AmiCOUR IP Group News and Opinions

Case Watch:
USSC to Hear MS v. i4i

Microsoft  Mandamus:
Putting East Texas
In the Rear View Mirror?

Spelled Right or Wrong?
Settled Case Leaves Domain Rights Unsettled

Independent Inventor:
Ripoff Allegations Over
Heinz Ketchup Package


12(b)(6) On False Marking:
"Intent" Drives Dismissal


Welcome to the AmiCOUR IP Blog.  We invite your comments.  Past Issues.

November 30, 2010 - The Supreme Court agreed to hear Microsoft's appeal of last year's Texas jury award on i4i's infringement claim of its XML patent. Microsoft challenged the "clear and convincing" standard of legal review applicable to invalidation, also typically applied to court review of agency decisions. The outcome may have far reaching impacts on patent portfolios. View documents.

November 11, 2010 - The AmiCOUR IP Group blog has covered Microsoft's follies in East Texas, but now one victory can be scored for the software giant: A writ filed with the CAFC to change venue to Washigton State has succeeded.  Although statistics differ, juries in East Texas are considered favorable to patent litigation plaintiffs; however, the case of Allvoice v. Microsoft will now be heard in the defendent's home state.  Allvoice is a United Kingdom company with virtually no presense in Texas, so this may not be a game changer as some have speculated.

November 11, 2010 - A motion for stipulated dismissal has likely ended a "must watch" trademark case against Google and a host of co-defendants.  Filed in the Eastern Division of Illinois, the 94 page amended complaint in Vulcan Golf, LLC  ( v. Google, Inc. ( alleged a host of interesting web content production techniques using what the plaintiffs called "deceptive domains." The class action plaintiff's opening paragraph allegations were explosive: "This case involves a shockingly deceptive Internet-based modern day racketeering scheme (“Deceptive Domain Scheme”) that is being intentionally carried out by Defendants through the use of sophisticated and proprietary technology/software that allows them to generate and transact in billions of dollars in ill-gotten advertising and marketing revenue annually from blatant and intentional violations of federal and state laws that govern the domain name system (DNS), Internet-based commercial/business practices, intellectual property and trademark rights, and related laws. In a nutshell, the scheme uses illegal domain names on the Internet to generate and transact in billions of dollars of revenue, at Lead Plaintiffs’ and the putative Class Members’ expense." The allegations were numerous and sometimes technically complex, but included "typosquatting" which involves misspellings of trademarks converted to domain names for ad harvesting. During the early course of the litigation, Google responded but sealed several documents.  The settlement is likely to leave several legal questions and theories unsettled for now.

November 4, 2010 - USA Today recently reported the legal struggles of an independent inventor who claims he invented and disclosed his new idea for the Dip & Squeeze ketchup package to Heinz, who then launched new product packaging based on his technology.  Although a Heinz spokesman told reporters Heinz believes the lawsuit is meritless, plaintiff David Wawrzynski stated that he met at company offices with Heinz managers in 2008 who asked him for samples of his invention to use in a focus group. He claims the company launched its new ketchup packaging after backing out of the deal.  AmiCOUR's research team located a1977 issued patent by Wawrzynski, number 5,676,990, titled Method of food article dipping and wiping in a condiment container.

November 3, 2010 - After a second bite at the apple, including a chance to plead facts in support of its claim that false patent marking appeared intentional, Judge Klausner dismissed Shizzle Pop, LLC v. Aviva Sports, Inc. et al. with prejudice for failure to state a claim.  Initially, many of the allegations in the complaint contained the commonly used wording "upon information and belief" and the plaintiff was then invited to add more specificity.  After the second round, the Judge dismissed and stated that the complaint “contains no information supporting the belief that Defendants were acting with an intent to deceive. Further factual detail is needed to survive a motion to dismiss under Rule 9(b).”  The AmiCOUR IP Blog has been following false patent marking cases this year.  An upcoming LES Viewpoints article co-authored by AmiCOUR's CEO will address the plaintiff's burden to prove intent as one of very few remaining defenses which may hold back the tidal wave of cases.