brought the declaratory judgment suit, the burden of proof still fell upon the party alleging infringement. The Federal Circuit disgreed, and reversed, holding that the burden fell on the party that brought the lawsuit.
The Supreme Court, however, disagreed, and shifted the burden of proof back to the patent holder.
It's been a big week at the Federal Circuit Court of Appeals, with a decision in Motorola's patent war with Apple and a computer virus spreading via bogus court emails.
Ready for the roundup? It's Friday, so we'll make it quick: